OJorn^U ICam i'rliODl Sltbrarg KF 4549.T37"'" ""'™™«l' Library ^^ImmtmllmSl!'''' ■■«'»' notes 3 1924 019 913 072 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019913072 CASES ON CONSTITUTIONAL LAW. CASES ON CONSTITUTIONAL LAW. WITH NOTES. BY JAMES BRADLEY THAYER, LL.D. WELD PROFESSOR OF LAW AT HABVAKD UNIVEKSITY. IN TWO VOLUMES. Vol. I. CAMBRIDGE: CHARLES W. SEVER. 1895. PREFACE. In preparing this book I have had chiefly in mind the wants of my own classes at the Harvard Law School ; of these and students elsewhere who follow similar methods of study. I should have been glad to make it more serviceable to others by intro- ducing headnotes, were this consistent, in my opinion, with its best usefulness for the main purpose in hand. It is nearly a year now since the first part of the book appeared. I am led to hope that the completed work may help to promote a deeper, more systematic, and exacter study of this most interesting and important subject, too much neglected by the profession. It appears to me that what scientific men call the genetic method of study, which allows one to see the topic grow and develop nnder his eye, — a thing always grateful and stimulating to the human faculties, as if they were called home to some native and congenial field, — is one peculiarly suited to the subject of Con- stitutional Law. For, while this is a body of law, — of law in a strict sense, as distinguished from constitutional history, politics, or literature, since it deals with the principles and rules which courts apply in deciding litigated cases ; and while, therefore, it is an exact and technical subject ; yet it has that quality which Phillipps, the writer on Evidence, alluded to when he said, in speaking of the State Trials, that "The study of the law is en- nobled by an alliance with history." The study of Constitutional Law is allied not merely with history, but with statecraft, and with the political problems of our great and complex national life. In this wide and novel field- of labor our judges have been pioneers. There have been men among them, like Marshall, Shaw, and Ruffin, who were sensible of the true nature of their work and of the large method of treatment which it required, who perceived that our constitutions had made them, in a limited and secondary way, but yet a real one, coadjutors with the VI PREFACE. Other departments in the business of government; but many have fallen short of the requirements of so great a function. Even under the most favorable circumstances, in dealing with such a subject as this, results must often be tentative and tem- porary. Views that seem adequate at the time, are announced, applied, and developed ; and yet, by and by, almost unperceived, they melt away in the light of later experience, and other doc- trines take their place. Nothing else can bring home to a student the existence and the nature of this process, the large scqpe of the questions presented, and the true limitations of the legal principles that govern them, with anything like the freshness, precision, and force, and I might add also the fascination, which accompany the orderly tracing of these things in the cases. I find a pleasure in thinking that these volumes are appearing in the twenty-fifth anniversaiy year of the accession of Dean Langdell to his chair as a professor at the Harvard Law School. The method of legalstudy with which his name is associated, re- garded as a mere mode of investigation, was indeed no novelty at all ; lawyers have always known well enough the necessity of following it in working out their problems. But Dean Langdell, early in life, had the sagacity to apply it in his own Self-instruction in law, and in his greatly valued help of fellow- students ; and when he came back to the school as a professor, he had the courage and the foresight to introduce here the same method of study, and to lay down for himself a mode of instruc- tion which rigorously drove his pupils to adopt it. Of teaching there has never been at this school any prescribed method. There never can be, in any place where the best work is sought for. Every teacher, as I have said elsewhere, " in law, as in other things, has his own methods, determined by his own gifts or lack of gifts, — methods as incommunicable as his tem- perament, his looks, or his manners." But as to modes of study, a very different matter, Dean Langdell's associates have all come to agree with him, where they have ever differed, in thinking, so far at least as our system of law is concerned, that there is no method of preparatory study so good as the one with which his name is so honorably connected, — that of studying cases, care- fully chosen and arranged so as to present the development' of principles. Doubtless, the mode of study must greatly affect PREFACE. Vli the mode of teaching ; if students are to prepare themselves by studying cases, their teachers also must study them. And, more- over, while good teaching will differ widely in its methods, there is at least one thing in which all good teaching will be alike ; no teaching is good which does not, rouse and " dephlegmatize " the students, — to borrow an expression attributed to Novalis, — which does not engage as its allies, their awakened, sympathetic, and co-operating faculties. As helping to that, as tending to secure for an instructor this chief element of success, I do not think that there is or can be any method of study which is comparable with the one in question. In order to keep this collection within the compass of two vol- umes and yet do anything like justice to the subject, I have selected only the leading titles, and have given to these a fairly full treat- ment, choosing as the text, for obvious reasons, so far as practi- cable, the decisions of the Supreme Court of the United States. I have preferred to make the two volumes as large as they could well be, with any regard to convenient use, and to pack them closely, rather than to take the much easier course of letting the work run over into three or four volumes. In doing this, it has been necessary, almost always, to omit the arguments of counsel. Other omissions are mentioned or sufficiently indicated. JAMES BRADLEY THAYER. Law School of Harvard University. • March 12, 1895. TABLE OF SUBJECTS. VOLUME I. Paet I. Pages TABLE OF CASES xi-xxii CHAPTER I. COMSTITUTIOITS OF GOVERNMENT. — THE THREE DEPART- MENTS.— THE OFFICE OF THE JUDICIARY. Section I. Prkuminaky 1-47' Section II. Written Constitutions in the United States 48-206 CHAPTER II. MAKING AND CHANGING WRITTEN CONSTITUTIONS. . 1. Constitution of the United States 207-213 2. State Constitutions 213-265 CHAPTER III. The Jurisdiction of the United States 266-379 APPENDIX TO PART ONE. 1. Text of THE Constitution OF Massachusetts (1779-1780) 381-400 2. Articles of Confederation (1778-1781) 400-404 3. Constitution of the United States (1787-1789) and its Amendments 405-412 4. Passages from all State Constitutions (other than Massachusetts) preceding that of the United States 415-433 5. Passages from the Colonial Charters of Connecticut (1662) and Rhode Island (1663) 433,434 6. Passages from the Constitution op Colorado (1876) . 434-448 7. Passages from the Constitution of Colombia .... 448 X TABLE OP SUBJECTS. Paet II. CHAPTER IV. Pages Citizenship. — Fundamental Civil and Political Rights. — The Later Amendments to the Constitution of the United States 449-692 CHAPTER V. Unclassified Legislative Power. — The so-called Police Power 693-944 Paet III. CHAPTER VI. The Eight op Eminent Domain 945-1189 VOLUME II. CHAPTER VII. Taxation 1190-1431 Paet IV. CHAPTER yill. Ex Post Facto and Retroactive Laws 1433-1533 CHAPTER IX. State Laws Impairing the Obligation of Contracts . . 1534-1782 CHAPTER X The Regulation of Commerce, — Foreign, Interstate, and with the Indian Tribes 1783-2191 CHAPTER XI. Money. — Weights and Measures 2192-2273 CHAPTER XII. War. — Insurrection. — Military Law 2274-2420 INDEX 2421-2434 TABLE OF CASES. In this Table each case which has the names of two parties is entered twice, that is to say, under both names, — except where these are identical. Ejectment cases are entered a third time, under the name of the fictitious party. As regards cases in the notes, mere citations are omitted. Cases that are cited in the text of another case and somewhat fully stated or explained, are sometimes entered iu the Table. A. Page Abletran v. Booth 479 n. Adams •>. Chic, Burl., & No. R. R. Co. 1137 .^tna L. I. Co., Pleasant Township v. 15 Alabama v. Nashv. &o. Ry. Co. 797 n., 2075 n Smith V. Alger, Com. v. Allen, Darcy v. Hewlett V. V. Inliab. of Jay Mecli. Sav. Bk. ■;. Ailing, Sherlock v. Almy 1). Cal. Am. Ins. Co. v. Canter Amoskeag Co., Head d. Amy Warwick, The Anderson, Terry v. Anonymous Application of Senate Apthorp, Portland Bank v. Arensberg, People v. Arkansas, Beers v. Ash V. The People Asher v. Texas Assessors, The, Van Allen v. Austin V. Cera. Ass. B. 797, 2068 693 15 944 n. 1212 1505 1973 1924 350 760 2339 672 II 181 1416 2180 1556 1274 2063 n. 1358 1749 n, Babcock, Crease v. 1642 Bacheller, Plicenix Nat. Bk. v. 1612 n. Bain, Wells v. 228 Baker, U. S. v. 258 Baldwin v. Hale 1610 n. Ball, Daniel, The, 1930 Ball, Kimmish v. 757 n. Baltimore, Barney v. 360 n. V. Radecke 864 Mayor, &c. of, Barron v. 449 Baltimore & Oh. R. R. Co., Marye V. 2132 Wash. & Bait. Tpk. Co. v. 1641 n. Page Baltimore & N. Y. R. R. Co., Stock- ton V. 20B7 n., 2162 Bank of Commerce v. N. Y. City 1357 Bank Ky., Briscoe v. 1840 n. Bank v. Supervisors 1351 n. Bank of Commerce v. N. Y. City 1.357 Banks, The, v. The Mayor 1351 n. Bank Tax Case 1357 Barber, Minn. f. 2112 Barbier v. Connolly 623 Barney v. Baltimore 350 n. Barron v. Mayor, &c. ot Bait. 449 Bartemeyer v. Iowa 532 Bayard, Den d., v. Singleton 78 Beasley, Burlington v. 1241 n. Beecher, Evergreen Cem. Ass. v. 1004 Beer Co. v. Mass. 757 Beers v. Arkansas 1556 Belfast, The 1822 n. Bell's Gap R. R. Co. .;. Pa. 1407 Bennett, Dennv v. 1610 n. Bertholf a. 0'R"eilly 168 n , 725 Biddle, Green r. 1553 n. Billings, Prov. Bank i'. 1623 Blnghamton Bridge 1753 Bird, Com. i'. 1563 n. Birm. MIn. R. R. Co. v. Parsons 850 Blackbird Creek Marsh Co., Will- son V. 1837 Blacker, MoPherson v. 158 n. Blake, Loughborough ;■. 349 n. Bliss, Cary Library v. 1043, 1580 Bloomington, Gridfey v. 828 Board of Wardens, Cooley 1-. 1879, 1963 n., 2191 Bohm V. Metr. Elev. Ry. Co. 1130 n. Boit, DeLovio v. 1822 n. Bolles, Enstis i'. 1538 BoUman & Swartwout, Ex pane., 2372, 2374 n. Ronham's Case 48 n. Booth, Ableman !>. 479 n. Borden, Luther v. 192, 254, 2352, 2391 Bostick V. The People 1275 n. Boston, Dorgan v, 1296 xu Table of cases. Page Boston, Lowell v. 1224 Norris «. 18ti5 Parks V. 908 n. Roberts v. 576 n. Boston, Cone, & Mont. R. R., Ea- ton V. 1064 Boston & Lowell R. R. Co. i . Salem & L. R. R. Co. 977 Boston & Roxbury Mill Corp. v. New- man 1005 Boston Water Power Co. u. Bost. & Wore. R. R. Co. 969 Boston & Wore. R. R. Co., Bost. W. P. Co. V. 969 Bowman v. Chic. &c. Ry. Co. 2080, 2109 V. Middleton 53 n. Boyle V. Zacliarie 1609 n. Braceville Coal Co. v. People 923 Bradshaw, Rogers v. 984 Bremen, Garbade v. 146 n. Krieger !'. 149 Brennan v. Titusville 2156 Brevoort v. Grace 882 Brewer, Inhab. of, Brewer Brick Co. V. 1218 Brick Co. v. Inliab. of Brewer 1218 Brickett v. Haverhill Aqued. Co. 1183 Bridge Co.; Cardwell r. 2009 n. V. U. S. 1719, 2163 Bridgeport, Farist Steel Co. u. 1031 n. Brigantine William, U. S. t. 1786 Brilliante,,The 2339 Brimmer v. Rebman 2118 n. Briscoe v. Bk. Ky. 1840 n. Bristol, N. Y. &c. R. R. Co. v. 687, 1773 n. Brockton, Kingman v. 1029 n. Bronson v. Kinzie 1645 !). Rodes 2215 Brookharen, Chrisman v. 676 n. Brooklyn, Guest v. 1295 n. Mayor of, People v. 1286 Brown V. Houston 1773, 2022 V. Md. 1826, 1852, 1925, 1960 Man. Co.. State v. 1406 n. Brummell, Lehew v. 574 Budd V. N. Y. 671, 804 Buffalo East Side R. R. Co. i. Buff. St. R. R. Co. 1738 Buffalo St. R. R. Co. v. Buff. East Side R. R. Co. 1738 Bull, Calder v. 890, 1435 Bunbury, Weimer v. . 1203 Burgess v. Seligman 1545 n. Burlington v. Beasley 1241 n. Butchers' Un., &c. Co. !'. Cresc. Citv, &c. Co. . ■ 537 Butz V. Muscatine 1546 n. Byrne, Adm'rs of, v. Adm'rs of Stewart 154 c. Calder v. Bull Caldwell r. Texas California, Almy v. 890, 1435 683 1924 Page California v. Cent. Pac. R. R. Co. 1394, 2163 Hooper v. 2137 n. Hurtado v. 616 Callan v. Wilson 358 Callender v. Marsh 1048 Cambridge, Howe v, 1308 Camden, &c. Ry. Co., West Jersey Ry. Co. V. 1157 n. Camp, Olmstead v. 1011 n. Campbell v. Hall 40 Can. So. Ry. v. Gebhard 1610 Cannon, People «. 841 Canter, Am. Ins. Co. V. 350 CatHwell V. Bridge Co. 2009 n. Carleton v. Rugg 680 n. Carter, Com. v. 836 V. Thurston 1935 n. Carthage «. Frederick 831 Cary Library v. Bliss 1043, 1580 Cast Plate Manufs, Gov. & Co. of, V. Meredith 1045 Caton, Commonwealth v. 65 Cavendish, in tlie Matter of 12 Cem. Ass. Austin v. 1749 n. Central Pac. R. R. Co., Califor- nia r. 1"94, 216.^ V. Gallatin 1693 Chamberlain, City of Norfolk v. 1294 n. Charles River Bridge v. Warren Bridge 1503 n., 1628, 1759 n. Charleston, Jenkins v. 1267 n. Murray v. 1267 n. Weston V. 1346 Charlotte, &c. R. R. Co. v. Gibbes 684 Cherokee Trust Funds 591 n. Chicago, Escanaba Co. v. 2002 Harman v. 2011 n. V. O'Brien 830 ri. Rigney v. 1085 V. Taylor 1083 Transp. Co. v. 1081 Chicago, Burl., & North. R. R. Co., Adams v. 1137 Chicago, Burl., &c. R. R. Co. v. Iowa 1978 n. Chicago &c., Ry. Co., Bowman v. 2080 Lawrence v. 1975 V. Minnesota 660, 1749 n. Peik V. 1975 Chicago & G. T. Ry. Co. v. Wellman 170 Chirac v. Chirac 373 n. Cliisliolm V. Georgia 2P5 Chrisman v. Brookhaven 576 n. Christensen, Crowley v. 798 Church V. Kelsey 1554 n. Chy Lung v. Freeman 1965 n. Civil Rights Cases 654 Clark V. Clark 1513 Mitchell V. 2402 N. 0. V. 1529 U. S. V. 2413 Clinton v. Engelbreoht 857 Close, Fifield v. 1375 Clymer, Norris v. 145 n. TABLE OF OASES. Xlll Page Coe V. Errol 2033 Cohens v. Virginia 285 Cole V. La Grange 1240 n. Collector, The, v. Day 1378 Collier v. Frierson '262 Com'rs V. Moesta 1025 n. People V. 1190, 1363 Com'rs of Erie Co., Dobbins v. 1352 Com'rs of Immigration v. No. Germ. Lloyd 1961 Com. V. Alger 693 V. Bird 1663 n. V. Carter 836 V. Caton 55 V. Coving. Bridge Co. 1753 n. V. Gilbert 890 Green v, 177 V. Ham. Man. Co. 917 V. King 1935 n. Com. Nat. B'k ». 1363 n. V. Perry 918 V. Smitli 155 n. 1/. Westinghouse Co. 1397 n. V. Wyman 1497 n. Com. Kentucky v. Denniaon 195 n. Com. Mass., Plumley v. 2173 Compagnie Gen. Trans., People v. 1967 n. Conn. Riv. Co., Holyoke W. P. Co. v. 1015 n. Conn. Rir. Lumb. Co., Harrigan v. 1934 n. Conn. Riv. R. R. Co. v. Co. Com'rs of Franklin 1179 Connolly, Barbier v. 623 Converse, In re 681 Conway «. Taylor's Ex'r. 1906, 2170 Cook V. Pa. 1989 People V. 1693 n. Cooley V. Board of Wardens 1879, 1963 n., 2191 Coombs, V. S. V. 1822 n^ Cooper V. Telfair 105 Corbett, Donnelly v. 1609 n. CorfieUl V. Coryell 453, 1824 Coryell, Corfield v. 453, 1824 Coster, Tide Water Co. v. 1.302 County of Mobile b. Kimball 1997 County of Pike, Douglass a. 1545 n. County Com'rs, Norwich v. 1194 County Com'rs of Franklin, Conn. Riv. R. R. Co. V. 1179 Covington Br. Co., Com'rs ». 1753 n. Covington, &e. Br. Co. u. Ky. 1978 n., 2164 Craig V. Missouri 2199 Crandall v. Nevada 1?M Crease v. Babcock 1642 Crenshaw, The 2339 Cresc. City, &c. Co., Butcher's Un., &c. Co. V. 537, 1773 Crowninshield, Sturges v. 268, 1582, 1601 n. Crowley v. Christensen 798 Crutcher v. Ky. 2135 Cumraings v. Mo. 1446 D. Page Daniel Ball, The 1930 Uarcy v. Allen 15 Dartmouth Coll. u. Woodward 1564, 1579 n. Dash V. Van Kleeck 1498 Davenport, Fulton v. 1203 n. Sinnot v. 1900 Davidson v. N. 610 Davis I'. Mayor N. Y. 1731 n. Davis, Parker v. 2237 Davis, Raleigh & G. R. R. Co. v. 992 Davis, Tennessee v. 316 Day, The Collector v. 1378 V. Savadge 50 n. Decatur, 111. Cent. R. R. Co. v. 1310 De Cuir, Hall v. 1981 Delaware, &c. Ry. Co., Koch v. 1079 Deliesseline, Elkison v. 1849 n. De Lovio y. Bolt 1822 n. Den d. Bayard v. Singleton 78 Den d. Murray v. Hoboken, &c. Co. 600 Dennis, Vicks. R. R. Co. v. 1678 Dennison, Com. Ky. v. 195 n. Denny v. Bennett 1610 n. Dering, State v. 869 Detroit, Paul v. 1026 n. Devoe v. Penrose Ferry Br. Co. 1894 n. Dewitt, U. S. i: 735 Dinsraan v. Wilkes 2406 Divine, State v. 851 Dix, West Riv. Br. Co. v. 976 Dobbins v. Com'rs of Erie Co. 1352 Donnelly v. Corbett 1609 n. Dorgan v. Boston 1296 Dorrance, Vanhorne's Lessee v. 94 Douglass, In re 1524 n. V. Co. of Pike 1545 n. Doyle, Str. Ry. Co. v. 1159 Drake v. Earhart 1059 n. Draper, People v. 165 Dred Scott v. Sandford 354 n. Drew, Pierce v. 1133 Dubuque, Gelpcke v. 1-541, 1547 Duncan, Johnson v. 2354 V. Mo. 1474 n. Dunham, Ins. Co. v. 1822 n. Dupre', In re, 732 Dyke Board, K. v. 148 Dynes w. "Hoover 2.3.33 E. Eakin w. Raub 133 Earhart, Drake v. 1059 n. East Tenn., &c. R. R. Co , Piukard v. 1682 n. Eaton I'. Bost , Cone, & Mont. R. R. 1064 Edwards ?>. Kearzey 1652 n. Eilenbecker v. Plym. Co. 67.3 Ela V. Smith 2279 Elk V. Wilkina 587 Elkison v. Deliesseline 1849 n. Ellzey, Hepburn v. 348 XIV TABLE OF CASES. Page ■ Emert v. Mo. 2160 n. Emery, Hooper v. 11209 Emmons, Minn. & St. L. Ry. v. 1773 n. Engelbreclit, Clinton v. 357 Engerman, U. S. v. 1183 n. Errol, Coe v. 2033 Escanaba Co. v. Chicago 2002 Essex Co., Hazen v. 1012 Eustis V. BoUes 1538 Evans, Minn. & St. L. Ry. f. 1773 n. V. Myers 2195 n. Evanston, Stubbings v. 967 Evergreen Cem. Ass. v. Beeclier 1004 Evergreen Ey. Co., Borough of Mill- vale V. 1094 n. Ewer, People v. 837 Eairchild v. St. Paul 965 Eall River, Wat. Eeserv. Co. v. 1015 n. Earist Steel Co. v. Bridgeport 1031 n. Farmer's &c. Bank v. Smith 1589 n. Farmer's Loan &c. Co., Reagan v. 1745, 2190 n. Farris v. Henderson 1944 n. Fegely ei al., Weaver v. 2195 n. Fenno, Veazie Bank v. 1334 Ferguson v. Gies 573 n. Ferry Co., Tugwell o. 2022 n. Ferreira, U. S. c. 105 n., 160 Fertilizing Co. v. Hyde Park 1762 Ficklen v. Shelby Co. 2143 Fifield V. Close 1375 Fifth Nat. Bk., N. Y. Elev. E. E. v. 1119 n. Flagg, People v. 1196 Flanders, Rich v. 1517 Fletcher v. Peck 114, 1552 n. V. R. I. 1851 Fobes V. Rome, Watert , & Ogd. R. R. Co. 1115 n. Fong Yue Ting v. U. S. 374 Forbes, Lynch v. 1041 Foreign Held Bonds, State Tax on 1258 Forster K. Scott 1187 V. Forster 1526 Forty-three Gallons, XT. S. v. 373 n. Foster, Lewis v. 1611 n. Franklin, Franklin Needle Co. y, 1223 n. Franklin Needle Co. v. Franklin 1223 n. Frederick, Carthage v. 831 Fredericks, Sproule r. 250 Freeman, Chy Lung v. 1965 n. Freight Co., Greenwood v. 1710 Frierson, Collier v. 262 Fuehring, Reinken v. 832 Fulker, State v. 2109 n. Fuller, R. R. Co. v. 19,i2 n. Fulton V. Davenport 1203 n. G. Gnge, Mach. Co. v. 1992 n. Gage County, Wagner v. 1177 Page Gallatin, Centr. Pac. R. E. Co. v. 1693 Garbade v. Bremen 146 n. Gardner v. Newburgh, Trustees of 979 Garlani, Ex parte 14S3 n. Garrett v. Lake Eol. El. Ry. Co. 1144 n. Garrison v. N. Y. 1654 n. Garza, Neilson v. 1909 Gebhard, Can. So. Ey. v. 1610 Gelpcke v. Dubuque 1541, 1547 Geofrey v. Riggs 373 n. Georgia, Chisholm v. 295 So. Ca. V. 1894 n. V. Stanton 201 Worcester v. 583 Gibbss, Charlotte, &c. E. E. Co. v. 684 Gibbons v. Ogden 266, 269, 730, 1799, 1802 Gibbons, Ogden v. 1800 Gies, Ferguson v. 573 n. Gilbert, Com. v. 890 Gillan v. Gillan 1234 n. Gillson, People w. 169 Gilman v. Pa. 1912 Giozza V. Tiernan 158 n. Gleason v. McKay 1419 Gloucester Ferry Co. o. Pa. 2013, 2169 Glover, H use t). 1333 n., 2010 n. Goddard, Pet'r 825 Godden v. Hales 29 Gordon v. U. S. 188 Goshen v. Stonington 1506 Grace, Brevoort v. 882 Grand Rapids Booming Co. v. Jar- vis 1078 n. Grand Trunk Ry. Co., Lafarier v. 2056 Maine v. 2139, 2147 Gray, Kent v. 1517 Trage.=er v. 876 n. Green v. Biddle 1553 n. V. Commonwealth 177 Green Bay Co., Pumpelly v. 1060 Greenman, Juilliard v. 2255 Greenwood v. Freight Co. 1710 Gridley v. Bloomington 828 Griswold, Hepburn v. 2222 Groves V. Slaughter 18-50 Guest V. Brooklyn 1295 n. Gwaltenev v. Scottish, &c. Timber Co. 1986 n. H. Haas, U. S. v. 1909 Hagar v. Reclamation Dist. 1302 n. Hale, Baldwin v. 1610 n. Hales, Godden v. 29 Hall, Campbell v. 40 V. DeCuir 1981 Halsey v. Rapid Trans. Str. Ry. Co. 1151 Hamilton, Ham. Gasl. Co. v. 1692 n. , 1713n. Gasl. Co. V. Hamilton 1692 n , 1713n. Man. Co., Com. v. 917 Hammett v. Phila. 1045 n. , 1308 n. Hancock, Savannah v. 1041 n. TABLE OF CASES. XV Hans V. La. Happersett, Minor v. Hardin, Leisy v. Harman v. Chicago Harmony, Mitchell v Pago 293 459 2104, 2179 2011 n. 2409 Harrigan «. Conn. Kiv. Lumber Co. 1934 n. Harrington, Stoddard v. 1611 n. Harris v. Jex 1550 n., 2254 n. Hart V. Henderson 1523 White V. 259 Hartung v. People 1474, 1486 Harvey v. Thomas 990 Willard v. 1515 n. Hastings v. Haug 824 n. Hatch, Willamette Bridge Co. v. 2075 Haug, Hastings v. 824 n. Haverfiilf Aqued. Co., Brickett v. 1183 Hayburn's Case 105 n., 159, 160 Hayes, People o. 1495 Hays 17. Risher 991 n. Hayward, McCracken v. 1651 n. Hazen v. Essex Co. 1012 Head v. Amoskeag Man. Co. 760 Money Cases, The 758, 1340 n. Heine B. Levee Com'rs Co. 1657 Heinemann, State v. 876 n. Henderson, Farris v. 1944 n. Hart V. 1523 V. Mayor of N. Y. 738, 1961 Henniek, Stoutenburgh v. 2098 Hepburn v. EUzey 348 V. Griswold 2222 Hewlett V. Allen 944 Higginson ». Nahant 1026 Hill, Koehler v. 262 Hinson v. Lott 1926 n. Hoagland, Wurts v. 768 Hoboken, &c. Co., Den. d. Murray v. 600 Hodges, Ex parte 859 Holden b. James 882 n. Holliday, U. S. b. 731, 1909 Holman, Watkins b. 160 Holyoke Water Povper Co. u. Conn. Riv. Co. 1015 n. Home of Friendless v. Rouse 1676 n. Home Ins. Co. v. N. Y. 1399 Hooper b. Emery 1209 V. California 2137 n. Hoover, Dynes v. 2333 Hopkins, Wo Lee v. 774 Yick Wo B. 532 n., 774 HoptB. Utah 1469 n. Horn Silver Min. Co. b. N. Y. 1412 Horton, Miller v. 1079 n. Hot Springs R. R. Co. v. Williamson 1089 n. Hotchkiss, Kirtland v. 1268 Houston, Brown u. 1773, 2022 V. Williams 184 Howe V. Cambridge 1808 Hudson, Talbot v. 1016 Hunt B. Hunt 1566 n. Hunter's Lessee. Martin v. 123 Hurtado v. California 616 Page Huse B. Glover 1333 n., 2010 n. Husen, R. R. Co. v. 753, 2182 Hyattsville, Wells v. 1191 Hyde Park, Fertiliz. Co. v. 1762 Hylton V. U. S. 1315 Illinois Cent. K. E. Co. v. Decatur 1310 V. Illinois 1778 Illinois, 111. C. E. B. Co. u. 1778 Munn V. 170, 743 Wabash, &c. Ey. Co. v. 2045 la re Est. of Swift 1271 Petition of U. S. 1185 n. Phil. & Trenton B. E. Co. 1090 Bahrer 2123 Indiana Nat. Gas Co., Kincaid v. 1167 n. Ins. Co. B. Dunham 1822 n. Iowa, Bartemeyer v, 532 Chic, B. &c. E. B. Co. .,. 1978 n. J. Jacksonville, Toledo, &e. Ry. Co. ». 856 Jacobs, In the Matter of 627 James, Holden v. 882 n. Jarvis, Grand Rapid Boom. Co. v. 1079 n. Jay, Inhab. of, Allen b. Jefferson Bk. o. Skelly Jenkins b. Charleston Jessup, Tomlinson v. Jewett, Wilkins v. Jex, Harris v. Johnson v. Duncan Mississippi b. Sinnickson v. U. S. B. Jones V. U. S. U. S. V. Juilliard v. Greenman Jumel, La. v. Justices, Opinion of 178, 221, 223, 270 n., 901, 905, 2287, 2294 K. 1212 1676 n. 1267 1690 892 1550 n., 2254 n. 2354 196 983 n., 986 1993 864 952 , 2255 V 1559 K. B. The Dyke Board 148 Kagama, U. S. v. 363 n., 591 Kansas, Mugler v. 782 V. Ziebold 782 Kearzey, Edwards b. 1652 n. Keene, Perry v. 1247 Kelly B. Pittsburgh 1197 Kelsey, Church b. 1554 n. Kent V. Gray 1517 Kentucky, Bk. of Briscoe v. 2207 Covington, &c. Bridge Co .•. 1978 n.. 2164 Crutcher b. 2135 Kidd B. Pearson 796 n. Kimball, Mobile b. 1997 Kimmish v. Ball 757 n. XVI TABLE OF CASES. Page Kincai(J v. Indiana Nat. Gas Co. 1167 n. King, Com. v. 1935 n. People V. 568 Kingman v. Brockton 1029 n. Kingman et al., Pet'rs 1234 n. Kinzie, Bronson v. 1645 Kirtland v. Hotehkiss 1268 Kuiglit Co., E. C, U. S. V. 2185 Kneedler ;;. Lane 2316 Knoop, Piqua Br. St. Bk. c. 1673 Knox V. Lee 2237 Kocli V. Del., &c. Ky. Co. 1079 Koehler v. Hill 252 Kolil V. U. S. 956 Kramer, Omaha v. 1090 n. Krieger v. Bremen 149 Kring v. Mo. 1458 La Grange, Cole v. 1240 Lackey, Oh. & M. Ry. Co. v. 854 Lafarier v. G. T. Ry. Co. 2056 n. Lafarier, Grand Trunk Ry Co. o. 2237 Lahr ». Metrop. Elev. Ky. Co. 1113 n. Lake Roland Elev. Ry. Co., Garrett V. 1144 n. Lake Shore, &c. Ry. Co., Morley v. 683, 1555 n. Lane, Kneedler v. 2316 Lane, Smith, v. 2316 Lawrence v. Chic. & N. W. Ry. Co. 1975 Lawton v. Steele 817 Leader v. Moxon 673 n. Lechmere, Winthrop v. 34 Lee, Knox v. 2237 Sing, In re 861 State V. 1961 n. Leop !,•. St. Louis Ry. Co. 928 Legal Tender Cases 2237 Lehew v. Brnmmel 574 Lehman, Nickels v. 2316 Leisy v. Hardin 2104, 2128, 2179 Leland, Wilkinson v. 1507 n. Leloup V. Mobile 2096 Lemmon v. People 496, 1904 Lent V. Tillson 654 Levee Com'rs, Heine v. 165T Lewis V. Foster 1511 n. Seibert i'. 1660 State V. 824 n. License Tax Cases 737 n., 1276, 1851, 1919, 1925, 2083, 2094 Livingston, North Riv. Stmb. Co. v. 266, 1819 n., 1822 n. ... Van Tngen 266, 1794 Loan Association v. Topeka 169, 1235 Logan r. U. S. 343 Lond. & N. W. Ry. Co., Pickering Phipps V. 1749 n. Look Tin Sing, In re 578 Loomis, State v. 929 Lord V. Meadv. Water Co. 1015 n. Lord, Treat v. 1935 n. Page Lottawanna, The 1822 n. Lott, Hinson v. 1926 n. Loughborough v. Blake 849 n. Louisiana, Hans v. 293 V. Jumel 1559 New Hampshire v. 302 n. Louisiana, Morgan v. 1682 n. Louisiana Bd. Health, Morgan St. Co. V. 2040 Louisiana Light Co., N. O. Gas Co. v. 1773 Louisiana Sug., &c. Co., No. Water Co. V. 1536 n. Louisv. R. R. Co. .,. Miss. 2101 Lowell !,•. Boston 1224 Lumberville Co. v. State Board of Assessors 1415 n. Luther v. Borden 192, 254, 2352, 2391 Luxton V. No. Riv. Br. Co. 2160 Lynch v. Forbes 1041 Lyng V. Mich. 2111 ii. M. McBride, State v. 263 M'Cracken v. Hayward 1651 n. M'CuUoch V. Maryland 271, 1340 McDevitt V. People's Nat. Gss Co. 1163 McGahey v. Va. 1664 McKay, Gleason ». 1419 M'Laren v. Pennington 1644 M'Millan v. M'Neill 1589 n., 1601 n. M'Neill, M'Millan r. 1589 n., 1601 n. McPherson v. Blacker 158 n. Machine Co. v. Gage 1992 n. Mackey, Mo. Pac. Ky. Co. v. 646 Madison, Marbury r. 107 Maine v. G. T. Ry. Co. 2139, 2147 Maltby v. Reading, &c. R. R. Co. 1262 Manistee Riv., &c. Co., Sands v. 2011 n. Mann, State v. 473 Marbury v. Madison 107 Marchant v. Pa. R. R. Co. 1167 Marsh, Callender v. ]048 Martin v. Hunter's Lessee 123 V. Mott 2290 Marx, People v. 632 Marye v. B-. & 0. R. R. Co. 2132 Maryland, Brown v. ' 1826, 1925 M'CuUoch V. 27l', 1.340 R. R. Co. V. 19.53 Singer o. 874 Turner v. 2120 n. Ward V. 1410 Mass., Beer Co. v. 757 Pluniley v. 2173 Thurlow V. 1851 Western Un. Tel. Co. u. 1390 Matthewson, Sattfrlee v. 1617 Mayor, The Banks v. 1361 n. V. Twenty-third St. Ry. Co. 1740 n. Mayor of Brooklyn, People c. 1286 Mayor N. Y., Davis v. 1731 n. Henderson v. igei Miller v. I.546 n., 2008 TABLE OF CASES. ■XV] 1 Mayor N. Y. v. Miln 1840 Mayor of Newark, State o. 1304 Mayor of Paterson, State «. 1307 n. Miiyor of 1*11118., Sharplese ». 1256 n. Meadville Water Co., Lord v. 1015 n. Mech. Sav. Bank v. Alien 1505 MeiUey, Pet'r 1470 n. Meeker, Peart v. 105B Memphis Gasl. Co. o. Taxing Dist. 1627 n. Mercer, Watson v. 1443 Merchant, Spencer v. 647 Merchant's Bank, Tappan v. 1267 Meredith, Gov. & Co. of Cast Plate Manuf's v. 1045 Merry man, fe parte 2861 Met. Elev. Ry. Co., Bohm w. 1130 n. Lahr v. 1113 n. Newman v. 1125 Pondu. 1118 Miantinomi, The 2192 Michigan, Lyn'g v. 2111 n. Walling V. 2028 Middleton, Bowman v. 53 n. Miles, West Chester, &c. Co. o. 678 n. Milhau V. Sharp 1732 Miller v. Horton 1079 n. Miller v. Mayor N. Y. 2008 n. Miller, Pa. K. R. Co. v. 1740 n. V. State 1716 n. V. U. S. 2395 Milligan, Ex parte , 2376 Millvale, Borough of, v. Evergreen Ry. Co. ■ 1094 n. Miln, Mayor N. Y. v. 1840 Milnor v. N. J. R. R. Co. 1896 Minnesota B. Barber 2112 Chic , &c. Ry. Co. v. 660, 1749 n. Minnesota & St. Louis Ry. yell V. Ferry Co. Turck, Pound v. Turner v. Md. V. Nj'e Smith V. Twenty-tliird St. Ry. Co., Mayor Tyler t>. Pomeroy Page 1081 1293 n. 1935 n. 7a 2022 n. 1978 2120 n. 893 1865 V. 1740 n. 2305 u. linger, Morford v. Union Pac. R. R. Co. v. U. S. United States, In re Petition of V. Baiter Bridge Co. v. V. Brigautine William V. Clark V. Coombs V. Dewitt V. Engerman V. Ferreira Fong Yue Ting v. V. Forty-tliree Gallons Gordon v. V. Haas Hilton V. V. HoUiday V. Jolinson V. Jones Jones V. V. Kagama V. E. C. Knight Co. Kohl V. Logan V. Miller v. Mon. Nav. Co. v. Mormon Church v. V. Old Settlers V. Rhodes Shoemaker v. Springer v. V. Steffens V. Texas Un. Pac. R. R. Co. y the assent of a Parliament of Ireland. Whenever the first Parliament was called in Ireland, that change was introduced without the interposition of the Parliament of England ; and must, therefore, be derived from the Crown. Mr. Barrington is well warranted in saj-ing that the statute of Wales, 12th Ed. Ist, is certainly no more than regulations made by the king in his council, for the government of Wales, which the preamble saj-s was then totally subdued. Though, for various political purposes, he feigned Wales to be a feofC of his crown ; yet he governed it as a conquest. For Ed. 1st never pretended that he could, without the assent of Par- liament, make laws to bind any part of the realm. SECT. I.] CAMPBELL V. HALL. 45 Berwick, after the conquest of it, was governed by charters from the Crown without the interposition of Parliament, till the reign of Jac. 1st. All the alterations in the laws of Gasconj', Guienne, and Calais, must have been under the king's authority ; because all the Acts of Parliament i-elative to them are extant. For they were in the reign of Edward 3d, and all the Acts of Parliament of that time are, extant. There are some Acts of Parliament relative to each of these conquests that I have named, but none for any change of their laws, and par- ticularly with regard to Calais, which is alluded to as if their laws were considered as given by the Crown. Besides the garrison, there are inhabitants, property, and trade in Gibraltar: ever since that conquest the king has made orders and regulations suitable to those who live, &c., or trade, or enjoy property in a garrison town. The Attorney-General alluded to a variety of instances, and several very latel3', in which the king had exercised legislation in Minorca : there, there are many inhabitants, much property, and trade. If it is said, that the king does it as coming in the place of the King of Spain, because their old constitution remains, the same argument holds here. For before the 7th October, 1763, the original Constitution of Grenada continued, and the king stood in place of their former sovereign. After the conquest of New York, in which most of the old Dutch in- habitants remained. King Charles 2d changed the form of their con- stitution and political government, by granting it to the Duke of York, to hold of his Crown, under all the regulations contained in the letters- patent. It is not to be wondered at that an adjudged case in point has not been produced. No question was ever started before, but that the king has a right to a legislative authority over a conquered country ; it was never denied in Westminster Hall ; it never was questioned in Parlia- ment. Coke's Report of the arguments and resolutions of the judges in Calvin's Case laj-s it down as clear. If a king (says the book) comes to a kingdom by conquest, he may change and alter the laws of that kingdom ; but if he comes to it by title and descent, he cannot change the laws of himself without the consent of Parliament. It is plain he alludes to his own country, because he alludes to a country where there is a parliament. The authority also of two great names has been cited, who take the proposition for granted. In the year 1722, the Assembly of Jamaica being refractory, it was referred to Sir Philip Yorke and Sir Clement Wearge, to know " what could be done if the Assembly should obsti- nately continue to withhold all the usual supplies." They reported thus: " If Jamaica was still to be considered as a conquered island, the king had a right to levy taxes upon the inhabitants ; but if it was to be considered in the same light as the other colonies, no tax could be imposed on the inhabitants but by an Assembly of the island, or by an Act of Parliament." 46 CAMPBELL V. HALL. [CHAP. L They considered the distinction in law as clear, and an indispu- table consequence of the island being in the one State or in the other. Whether it remained a conquest, or was made a colonj', they did not examine. I have upon former occasions traced the Constitution of Jamaica, as far as there are papers and records in the offices, and can- not find that any Spaniard remained upon the island so late as the Restoration ; if any, there were very few. To a question I latelj- put to a person well informed and acquainted with the country, his answer was, there were no Spanish names among the white inhabitants, there were among the negroes. King Charl«» 2d hy proclamation invited settlers there, he made grants of lands : he appointed at first a gov- ernor and council only : afterwards he granted a commission to the governor to call an assembly. The constitution of every province, immediatelj' under the king, has arisen in the same manner ; not from grants, but from commissions to call assemblies : and, therefore, all the Spaniards having left the island or been driven out, Jamaica from the first settling was an English colony, who under the authority of the king planted a vacant island, belonging to him in right of his crown ; like the cases of the island of St. Helena and St. John, mentioned by Mr. Attorney-General. A maxim of constitutional law as declared by all the judges in Cal- vin's Case, and which two such men, in modern times, as Sir Philip Yorke and Sir Clement Wearge, took for granted, will require some authorities to shake. But on the other side, no book, no saying, no opinion has been cited ; no instance in anj* period of history produced, where a doubt has been raised concerning it. The counsel for the plaintiff no doubt labored this point from a diffidence of what might be our opinion on the second question. But upon the second point, after full consideration we are of opinion, that before the letters-patent of the 20th July, 1764, tlie king had precluded himself from the exercise of a legislative authoritj' over the island of Grenada. The first and material instrument is the proclamation of the 7th October, 1763. See what it is that the king there saj's, with what view, and how he engages himself and pledges his word. " For the better security of the liberty and propertj- of those who are or shall become inhabitants of our island of Grenada, we have declared by this our proclamation, that we have commissioned our governor (as soon as the state and circumstances of the colony will admit) to call an assembly to enact laws," &c. With what view is this made ? It is to invite settlers and subjects : and why to invite. That they might think their properties, &c., more secure if the legislation was vested in an assemblj', than under a governor and council only. Next, having established the constitution, the proclamation of the 20th March, 1764, invites them to come in as purchasers : in further confirmation of all this, on the 9th April, 1764, three months before July, an actual commission is made out to the governor to call an SECT. I.] CAMPBELL V. HALL. 47 assembly as soon as the state of the island would admit thereof. You observe, there is no reservation in the proclamation of any legislature to be exercised by the king, or by the governor and council under his authority in any manner, until the assembly should meet ; but rather the contrary: for. whatever construction is to be put upon it, which, per- haps, may be very difficult through all the cases to which it may be applied, it alludes to a government by laws in being, and by courts of justice, not by a legislative authority, until an assembly should be called. There does not appear from the special verdict, any impediment to the calling an assembly immediately on the arrival of the governor, which was in December, 1764. But no assemblj' was called then or at any time afterwards, till the end of the year 1765. We therefore think, that by the two proclamations and the commis- Bion to Governor Melville, the king had immediately and irrecover- ably granted to all who were or should become inhabitants, or who had, or should acquire property in the island of Grenada, or more generally to all whom it might concern, that the subordinate legislation over the island should be exercised by an assembly with the consent of the governor and council, in like manner as the other islands belonging to the king. Therefore, though the abolishing the duties of the French king and the substituting this tax in its stead, which according to the finding in this special verdict is paid in all the British Leeward Islands, is just and equitable with respect to Grenada itself, and the other British Lee- ward Islands, yet, through the inattention of the king's servants, in inverting the order in which the instruments should have passed, and been notoriously published, the last act is contradictory to, and a viola- tion of the first, and is, therefore, void. How proper soever it may be in respect to the object of the letters-patent of the 20th July, 1764, to use the words of Sir Philip Yorke and Sir Clement Wearge, " it can only now be done, by the assembly of the island, or by an Act of the Parliament of Great Britain." The consequence is, judgment must be given for the plaintiff. 48 NOTE TO PAXTON'S CASE. [CHAP. I SECTION II. WKITTEN CONSTITUTIONS IN THE UNITED STATES. NOTE TO PAXTON'S CASE OF THE WRIT OF ASSISTANCE i (Qcinct's Eep. 51). (nel.) IQuincy's Rep., Appendix I. 520.] But Otis, while he recognized the jurisdiction- of Parliament over the Colonies, de- nied that it was the final arbiter of the justice and constitutionality of its own acts ; and relying upon words of the greatest English lawyers, and putting out of sight the circumstances under which they were uttered, contended that the validity of statutes must be Judged by the courts of justice; and thus foreshadowed the principle of American Constitutional Law, that it is the duty of the judiciary to declare unconsti- tutional statutes void. His main reliance was the well-known statement of Lord Coke in Dr. Bonhani's Case — "It appeareth in our books, that in many cases the common law will control Acts of Parliament and adjudge them to be utterly void ; for where an Act of Parlia- ment is against common right and reason or repugnant or impossible to be performed, the common law will control it and adjudge it to be void." ^ Otis seems also to have 1 By Horace Gray, Jr., Esq., now Mr. Justice Gray, of the Supreme Court of the TTnited States. 1 am indebted to the publishers, Messrs. Little, Brown & Co., and to Joslah Quincy; Esq., of Boston, the owner of the copyright, for permission to reprint here this valu- able note. Quincy's Reports were published in 1865. — Ed. 2 8 Rep. 118 a, quoted by Oti^ ante [Quincy], 474. Dr. Bonham's Case (so far as is material to exhibit this point) was an action of false imprisonment, brought against the president and ceusors of the College of Physicians in London, for committing the plain- tiff to jail for practising medicine in London without their license. The defendants jus- tified, on the ground that it was granted in their charter, and since confirmed by Act of Parliament, that no one should practise medicine in London without license from them, under penalty of 100s. for each mouth, one half to the king, and one half to the college : and it was moreover granted that they should have the supervision of all physicians practising in London, and the punishment of them for malpractice, and the scrutiny of all medicines : " so that the punishment of the same physicians so delinquent in thp premises might be by fine and imprisonment, and other suitable manner." Coke, C. J., Warburton & Daniel, JJ., gave judgment for the plaintiff upon two points : 1st. That the defendants had no power to commit the plaintiff for the cause alleged. 2d. That if they had such power, they had not pursued it. 116 6, 117 a, 121 a. The 2d point need n6t be further noticed here. Of the first point " the cause and reason shortly was " that the clause giving the power to fine and imprison did not apply to those practising without license, but only to those who were guilty of malpractice. " And that was made manifest by five rea- sons, which were called vividce rationes, because they had their vigor and life from th letters-patent and the Act itself," " by construction, and conferring all the parts of them together." 117 a. "And all these reasons were proved by two grounds or max- ims in law : 1. Gmeralis clausula non porrigitur ad ea quae specialiter sunt comprehensa." 118 6. "2. Verba posteriora propter certitudinem addita ad priora quce certitudine indigent sunt referenda." 119 a. The fourth of the reasons thus derived from the whole context, and supported by SECT. 11.] NOTE To PAXTON'S CASE. 49 had in mind the equally familiar dictum of Lord Hobart — " Even an Act of Parliament made against natural equity, as to make a man judge in his own case, is void in itself : legal maxims for restraining the application of general words, was this : " The censors cannot be judges, ministers, and parties; judges to give sentence or judgment; minis- ters to make summons ; and parties to have the moiety of the forfeiture, quia aliquis non debet esse judex in propria causa, imo iniquum est aliquem sum ret esse judicem ; and one cannot be judge and attorney for any of the parties." "And it appears in our books, that in many cases, the common law will control Acts of Parliament, and some- times adjudge them to be utterly void : for when an Act of Parliament is against com- mon right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void." 118 a. And see S. C. 2 Brownl. 265. When this passage was made one of the points of attack against him, Coke called the king's attention to the fact (which had been omitted in the questions drawn up by his enemies. Lord Chancellor Ellesmere and Sir Francis Bacon) that the words of his report did " not import any new opinion, but only a relation of such authorities of law, as had been adjudged and resolved in ancient and former times, and were cited in the argu- ment of Bonham's Case ; " " and therefore the beginning is. It appeareth in our books, etc. And so it may be explained, as it was truly intended." 6 Bacon's Works (ed. 1824), 400, 405, 407. One of the authorities thus referred to was the remark of Herle, C. J., in Tregor v. Vaughan, 8 E. 3, 30, that " some statutes are made against law and right, which they that made them, perceiving, would not put them in execution." The others are either cases in which a limited construction had been given to general words in order to avoid an absurdity; or instances of rejecting repugnant or unfavorable pro- visions, as in other English and American cases. Case of Alton Woods, 1 Rep. 47. CromweU's Case, 4 Rep. 13. Jenk. Cent. 196, pi. 4. Riddle v. White, Gwillim'a Tithe Cases, 1387. United States v. Cantril, 4 Crauch, 167. Sullivan v. Rabbins, 3 Gray, 476. Campbell's Case, 2 Bland, 232. Cheezem v. State, 2 Ind. 149. In a later case Coke is reported to have said " that Fortescno and Littleton and all others agreed, that the law consists of three parts : First, Common Law : Secondly, Statute Law, which corrects, abridges, and explains the common law : The third, Cus- tom, which takes away the common law ; but the common law corrects, allows, and disallows, both statute law and custom ; for if there be repugnancy in statute, or unrea- sonableness in custom, the common law disallows and rejects it, as it appears by Dr. Bonham's Case," &c. Rowles v. Mason, 2 Brownl. 197, 198. In his first Institute he repeats the same classification, adding, " The common law hath no controller in any part of it, but the High Court of Parliament." Co. Lit. 115 6. Again he says, in a passage which seems to have been cited by Otis {ante, 56), " the surest construction of a statute is by the rule and reason of the common law." Co. Lit. 272 /). S. P. Harbert's Case, 3 Rep. 13 6. And in his second Institute, in commenting on the 12th chapter of Magna Charta, declaring that assizes should "not be taken except in their own coun- ties," and on the apparently repugnant decision that " if a man be disseised of a com- mote or lordship marcher in Wales, liolden of the king in capite," the assize should be taken in an adjoining county in England, he says, "the reason is notable, for the Lord Marcher, though he had jura regalia, yet could not he doe justice in his owne case." " Hereby it appeareth (that I may observe it once for all) that the best expositors of this and all other statutes are our bookes and use or experience." 2 Inst. 25. The same rules of construction have prevailed ever since. Acts of Parliament are always to be construed according to the common law and natural right, even if it should be necessary for this purpose to adopt what would otherwise be a forced construction. Fulmerston v. Steward yVlovr. 109. Sheffield v. Ratcliffe, Hob. 346. Williams v. Pritck- ard, 4 T. R. 3. The King v. Inhabitants of Cumberland, 6 T. R. 194. Dwarris on Sts. (2d ed.) 484, 623. The rule has been thus expressed by one of the most exact of mod- ern English judges: "The rule by which we are to be guided in construing Acts of Parliament is to look at the precise words, and to construe them in their ordinary sense, unless it would lead to any absurdity or manifest injustice ; and if it should, so to vary VOL. I. — 4 50 NOTE TO PAXTON'S CASE. [CHAP. I. iovjura natures sunt immutabilia, and they are leges legum."^ Lord Holt is reported to have said, " What my Lord Coke says in Dr. Bonham's Case in his 8 Rep. is far from any extravagancy, for it is a very reasonable and true saying, That if an Act of Par- liament should ordain that the same person should be party and judge, or what is the same thing, judge in his own cause, it would be a void Act of Parliament." ■' and modify them as to avoid that which it certainly could not have been the intention of the legislature should be done." Parke, B., in Perry v. Skinner, 2 M. & W. 476. For an example of American opinion upon this subject, it is sufficient to quote from Chief Justice Marshall the following " principles in the exposition of statutes : " " An Act of Congress ought never to be construed to violate the Law of Nations if any other possible construction remains, and consequently can never be construed to violate neu- tral rights, or to affect neutral commerce, further than is warranted by the Law of Nations as understood in this country." " Every part of the statute is to be considered, and the intention of the legislature to be extracted from the whole ; " and " where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain, in which case it must be obeyed." Muri-ay v. The Charming Betsey, 2 Cranch, 118. United States v. Fisher, lb. 386. The same doctrine has been applied to the construction of a written constitution. Chief Justice Parsons, and his associates (and afterwards in turn successors) Justices Sewall and Parker, in an opinion given to the Massachusetts House of Representatives in 1811, said : " The natural import of the words of any legislative Act, according to the common use of them, when applied to the subject-matter of the Act, is to he consid- ered as expressing the intention of the legislature ; unless the intention, so resulting from the ordinary import of the words, be repugnant to sound, acknowledged princi- ples of national policy. And if that intention be repugnant to such principles of na- tional policy, then the import of the words ought to be enlarged or restrained, so that it may comport with those principles ; unless the intention of the legislature be clearly and manifestly repugnant to them. Por although it is not to be presumed that a legis- lature will violate principles of public policy, yet an intention of the legislature, repug- nant to those principles, clearly, manifestly and constitutionally expressed, must have the force of law." Opinion of Justices, 7 Mass. 524, 525. Thus by weighing Coke's words, and comparing them with his own statements and later authorities, they are relieved from the misconstruction, which has occasioned modern commentators either, like Chancellor Kent, to praise a boldness which Coke never assumed, or, like Lord Campbell, to sneer at what they would not take the trouble to understand. 1 Kent Com. (6th ed.) 448. 2 Campbell's Lives of the Chan- cellors, 248, note. 1 Campbell's Lives of the Chief Justices, 290. 1 Day V. Savadge, Hob. 87. The dispute there was upon the liability of a freeman of London to pay wharfage to the city, and the question was whether this should be tried by certificate of the mayor and aldermen according to the customs of London (which had been confirmed by Act of Parliament) or by a jury. The very paragraph which contains the dictum quoted in the text shows that there was another sufficient reason for ordering a trial by jury. That paragraph, which concludes the opinion, is thus : " By that that hath been said it appears, that though in pleading it were con- fessed that the custome of certificate of the customes of London is confirmed by Parlia- ment, yet it made no change in this case, both because it is none of the customes in- tended, and because even an Act of Parliament, made against naturall equitie, as to make a man judge in his owne case, is void in it seUe, for Jura naturce sunt immutabilia, and they are leges legum." Bracton, with more accuracy, wrote, "Jura enim naturalia dicuntur immutabilia, quia nan possunt ex toto abrogari vel auferri, poterit tamen els derogari vel delrahi in specie vel in parte." Lib. 1, c. 5, § 8. 2 City of London v. Wood, 12 Mod. 687. Approved by Wilde, J., in Commonwealth T. Worcester, 3 Pick. 472, and by Metcalf, J., in Williams v. Robinson, 6 Cush. 335, 336. Nemo debet esse judex in sua propria causa has always been a fundamental maxim of SECT. II.] NOTE TO PAXTON'S CASE. 51 The law was laid down in the same way, on the authority of the above eases, in Bacon's Abridgment, first published in 1735; in Viner's Abridgment, published 1741- 51, from which Otis quoted it; and in Comyn's Digest, published 1762-7, but written more than twenty years before. And there are older authorities to the same effect. So that at the time of Otis's argument his position appeared to be supported by some of the highest authorities in the English law.^ the common law. Chancellor of Oxford's Case, 8 H. B, 18; Bro. Ab. Patent, 15. Lit. § 212. Co. Lit. Ul a. Derbij's Case, 12 Rep. 1 14; 4 Inst. 213. 2 Rol. Ab. Judges, A. Besketh V. Braddock, 3 Bur. 1858. The Queen v. Justices of Hertfordshire, 6 Q. B. 753. Dimes v. Grand Junction Canal, 3 H. L. Cas. 759. Egerton v. Brownlow, i H. L. Cas. 240. Pearce v. Atwood, 13 Mass. 340, 341. Commonwealth v. McLane, 4 Gray, 427. Hush V. Sherman, 2 Allen, 597. Washington Ins. Co. v. Price, Hopk. Ch. 1. Peck v. Freeholders of Essex, Spencer, 475 ; 1 Zab. 657. Governor Winthrop, when accused before the General Court of Massachusetts in 1645 for acts done by him an a magistrate, " coming in with the rest of the magistrates, placed himself beneath within the bar and so Silt uncovered." 2 Winthrop's Hist. N. E. 224. And so did Lord Holt upon the trial in 1693 of a suit brought by the Crown to test his right as C. J. K. B. to appoint the chief clerk for enrolling pleas in that court. Bridgman v. Holt, Show. P. C. 111. Yet an interested judge may act if no other has jurisdiction of the matter. Anon, cited 8 H. 6, 19 6, and Bro. Ab. Judges, 6. Great Charte v. Kennington, 2 Stra. 1173 ; Bur. Set. Cas. 194. The Queen v. Great Western Railway, 13 Q. B. 327. Ranger v. Great Western Railway, 5 H. L. Cas. 88. Commonwealth v. Ryan, 5 Mass. 92. Hill v. Wells, 6 Pick. 109. Commonwealth V. Emery, \lC\is}x. i\\. In re Leefe, 2 Baih. Ch. 39. Or if he is expressly authorized by statute. The King v. Justices of Essex, 5 M. & S. 513. Commonwealth v. Worcester, 3 Pick. 472. Commonwealth v. Reed, 1 Gray, 474, 475. And an interested judge may do formal acts necessary to bring the case before the proper tribunal. The King v. Yarpole, 4 T. R. 71. Dimes v. Grand Junction Canal, 3 H. L. Cas. 787. Jeffries v. Sewall, 2 John Adams's Works, 138, 139. Richardson v. Boston, 1 Curt. C. C. 251. Buckingham v. Davis, 9 Maryland, 329. Heydenfeldl v. Towns, 27 Alab. 430. But if a judge causes a suit in which he is interested to be brought before him, his judgment therein will be void, although he is sole judge of the court. Mayor of Hereford's Case, cited 7 Mod. 1; 2 Ld. Raym. 766; & 1 Salk. 201, 396. Richardson v. Welcome, 6 Cush. 332. Judge RoUe was of opinion that even con- sent of parties would not give jurisdiction to an interested judge, " because it is against natural reason." Smith v. Hancock, Style, 138. But it is now well settled that the objection of interest may be waived, unless it is made by constitution or statute an absolute disqualification. Regina v. Cheltenham Commissioners, 1 Q. B. 475. Kent v. Charlestown, 2 Gray, 281. Tolland v. County Commissioners, 13 Gray, 13. Sigoumey V. Sibley, 21 Pick. 106. Paddock v. Wells, 2 Barb. Ch. 335. Oakley v. Aspinwall, 3 Comst. 547. ' Bac. Ab. Statutes, A. Vin. Ab. Statutes, E. 6 pi. 15; ante, 51. Com. Dig. Par- liament, R. 27. Story's Miscellaneous Writings, 125-133. Doct. & Stud. lib. 1, cc. 2, 6. 1 Finch, c. 6. Noy's Max. 19. John Milton, in his Defence of the People of Eng- land, appealed to " that fundamental maxim in our law, by which nothing is to be counted a law, that is contrary to the law of God, or of reason." 6 Milton's Prose Works (ed. 1851), 204. Even Sir William Blackstone in his Commentaries, first published in 1765, admitted "that the rule is generally laid down that Aets of Parliament contrary to reason are void ; " adding, however, " but if the Parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it." 1 Bl. Com. 91. And so the law was stated in the editions published during his life, the eighth and last of which was published in 1778. In the posthumous editions his statement is thus modi- fied : " I know of no power in the ordinary forms of the Constitution, that is vested with authority to control it ; " and the qualifying words appear in the corrections for the press made in his own handwriting in the margin of a copy of the eighth edition, now owned by Mr. Francis E. Parker of Boston. Perhaps the American Revolution 52 NOTE TO PAXTON'S CASE. [CHAP. I. The same doctrine was repeatedly asserted by Otis,i and was a favorite in the Colo- nies before the Eevolution.'-i There are later dicta of many eminent judges to the effect forced itself more distinctly upon the notice of the learned commentator between 1778 and his death in 1780. Opposite the statements of the power of the Parliament in 1 Bl. Com. 49, 97, 161, 189, (Juincy in his copy wrote " Qu," and references to Vattel's Law of Kations, Bk. 1, c. 3, pp. 15-19, and Furneaux's Letter to Blackstone, 81, 83. And at Blackstoue's statement, " It must be owned that Mr. Locke and other theoretical Writers have held that 'there remains still inlierent in the people a supreme power to remove or alter the legislature, when they find the legislative Act contrary to the trust reposed in them ; for when such trust is abused, it is thereby forfeited, and devolves to those who gave it.' But however just this conclusion may be in theory, we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing." — 1 Bl. Com. 161, 162 — the words here printed in italics are underlined by Quincy, who adds in the margin, " Tamen qucere whether a conclusion can bfi just in theory, that will not bear adoption in practice." This very passage affords another instance of Blackstoue's careful revision of his work. In the sixth and subsequent editions the word "practically" is inserted before the word "adopt;" and for the words "argue from it " are substituted " take any legal steps for carrying it into execution." 1 Jeffries v. Setvall, 2 John Adams's Works, 139. Eights of the British Colonies, 41, 61, 62, 71, 72, 73, 109, 110. 2 In the controversy of Massachusetts with the other Confederated Colonies of New T5ngland in 1653 upon the right of the Confederation to make offensive war, all parties agreed that any acts or orders manifestly unjust or against the law of God were not binding. 10 Plym. Col. Kec. 215-223; k Hazard Hist. Coll. 270-283. In 1688 "thfe men of Massachusetts did much quote Lord Coke." Lambert MS. quoted in 2 Ban- croft's Hist. U. S. 428. And in 1765, Hutchinson, speaking of the opposition to the . Stamp Act, said, "The prevailing reason at this time is, that the Act of Parliament is against Magna Charta, and the natural rights of Englishmen, and therefore, according to Lord Coke, null and void." " Summary of the Disorders in the Massachusetts Prov- ince proceeding from an Apprehension that the Act of Parliament called the Stamp Act deprives the People of their Natural Rights," 26 Mass. Archives, 180, 183. And see Hutchinson to Jackson, September 12, 1765, quoted ante, 441 ; Arguments of Adams and Otis on the Memorial of Boston to the Governor and Council, ante, 200, 201, 205, 206 ; 2 John Adams's Works, 158, 159, note. Even the judges appointed by the Royal Governor do not seem to have been prepared to deny this principle. John Cushing, one of the associate justices, in a letter to Chief Justice Hutchinson, dated " In a hurry, Feby. 7, 1766," upon the question whether the courts Should be opened without stamps, wrote, " Its true It is said an Act of Parliament against natural Equity is void. It will be disputed whether this is such an Act. It seems to me the main Question here is whether an Act which cannot be carried into execution should stop the Course of Justice, and that the Judges are more confined than with respect to an obsolete Act. If we admit evidence unstamped ex necessitate Q. if it can be said we do wrong." 25 Mass. Archives, 55. And in 1776, after the Governor had left, and the Council and Hoiise of Representatives had assumed the government, John Adams, in answering a letter of congratulation upon his own appointment as Chief Justice of Massachusetts, from William Cushing, his senior associate, and who upon Adams's declination became Chief Justice in his stead, and afterwards a Justice of the Supreme Court of the United States, wrote, " You have my hearty concurrence in telling the jury the nullity of Acts of Parliament." 9 John Adams's Works, 390, 391, & note. In a case before the General Court of Virginia in 1772, George Mason, as reported by Thomas .Tefferson, argued that the provision of the statute of that Colony of 1682, that " all Indians which shall hereafter be sold by our nfeighboring Indians, or any other trafiqueing with ns as for slaves, are hereby adjudged, deemed and taken to be slaves," was " originally void, because contrary to natural right and justice," citing Coke and Hobart, ubi sup. The only authority cited on the other side was 1 131. Com. SECT. 11.] NOTE TO PAXTOU's CASE. 53 that a statute may he void as exceeding the just limits of legislative power; ' but it is believed there is no instance, except one case in South Carolina,^ in which an Act of the Legislature has been set aside by the courts, except for conflict with some written constitutional provision.' The reduction of the fundamental principles of government in the American States to the form of written constitutions, established by the people themselves, aud beyond the control of their representatives, necessarily obliged the judicial department, in case of a conflict between a constitutional provision and a legislative act, to obey the Con- stitution as the fundamental law and disregard the statute. This duty was recognized, aud unconstitutional acts set aside, by courts of justice, even before the adoption of the 91. As the court held that the Act of 1682 had been repealed by a subsequent statute, it became unnecessary to decide the question. 2 Hening's Sts. at Large, 491. Robin V. Hardawai/, Jefferson R. 114, 118, 123. And in the debates on the adoption of the Constitution of the United States, Patrick Henry said that the Virginia judges had opposed unconstitutional Acts of the Legislature. 4 Elliott's Deb. (2d ed.) 325. Et vid. sup. 519, note. 1 Ellsworth, in 3 Madison Deb. 1400; 5 EUiot's Debates, 462. Chase, J. in Colder V. Bull, 3 DaU. 388. Marshall, C. J. and Johuson, J. in Fletcher v. Peck, 6 Cranch, 135, 136, 143. Thompson, J. in Offden v. Saunders, 12 Wheat. 304. Story, J. in Wil- kinson v.Lfland, 2 Pet. 657, 658. Ham v. M' Claws, 1 Bay, 95. 5 Dane Ab. 248. Parker, C. J. in Foster v. Essex Bank, 16 Mass. 270, 271, and Ross's Case, 2 Pick. 169. Richardson, C. J. in Opinion of Justices, 4 N. H. 556. Prentiss, J. in Lyman v. Mower, 2 Verm. 519. Redfield, C. J. in Hatch v. Vermont Central Railroad, 25 Verm. 66. Hosmer, C. J. in Goshen v. Stonington, 4 Conn. 225. Spencer, C. J. in Bradshaw v. Rogers, 20 Johns. 106. Walworth, C. in Varick v. Smith, 5 Paige, 159, and Cochran v. Van Surlaij, 20 Wend. 373. Bronson, C. J. in Tai/lor v. Porter, 4 Hill, 144, 145. Jewett, J. in Powers v. Bergen, 2 Selden, 367. Bland, C. in Campbell's Case, 2 Bland, 231, 232. ^ In 1 792 the Superior Court of South Carolina held that an Act passed by the legis- lature of the Colony in 1712, which took away the freehold of one man and vested it in another, was "against common right, as well as against Magna Charta," and "there- fore ipso facto void." Bowman v. Middleton, 1 Bay, 252. [This case is, in truth, no exception. It is to be noticed that the decision pronounces the Act invalid as of n 12, when it was passed. At that time the authority of Parliament, and so of the statute of Magna Charta, was paramount in South Carolina. The terms of the decision are as follows : " The court (present, Gkimkb and Bay, Justices), who \sic], after a full consideration on the subject, were clearly of opinion, that the plaintiffs could claim no title under the Act in question, as it was against common right, as well as against Magna Charta, to take away the freehold of one man and vest it in another, and that, too, to the prejudice of third persons, without any compensation, or even a trial by the jury of the country, to determine the right in question. Tliat the Act was, therefore, ipso facto, void. That no length of time could give it validity, being originally founded on erroneous principles. That the parties, however, might, if they chose, rely upon a possessory right, if they could establish it." It may be added that at the time of this decision the Constitution of the State expressly affirmed the principle of " common right," which is here in question. — Ed.] 3 It was said by Chief Justice Parsons, and repeated by Chief Justice Shaw, that " the legislature may make all laws not repugnant to the Constitution." Stoiighton v.' Baker, 4 Mass. 529. Commonwealth v. Alger, 7 Cush. 101. And see Opinion of Jus- tices, 7 Mass. 525 ; Patterson, J. in Vanhorne v. JDorrance, 3 DaU. 308 ; Iredellj J. in Calder v. Bull, 3 DaU. 398, 399 ; Washington, J. in Beach v. Woodhull, Pet. C. C. 6 ; Baldwin, J. in BennfiU v. Boggs, Bald. 74; I Kent Com. 448; Verplanck, Senator, in Cochran v. Van Surlay, 20 Wend. 382 ; Bronson, J. in People v. fisher, 24 Wend. 220 ; Cowen, J. in Butler v. Palmer, 1 HiU N. Y. 329, 330 ; Gibfion, C. J. in Harvey v. 'Thomas, 10 Watts, 66, 67; Rogers, J. in Commonwealth v. M'Closhey, 2 Eawle, 374; Huston, J. in Braddee v. Brown/ield, 2 W. & S. 285. 54 WRITTEN CONSTITUTIONS IN THE UNITED STATES. [CHAP. I. Constitution of the United States.i Since the ratification of that Constitution the power of the courts to declare unconstitutional statutes void has become too well set- tled to require an accumulation of authorities.^ But as the oflice of the judiciary is to decide particular cases, and not to issue general edicts, only so much of a statute is to be declared void as is repugnant to the ConstituJion and covers the case before the court, unless the constitutional and unconstitutional provisions are so interwoven as to convince the court that the legislature would not have passed the one without the other.8 Theee will be found, in the Appendix to Part I. {infra, p. 381), the text of the Constitution of the Unite* States and its amendments, and that of Massachusetts, without its amendments. Such passages, also, are there given from all the other State constitutions which preceded that of the United States, and from the colonial charters of Con- necticut and Rhode Island, as are likely to be instructive for the pur- poses of this book. There are added, as indicating the conceptions which find expression in the more recent instruments, those parts of a typical modern constitution — that of Colorado, adopted in 1876, " the year of the Independence of the United States, the one hun- dredth " — ' which are most characteristic. The relative length of the older and the later instruments may be seen by comparing the original Constitution of Massachusetts, which fills a little over sixteen pages of Poore's Charters and Constitutions, with that of Colorado, which covers a little more than twenty-nine pages. Finally the Appendix has certain interesting parts of an American Constitution outside the United States, viz., that of Colombia. The Constitution of Massachusetts has a peculiar interest, not only as being the original Constitution of the State, and the oldest of all American instruments now in force, but also as being the first any- where submitted to a popular vote and approved by the people.* • The very few reports which have been preserved of tlie judicial decisions of that period afford two such examples. In 1786 the judges of the Superior Court of the State of Rhode Island refused to act under a statute of the General Assembly, which provided for the trial of an offence upon information before the judges without a jury, contrary to the Constitution of the State as embodied in the Eoyal Charter of Charles 2. Trevett v. Weeden, reported by James M. Varnum, Providence, 1787; 2 Chandler's Crim. Trials, 279 ^ seq. And in 1 787 the judges of the Superior Court of North Caro- lina set aside an Act of that State, which deprived a citizen of his property without trial by jury, in violation of the State Constitution of 1776. I)en v. Singleton, Martin N. C. 49. 2 Federalist, No. 78. Vanhorne v. Dorrance, 2 Ball. 308. Cooper v. Telfair, 4 DaU. 19. ikTarter^ V. Marf/son, I Cranch, 177-180. 1 Wilson's Works, 461, 462. 3 Story on Const. U. S. §§ 1570, 1608. 1 Kent Com. 449-454. 3 Bank of Hamilton v. Dudley, 2 Pet. 526. Commonwealth v. Knox, 6 Mass. 77. Wellington, petitioner, 16 Pick. 95-97. Commonwealth v. Kimball, 24 Pick. 361 . Norris T. Boston, 4 Met. 288. Fisher v. McGirr, 1 Gray, 21. Warren v. Mayor ^ Aldermen of Charlestown, 2 Gray, 98, 99. Jones v. Bobbins, 8 Gray, 338, 339. * John Adams wrote, while this instrument was in preparation : " There never was an example of such precautions as are taken by this wise and jealous people in the form- ation of their government. None was ever made so perfectly upon the principle of the people's rights and equality. It is Locke, Sidney, and Rousseau and De Mably reduced to practice, in the first instance." — 4 Works of John Adams, 216. Adams was SECT. II.] COMMONWEALTH V. CATON ET AL. 55 Omitting Connecticut and Rhode Island, which lived under their colo- nial charters until 1818 and 1842 respectively, Massachusetts was the last of the original States in actually adopting a written constitution. Ten, and, if Vermont be counted, eleven constitutions had previously gone into operation ; but none of • them had been submitted to the popular vote. The Massachusetts Legislature, in 1778, had submitted the draft of a constitution to the people, but it was rejected. So, also, in 1779, in New Hampshire, a proposed second constitution was sub- mitted to the people and rejected. The facts relating to all the States will be found carefully gathered in Jameson, Constitutional Conven- tions (4th ed. 1887), ss. 126-157, and in the Table, lb. 643. See also the notes, under the various instruments, in Poore's Charters and Constitutions. Of this reference to the popular vote, sometimes called " the consti- tuting referendum," and by the French the " plebiscite constituant," it has been said by a recent writer : * " L'organisation de I'exercice du pouvoir constituant, telle que la consacrent actuellement les legisla- tions americaines, appartient tout enti^re 4 la Nouvelle-Angleterre. EUe est basee, non seulement sur le principe que I'autorit^ constituante appartient au peuple, mais encore sur cette autre conception, ramenee dans le droit moderne par la Reforme puritaine, que cette autorite ne peut etre representee." COMMONWEALTH v. CATON et al. CoDKT OF Appeals op Virginia. 1782. [4 Call, 5.] This case came before the court ^ by adjournment from the General Court, and was as follows : John Caton, Joshua Hopkins, and John Lamb were condemned for treason, by the General Court, under the Act of Assembly concerning that offence, passed in 1776, which takes from the executive the power of granting pardon in such cases.' The House of Delegates by a member of the convention which framed the Constitution, and had a leading part in preparing it. "I had the honor," he wrote, in 1780, "to be the principal engineer." Works, ubi supra. — Ed. ' L'^tablissement et la Revision des Constitutions aux Mtats-Unis d'Am€rique, by Charles Borgeaud ; Annales de I'Ecole Libre des Sciences Politiques (1893). 2 Which at that time consisted of the judges of the High Court of Chancery ; those of the General Court ; and those of the Admiralty assembled together. Ch. Rev. 102, And the sitting members, upon the present occasion, were Edmund Pendleton. Geor(JE Wythe, and John Blair, judges of the High Court of Chancery ; Paul Caerington, Bartholomew Dandridge, Petek Lyons, and James Merger, judges of the General Court ; and Richard Gary, one of the judges of the Court of Adrairallty. ' The words of the Act are, " The Governor, or in case of his death, inability, or necessary absence, the councillor who acts as president, shall in no wise have or exer- 56 COMMONWEALTH V. CATON ET Al. [cHAP. I. resolution of the 18th of June, 178:2, granted them a pardon, and sent it to the Senate for concurrence ; which they refused. The men, how- ever, were not executed, but continued in jail under the sentence ; and, in October, 1782, the Attorney-General moved in the General Court, that execution of the judgment might be awarded. The prisoners pleaded the pardon granted by the House of Delegates. The Attorney- General denied the validity of the pardon, as the Senate had not con- curred in it : and the General Court adjourned the case, for novelty and difficulty, to the Court of Appeals. The resolution of the House of Delegates was in the following words ; "In the House of Delegates, " Tuesday the 18th of June, 1782. " Resolved that James Lamb, Joshua Hopkins, and John Caton, who stand convicted and attainted of treason by judgment of the Gen- eral Court, at their last session, and appear to be proper objects of mercy, be and are hereby declared to be pardoned for the Said treason, and exempted from all pains and penalties for the same ; provided they and each of them repair to the county of Augusta within days from this time, and continue within the said county during their natural lives respectively. Ordered that Mr. Patrick Henry do carry the said resolution to the Senate and desire their concurrence." The cause was argued in the Court of Appeals by Mr. Randolph, the Attorney-General, for the Commonwealth, and by Mr. Hardy and sev- eral other distinguished gentlemen for the prisoners. For the Commonwealth it was contended, that the pardon was void, as the Senate had not concurred. That the clause in the Constitution might be read two ways, either of which would destroy the pardon. One was, to throw the words, " or the law shall otherwise particularly direct," into a parenthesis ; which would confine the separate power of the Lower House to cases of impeachment only ; and would leave those where the assembly had taken it from tlie executive to the direction of the laws made for the purpose. The other was, to take the whole sentence as it stands, and then the construction will, according to the obvious meaning of the Constitution, be that, although the House of Delegates must originate the resolution, the Senate must in all cases concur, or it will have no effect. For it would be absurd to suppose, that the same instrument which required the whole legislature to make a law, should authorize one branch to repeal it. For the prisoners, it was contended, that the language of the Consti- tution embraced both sets of cases, as well those of impeachment, as those where the assembly should take the power of pkrdoni.ng from the executive : and, in both, that the direction was express 'that the cise a right of granting pardon to any person or persons convicted in manner afore- said, but may suspend the execution until the meeting of the General Assembly, who shall determine whether such person or persons are proper objects of mercy or not, and order accordingly." — Ch. Eeu. 40. gEOX. II.] COMMONWEAliTH V, CATON ET AL. 57 power of pardoning belonged to the House of Delegates. That the words of the Constitution, and not conjectures drawn from the sup- posed meaning of the framers of it,, should give the rule. That the Act of Assembly was contrary to the plain declaration of the Constitu- tion ; and therefore void. That the prisoners were misguided and unfortunate men ; and that the construction ought, in favor of life, to incline to the side of mercy. The Attorpey-General, in reply, insisted, that compassion for the prisoners could not enter into the case ; and that the Act of Assembly pursued the spirit of the Constitution. But that, whether it did or not, the court were not authorized to declare it void. Cur. adv. vult. Wythe, J. Among all the advantages which haye arisen to man- kind from the study of letters, and the universal diffusion of knowl- edge, there is none of more importance than the tendency they have had to produce discussions upon the respective rights of the sovereign and the subject ; and upon the powers which the different branches of government may exercise. For, by this means, tyranny has been sapped, the departments kept within their own spheres, the citizens protected, and general liberty promoted. But this beneficial result attains to higher perfection, when those who hold the purse and the sword, differing as to the powers which each may exercise, the tribu- nals, who hold neither, are called upon to declare the law impartially between them- For thus the pretensions of each party are fairly ex- amined, their respective powers ascertained, and the boundaries of authority peaceably established. Under these impressions, I approach the question which has been submitted to us ; and although it was said the other day, by one of the judges, that, imitating that great and good man Lord Hale, he would sooner quit the Bencli than determine it, I feel no alarm ; but will meet the crisis as I ought ; and, in the language of my oath of office, will decide it, according to the best of my skill and judgment. I have heard of an English Chancellor who said, and it was nobly said, that it was his duty to protect the rights of the subject against the encroachments of the Crown, and that he would do it, at every hazard. But if it was his duty to protect a solitary individual against the rapacity of the sovereign, surely, it is equally mine, to protect one branch of the legislature, and, consequently, the whole community, against the usurpations of the other ; and, whenever the proper occa- sion occurs, I shall feel the duty, and fearlessly perform it. When- ever traitors shall be fairly convicted, by the verdict of their peers, before the competent tribunal, if one branch of the legislature, with- out the concurrence of the other, shall attempt to rescue the offenders from the sentence of the law, .1 shall npt hesitate, sitting in this place, to say to the General Court, Flat justitia, ruat ccelum ; and, to the usurp- ing branch of the legislature, you attempt worse than a vain thing ; for although you cannot succeed, you set an example which may 58 COMMONWEALTH V. CATON ET AL. [CHAP. I. convulse society to its centre. Nay more, if the whole legislature, an event to be deprecated, should attempt to overleap the bounds pre- scribed to them by the people, I, in administering the public justice of the country, will meet the united powers at my seat in this tribunal ; and, pointing to the Constitution, will say to them, here is the limit of your authority, and hither shall you go, but no further. Waiving, however, longer discussion upon those subjects, and pro- ceeding to the question immediately before us, the case presented is, that three men, convicted of treason against the State, and condemned by the General Court, have pleaded a pardSn, by the House of Delegates, upon which that House insists, although the Senate refuses to concur ; and the opinion of the court is asked, whether the General Court should award execution of the judgment, contrary to the allegation of the prisoners, that the House of Delegates alone have the power to pardon them, under that article of the Constitution which says, " But he (the Governor) shall, with the advice of the Council of State, hkve the power of granting reprieves or pardons, except where the prosecution shall have been carried on by the House of Delegates, or the law shall otherwise particularly direct ; in which cases, no reprieve or pardon shall be granted, but by resolve of the House of Delegates." Two questions are made, 1. "Whether this court has jurisdiction in the case? 2. Whether the pardon is valid? The first appears, to me, to admit of no doubt ; for the Act constitut- ing this court is express, that the court shall have jurisdiction " In such cases as shall be removed before them, by adjournment from the other courts before mentioned, when questions, in their opinion new and difficult, occur." Chan. Bev. 102 : which emphatically embraces the case under consideration. The sole inquiry therefore is, whether the pardon be valid? If we consider the genius of our institutions, it is clear that the pre- tensions of the House of Delegates cannot be sustained. For, through- out the whole structure of the government, concurrence of the several branches of each department is required to give effect to its operations. Thus the Governor, with the advice of the Council of State, may grant pardons, commission officers, and embody the militia ; but he can do neither without the assent of the council : the two branches of the legislature may pass laws, but a bill passed by one of them .tas no force : and the two houses of assembly may elect a judge ; but an appoint- ment, by one of them only, would be useless. This general requisi- tion of union seems of itself to indicate that nothing was intended to be done, in any department, without it ; and, accordingly, the fourth section of the Constitution declares, that " The legislature shall be formed of two distinct branches, who, together, shall be a complete legislature;" and the eighth, " that all laws shall originate in the House of Delegates, to be approved or rejected by the Senate." Thus requiring, in conformity to the regulations throughout the whole fabric SKCT. II.] COMMONWEALTH V. OATON ET AL. 59 of government, an union of the two branches, to constitute a legisla- ture ; and an union of sentiment in the united body, to give effect to their acts. And it is not to be believed, that, when this union was so steadfastly demanded, even in the smallest cases, it was meant to be dispensed with, in one of the first magnitude, and which might involve the' vital interests of the community. But if we advert to the motive for the regulation, the necessity for concurrence will be more apparent. For it is obvious, that the contests in England between the House of Commons and the Crown, j'elative to impeachments, gave rise to it, as the king generally pardoned the offender, and frustrated the prosecution. With this in view, the power of pardoning cases of that kind was taken from the executive here, and committed to other hands, in order that the evil complained of there might be removed. But the interpretation contended for by the House of Delegates, in effect, reverses the object. Thus the object was to put a check to prerogative in one department ; the effect is to remove all check, and establish prerogative in another department. The ob- ject was to prevent disappointment, by one department, of the national will ; the effect is to enable less than a department to defeat it. . . . These arguments receive some illustration from the twentieth section of the Constitution, recognizing the power of the whole legislature, and not one branch, to abolish penalties and forfeitures : which is con- travened by the other construction ; for, if the House of Delegates can remit part of the penalty, they may the whole, as well the forfeiture of the goods, as the corporal suffering. An idea utterly inconsistent with the recognition of a power, in the whole legislature, to do it. Every view of the subject, therefore, repels the construction of the House of Delegates ; and, accordingly, the practice is said to have been against it, ever since the formation of the government : which seems to have been the understanding upon the present occasion ; for the resolution provides that it shall be sent to the Senate for concurrence. This mode of considering the subject obviates the objection made by the prisoners' counsel, relative to the constitutionality of the law concerning treason ; for, according to the interpretation just discussed, there is nothing unconstitutional in it. I am, therefore, of opinion, that the pardon pleaded by the prison- ers is not valid ; and that it ought to be so certified to the General Court. Pendleton, President. . . . The question, upon the merits, is whether by the paper stated in the record as the resolution of the House of Delegates, these three unhappy men stand pardoned of the treason of which they are attainted in the General Court, or still remain subject to the execution of the judgment which passed against them upon their conviction? If the exclusive power of the House of Delegates on this occasion was to be admitted, it would be difficult to maintain that this resolution should operate as a pardon, since those who made it, by sending it to the Senate for their con- 60 COMMONWEALTH V. CATON ET AL, [cHAP. I. currence, appear to have suspended Jits operation until the concur- rence of the Senate should be obtained, which not having happened, the force of it stands as yet suspended ; or rather the Senate, by rejecting this, and the House of Delegates not passing another, their power remains unexercised, and the attainder retains its full force. But, as I do not make this the ground of my judgment, I shall pass to the two great points into which the question has been divided, whether, if the constitution of government and the Act declaring what shall be treason are at variance on this Subject, which shall prevail and be the rule of judgment? And then, whether th'fey do contravene each other? The constitution of other governments, in Europe or elsewhere, seem to throw little light upon this question, since we have a written record of that which the citizens of this State have adopted as their social compact ; and beyond which we need not extend our researches. It has been very properly said, on all sides, that this Act, declaring the rights of the citizens, and forming their government, divided it into three great branches, the legislative, executive, and judiciary, assign- ing to each its proper powers, and directing that each shall be kept separate and distinct, must be considered as a rule obligatory upon every department, not to be departed from on any occasion. But how far this court, in whom the judiciary powers may in some sort be said to be concentrated, shall have power to declare the nullity of a law passed in its forms by the legislative power, without exercising the power of that branch, contrary to the plain terms of that constitution, is indeed a deep, important, and I will add, a tremeridous question, the decision of which might involve consequences to which gentlemen may not have extended their ideas. I am happy in being of opinion there is no occasion to consider it upon this occasion ; and still more happy jn the hope that the wisdom and prudence of the legislature will pre- vent the disagreeable necessity of ever deciding it, by suggesting the propriety of making the principles of the Constitution the great rule to direct the spirit of their laws. It was argued by the counsel for the prisoners, that the interpretar t'ion, now to be made, ought, in favor of life, to incline to the side of mercy, and that compassion for the misguided and unfortunate ought to have some influence on our decision. Mercy — divine attribute ! Often necessary to the best, sometimes due to the worst, and from the infirmities of our nature always to be regarded, when circumstances will admit of it. But how, in public concerns, this is to be accomplished with just attention to the general welfare, has, in every age, been a desideratum with statesmen and legis- la,tors. For, in human associations, other considerations, as well as the dictates of mercy, must be attended to. Compassion for the indi- vidual must frequently yield to the safety of the community. Society proceeds upon that principle. Men surrender part of theur natural rights to insure protection for the residue against domestic violence, and hostilities from abroad ; which can only be effected by the due SECT. II.J COMMONWEALTH V. CATON ET AL. 61 execution of wholesome laws calculated to maintain the rights of private citizens, and the integrity of the State. But how would this be pro- moted by letting loose, notorious offenders to burn, to rob, and to mur- der, or to aid a foreign foe in his unjust attempts upon the liberties of the country? Mercy, in such cases, to one, would be cruelty to the rest. Aware of this, the makers of the Constitution, considering that although, in representative governments, the laws should be mild, they ought to be rigidly executed ; and that, although a power to par- don, which had often been abused in England, should exist somewhere, it ought never to be exercised without proper cause, framed the clause now under consideration ; which provides that the Governor, or Chief Magistrate, "shall not, under any pretence, exercise any power or prerogative by virtue of any law, statute, or custom of England ; but he shall, with the advice of the Council of State, have the power of granting reprieves and pardons : " not in all cases indiscriminately, but in such only as were least liable to abuse ; the rest were confided to agents less exposed to temptation. Thus the power was, in general, committed to the executive : but as to cases concerning the conduct of public officers, and those which policy might suggest to the legislature as proper to be taken from the Chief Magistrate and his council, it was thought a safer depository, be- yond the reach of the various passioiis and motives which might influence a few individuals, would be found in the General Assembly ; and therefore the clause excepts cases of impeachment, and those which the law might otherwise provide for. In these, the power of pardoning is reserved to the representatives of the people : but whether to one or both Houses is the important question. A question which should be decided according to the spirit, and not by the words of the Constitution. The language of the clause is inaccurate, and admits of both the constructions mentioned by the Attorney-General, that is to say, 1 . By throwing the words, " or the law shall otherwise particularly direct," into a parenthesis, to confine the power of pardoning, by resolution of the House of Delegates alone, to cases of impeachment only ;■ and to leave those which the General Assembly might take from the executive, to the direction of the laws made for the purpose. 2. By taking the clause altogetherj to make the representatives of the people the source of mercy, provided the consent of the Senate was obtained. Either view of the subject satisfies the present inquiry ; but I prefer the first, as most congenial to the spirit, and not inconsistent with the letter, of the Constitution. The treason law appears to have been framed upon this idea ; and, in passing it, the legislature have, in my opinion, pursued, and not violated, the Constitution. Indeed, the House of Delegates appear to have understood it so themselves, as they sent the resolution to the 62 COMMONWEALTH V. CATON ET AL. [CHAP. I. Senate for their concurrence, which not having been obtained, the resolution is of no force, and the pardon falls to the ground. Chancellor Blair and the rest of the judges were of opinion, that the court had power to declare any resolution or Act of the Legislature, or of either branch of it, to be unconstitutional and void ; and that the resolution of the House of Delegates, in this case, was inoperative, as the Senate had not concurred in it. That this would be the consequence clearly if the words, "or the law shall otherwise par- ticularly direct," were read in a parenthesis ; for then the power of pardoning by the House of Delegates would be expressly confined to cases of impeachment by that House ; and, if read without the paren- thesis, then the only difference would(be, that the assent of the two Houses would be necessary ; for it wcJttld be absurd to suppose that it was intended by the Constitution that the Act of the whole Legislature should be repealed by the resolution of one branch of it, against the consent of the other. The certificate to the General Court was as follows : — " The court proceeded, pursuant to an order of the court of Thurs- day last, to render their judgment on the adjourned question, from the General Court, in the case of John Caton, Joshua Hopkins, and James Lamb ; whereupon it is ordered to be certified, to the said General Court, as the opinion of this court, that the pardon, by resolution of the House of Delegates, severally pleaded and produced in the said court, by the said John Caton, Joshua Hopkins, and James Lamb, as by the record of their case appears, is invalid." N. B. — It is said, that this was the first case in the United States, where the question relative to the nullity of an unconstitutional' law was ever discussed before a judicial tribunal : and the firmness of the judges (particularly of Mr. Wythe) was highly honorable to them, and will, always be applauded, as having incidentally fixed a precedent, whereon a general practice, which the people of this country think essential to their rights and liberty, has been established.' 1 For an account of the earliest constitutional cases in the States see a valuable article in 19 Am. Law Rev. 175 (1885), by William M. Meigs, Esq., of the Philadelphia Bar. The earliest judicial decision of the point that judges may disregard legislative Acts at variance with the Constitution, appears to have been given in Holmes v. Walton, in New Jersey in 1780, — an unreported case, cited in 4 Halstead, 444. The exact date was determined by Professor Scott, of Rutgers College, a few years ago ; see 2 Am. Hist. Assoc. Papers, 45 (1886). As to a dubious unreported Virginia case of 1778, see 19 Am. Law Rev. 178. Of reported cases the earliest are given in this book. In Coxe's Jud. Power and Unconst. Legis. 219-271, there is a valuable consideration of the early precedents in the States. — E». SECT. II.] EUTGEES V. -WADDINGTON. 63 RUTGERS V. WADDINGTON.i Match's Court, City of New York. August 27, 1784. This was an action of trespass brought against the defendant, upon an Act of the Lcjgislature of this State, passed the seventeenth of March, one thousand seven hundred and eighty-three, for the occupa- tion of a brew-house and malt-house of the plaintiff, from the thirteenth day of August, one thousand seven hundred and seventy-eight, until the time of passing the Act above mentioned. The cause came on to be argued upon demurrer, before the Honorable James Duane, Esq., Mayor, Richard Varrick, Esq., Recorder, Benjamin Blagge, Wil- liam W. Gilbert, William Neilson, Thomas Randal, and Thomas IvBRS, Esquires, aldermen, on Tuesday, the twenty-ninth day of June past. The counsel for the plaintiff were Mr. Lawrence, assisted by the Attorney- General, Mr. Wilcox, and Mr. Troupe. Those for the de- fendant were Mr. Hamilton, assisted by Mr. jB. Livingston, and Mr. Leivis. Mr. Lawrence opened the pleadings and arguments on the part of the plaintiff, and was followed by Mr. Wilcox. Mr. Livingston, Mr. Lewis, and Mr. Hamilton, were next successively heard, in behalf of the defendant, and were replied to by Mr. Lawrence, Mr. Troupe, and the Attorney- General. The arguments on both sides were elaborate, and the authorities numerous. The court took time to advise, until Tuesday, the twenty-seventh day of August, and then the Honorable the Mayor proceeded to de- liver the judgment of the court, as follows : — In the case of Elizabeth Rutgers versus Joshua Waddington, which we gave notice should be determined this day, the court now proceed to judgment. It is represented to be a controversy of high impor- tance ; from the value of the property, which in this and other actions depends on the same principles ; from involving in it questions which must affect the national character : — questions whose decision will record the spirit of our courts to posterity ! Questions which embrace the whole law of nations ! It were to be wished, that a cause of this magnitude was not to receive its first impression from a court of such a limited jurisdiction, as that in which we preside ; — from magistrates actively engaged in establishing the police of a disordered city, and in other duties, which cut them off from those studious researches which great and intricate questions require. If we err in our opinion, it will be a consolation, that it has been intimated, "to be probable, whatever may be the de- termination that it will not end here." ' Pamphlet, New York. Printed by Samuel Loudon. 1784. Edited, with an Historical Introduction, by Henry B. Dawaon. Morrisania, N. Y. 1866. 64 RUTGERS V. WADblNGTON. [CHAP. I. The counsel on both sides, who have managed this cause, and by whose diligence and abilities, so much learning, on an uncommon sub- ject, hath been drawn into view, have spared us much labor. We cannot but express the pleasure which we have received, in seeing young gentlemen, just called to the Bar, from the active and honorable scenes of a military life, already so distinguished as public speakers, so much improved in an arduous science. That in a contest (which we are told) is not considered without tem- porary prepossession, we may express our sentiments with more deliber- ation and correctness ; and that nothing*to be offered by us, may be misunderstood or misapplied, we have taken the trouble to preserve our remarks by committing them to paper. The action is grounded on a statute of this State, entitled, " an Act for granting a more effectual relief in cases of certain trespasses," passed the seventeenth day of March, one thousand seven hundred and eighty-three ; and the declaration charges, 1st, the substance of the Act, viz., " That it shall and may be lawful for any person or persons, who are, or were inhabitants of this State, and who, by reason of the invasion of the enemy, left his, hier, or their place or places of abode, who have not voluntarily put themselves respectively into the power of the enemy, since they respectively left their places of abode, his, her, or their heirs, executors, or administrators, to bring an action of trespass against any person or persons, who may have occupied, injured, or destroyed his, her, or their estate, either real or personal, within the power of the enemy." 2. Complains that the defendant, on the thirtieth day of August, 1778, with force and arms, &c., occupied one brew-house, and one malt-house of the plaintiff, situate in the east ward of the city of New York, and within the jurisdiction of this court, and his occupation thereof so continued, from the said 13th day of August, in the year 1778, until the 17th day of March, in the year 1783. 3. And also, that he the said Joshua, with force and arms, &c., afterwards, to wit, the same 13th day of August, 1778, and at divers days and times, between the said 13th day of August, 1778, and the 17th day of March, 1783, occupied one other brew-house, and one other malt-house, of her the said Elizabeth, within the city and ward, and within the jurisdiction, &c., et alia enormia, to the great damage, &c., against the peace, .&c. And the said Elizabeth avers, — 1st. That there was open war between the King of Great Britain, his vassals, &c., and the people of the State of New York aforesaid, on the 10th day of September, 1776, to wit, at the east ward, &c., and within, &c., and that the said open war continued from the said day until the time of passing the Act aforesaid. 2d. That the King of Great Britain, his vassals, &c., and the enemy mentioned and intended in the said Act are one and the same and not different. 3d. That she was an inhabitant of the State of New York, and SECT. 11.] RUTGERS V. WADDINGTON. 65 that the place of her abode was the cily of New York, in the State of New York, on the tenth day of September, in the year last aforesaid, to wit, in the east ward, &c., and within the jurisdiction, &c. 4th. That by reason of the invasion of the enemy, she the said Eliza- beth afterwards, to wit, the said tenth day of September, in the year aforesaid, left her said place of abode, to wit, in the ward aforesaid and within, &c. 5th. That she did not, at any time after she left her said place of abode, as aforesaid, voluntarily put herself within the power of the enemy aforesaid. 6th. That the brew-house and malt-house aforesaid were parcel of the real estate of the said Elizabeth, and at the days and times they were occupied by the said Joshua were in the power of the enemy, to wit, at the east ward, &c., and within, &c. Wherefore the said Elizabeth saith she is made worse, and hath sustained damage to eight tliousand pounds et hide, &c. The defendant to this charge, as to the force and arms and whatso-. ever is against the peace, and as to the whole of the trespass aforesaid, except as to the occupying the said brew-house and malt-house of the said Elizabeth, on the twenty-eighth day of September, 1778, and con- tinuing the occupation thereof until the seventeenth day of March, 1783, he pleads not guilty and takes issue. And as to the occupying the brew-house and malt-house, on the aforesaid twenty-eighth day of September, 1778, and continuing the occupation thereof until the last day of April, 1780, inclusively, the said defendant saith, that the said Elizabeth actionem non, quia dicit, that long before the said twenty-seventh day of September, 1778, to wit, on the fourth day of July, 1776, in (substance) the Declaration of Independence by Congress \^sic], who did then and there declare, that the United Colonies were, and of right ought to be free and indepen- dent States ; that they were absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain was, and ought to be totally dissolved, &c. That the said declaration was on the ninth of July, in the year aforesaid, ap- proved of by the Convention of the State of New York : and after- wards, on the 8th day of May, 1777, the same was recognized and confirmed by the legislature of this State. That upon the 10th day of September, 1776, and from that time until after the last day of April, 1783, there being open war between, &c., the army of the said king, on the 10th day of September, 1776, conquered the city of New York, and continued in uninterrupted possession thereof, from that time until and after the last day of April, 1778 ; and the said army so being in possession, the said brew- house and malt-house, by virtue of authority from the commander-in- chief of the said army, on the 10th day of June, 1778, was taken pos- session of by the commissary-general of the said army, for the use of the said army — as by the laws, &c., of nations in time of war he lawfully VOL. I — 5 66 KUTGERS V. WADDISGTON. [cHAP. I. might do — and that the said commissary on, &c., at, &c., gave his license and permission to Benjamin Waddington and Evelyn Pierre pont, residing in the said city as British merchants, under the protec- tion of the said British army, and having been from their birth and still being subjects of the King of Great Britain, to enter into, use, and occupy the said malt-house and Brew-house, from the said^ 28th day of September, 1778, inclusively, to the last day of April, 1780, inclu- sively : by virtue whereof they entered and occupied the premises, from the first of the two last-mentioned days to the last inclusively ; and the defendant as their servant and at their command, from time to time, and atdivers times from' the first to the last of those days, entered into and occupied the said brew-house and malt-house, for the benefit of the said Benjamin and Evelyn : Quae est eadem, &c. whereof the plaintiff complains, in the first count of her declaration. And as to the occupying the said brew-house and^ malt-house, from the last day of April, 1780, to the 17th of March, 1783, he pleads over again the Declaration of Independence of these States ; the approba- tion thereof by the Constitution of the State ; and the recognition and confirmation thereof by the Convention; the conquest of the city of New York by the British ; and that the brew-house and mait-house being out of the possession of the plaintiff, the commander-in-chief of the said army, on the last day of April, 1780, gave his license and permission (as by the laws of nations he might lawfully do) to the said Benjamin: and Evelyn (describing them as in the other plea) to enter into and occupy the said brew-house and malt-house, from the last day of April, 1780, until the said license and permission should be revoked ; paying therefore to such person as the commander-in-chief should authorize to receive the same, at the rate of one hundred and fifty? pounds for each year, in quarterly payments, &c. He then avers that they accordingly entered and occupied the said brew-house and malt-house, on the Ist day of May, 1780, and contin- ued the occupation thereof until the 17th day of March, 1783, till when the said license remained in force ; and then avers as before, that he as their servant, and at their command, from time to time and at divers times, between the two last-mentionedi days, did' enter and occupy the said brew-house and malt-house, &c., quoB est eadem.', &c., concluding with an averment, that the said Benjamin and Evelyn did pay the said one hundred and fifty pounds a year to John Smith, ap- pointed by the said commander-in-chief to receive the same. For further plea to the whole of the ti-espass, according to the form of the statute, the defendant saith, that the plaintiff actionemnon, &c. Because he saith, that after the passing the Act of the Legislature of this State, in the declaration mentioned^ to wit, on the 3d day of September, 1783, at, &c., a certain definitive treaty of peace, between the King of Great Britain and his subjects, and the United States and the subjects and citizens thereof and of eaeh of them, was entered' into, made and concluded by plenipotentiaries on the part of the said SECT. II.] KUTGERS V. WADDINGTON. 67, king and States respectively (naming theni) in virtue of full powers, &c., which definitive treaty, on the 14th day of January, 1784, at An- napolis, &c., by the United States of America in Congress, then and there assembled in due form, was ratified and confirmed ; and after- wards on the same day, announced and published by proclamation under the seal of the United States, to all the good citizens of the said United States ; enjoining all magistracies, legislatures, &c. to carry into effect the said definitive treaty, &c.,prout, &o. In virtue of which said definitive treaty, all right, claim, &c., which either of the said contracting parties, and the subjects and citizens of either of them might otherwise have had to any compensation, recompense, retribu- tion, or indemnity whatsoever, for or by reason of any injury, or dam- age, whether to the public or individuals, which either of the said contracting parties, and the subjects and citizens of either miglit have done or caused to be done to the other, in consequence of, or in any- wise relating to the war betw-een them, from the time of the commence- ment to the determination- thereof, were mutually and reciprocally, virtually and effectually, relinquished, renounced, and released to each other, &c. — ■ And he avers, as in his other plea, that from the time of his birth, and at all times since, he hath been and still is a subject of the King of Great Britain : and between the times in his plea men- tioned, as a subject of the said king, resided in the city of New York, using the art, trade, &c., of a merchant j under the protection of the army of the said king, then waging war against the said State ; et hoc paratus est veriflcari : wherefore he prays judgment whether the said plaintiff, her action against him ought to have or maintain ; with this, that the said Joshua will verify that the whole of the trespass by him supposed to be committed, is for certain acts, &c., by him supposed to have been done while he was residing as a subject of the- said king, and under the protection of the ai-my of the said king, and in relation to the war aforesaid. The plaintiff replies as to the plea of the defendant, as to the resi- due of the trespass, by him done as aforesaid; by him above pleaded in bar, that she by reason thereof ought not to be barred from her said action ; because she says, that by the Act, &c., for granting a more effectual relief in cases of certain trespasses, in her declaration in part recited, it is also among other things enacted, that no defendant or defendants shall be admitted to plead in justification any military order, or command- whatsoever of the enemy, for such occupancy : and avers, that the said commissary-general and commander-in-chief were, at the time of giving the permission or license, subjects to the said King of Great Britain, the enemy mentioned and intended by the Act aforesaid, and in the military service of the said king : wherefore seeing that the said Joshua hath acknowledged the trespass by him done as aforesaid, the said Elizabeth prays judgment and her dam- ages, &c. 68 RUTGERS V. WADDINGTON. [CHAP. L And as to the further plea of the said Joshua, to the whole of the trespass aforesaid by him pleaded in bar, the plaintiff demurs. And the defendant on his part demurs to the plea of the plaintiff last above pleaded. The pleadings close with joinders in demurrer, in the usual forms. From these pleadings, and the arguments which they have produced, three questions are presented for our consideration : — 1st. Whether the plamtiff s case is within the letter and intent of the statute on which this action is grounded? IJdjy. Whether the laws of nations give the captors, and defendant under them, rights which control the operation of the statute and bar the present suit ? Illdly. Whether there is such an amnesty included or implied in the definitive treaty of peace, as virtually or effectually relinquishes or re- leases the plaintiff's demand under the said statute? . . . [In a long and learned opinion, the court answers the first question in the aflBirm- ative, and the second and third in the negative. As regards, how- ever, the act of the commander-in-chief in giving possession from April, 1780, to March, 1783, unlike the previous act of the commis- sary-general, it was held that it had relation to the war and was according to the laws of war, and was covered by the amnesty im- plied in making the treaty ; and tb^t as regards this period the plain- tiff could not recover. The course of reasoning, so far as the subject now in hand is concerned, is shown by the passages which follow.] We must acknowledge there appears to us very great force in the observation arising from the federal compact. By this compact these States are bound together as one great independent nation ; and with respect to their common and national affairs, exercise a joint sover- eignty, whose will can only be manifested by the acts of their delegates in Congress assembled. As a nation they must be governed by one common law of nations ; for on any other principles how can they act with regard to foreign powers ; and how shall foreign powers act to- wards them? It seems evident that abroad they can only be known in their federal capacity. What then must be the effect? What the confusion ? if each separate State should arrogate to itself a right of changing at pleasure those laws, which are received as a rule of con- duct, by the common consent of the greatest part of the civilized world. We shall deduce only one inference from what hath been here ob- served — that to abrogate or alter any one of the known laws or usages of nations, by the authority of a single State, must be contrary to the very nature of the confederacy, and the evident intention of the articles, by which it is established, as well as dangerous to the Union itself. ... It has been further objected, that Congress could form no treaty of peace to reach our internal police. SECT. II.] RUTGERS V. WADDINGTON. 69 There is a great distinction between the authority of the treaty, and its operation and effects. The first we hold to be sacred and shall never, as far as we have power, suffer it to be violated or questioned. It is the great charter of America — it has formally and forever released us from foreign domination — it has confirmed our sovereignty and independeuce ; and ascertained our extensive limits. Our Union, as has been properly observed, is known and legalized in our Constitution, and adopted as a fundamental law in the first Act of our Legislature. The federal compact hath vested Congress with full and exclusive powers to make peace and war. This treaty they have made and ratified, and rendered its obligation perpetual. And we are clearly of opinion, that no State in this Union can alter or abridge, in a single point, the federal articles or the treaty. But the operation and eff'ects of the treaty, within our own State, are fit subjects of inquiry and decision : according to its spirit and true meaning we must determine our judgment ; nor shall any man, by any act of ours, be deprived of the benefits which, on a fair and reasonable construction, he ought to derive from it. On this occasion, we say with the sage, i'VafjMsiiiiarMafcasiitm. . . . The counsel for the defendant, by stating a number of pointed cases, showed clearly, from the nature of things, that the statute must admit of exceptions. Mr. Attorney-General, one of the counsel for the plaintiff, who argued the cause very ably, admitted that many cases may be out of the statute, though the plaintiff's is not of the number. Thus, then, it seems to be agreed, on both sides, that the provision in the statute, being general, cannot extend to all cases, and must there- fore receive a reasonable interpretation according to the intention ; and not according to the latitude of expression of the legislature : it fol- lows as a necessary consequence, that the interpretation is the pro- vince of the court, and, however difficult the task, that we are bound to perform it. The authorities which have been cited on the part of the defendant, not only establish this general principle, but bring forward a number of judicial decisions, wherein the courts of justice have exercised that power. On the other side, the uncontrollable power of the legislature, and the sanctity of its laws, have been earnestly pressed by the coun- sel for the plaintiff; and a great number of authorities have been quoted to establish an opinion, that the courts of justice in no case ought to exercise a discretion in the construction of a statute. However contradictory these authorities may appear to superficial observers, they are not only capable of being reconciled, but the result of the whole will appear to be wise, suited to human imperfection and easily explained. , The supremacy of the legislature need not be called into question ; 70 RUTGERS V. WADDINGTON. [CHAP. I. if they think fit positively to enact a law, .th«re is no power which can control them. When the main object of such a law is clearly expressed, and the intention manifest, the judges are not at liberty, although it appears to them to be unreasonable, to reject it ; for this were to set the judicial above the ilegislative., which would be subversive of all government. But when a law is expressed in general words, and some collateral matter, which happens to arise from those general words, is unreason- able, there the judges are in decency to conclude, that the conse- quences were not foreseen by the legislature; and therefore they are at liberty to expound the statute by equity, and only quoad hoc to disregard it. Wlien the judical make these distinctions, they do not control the legislat^re ; they endeavor to give their intention its proper effect. This is the substance of the authorities, on a comprehensive view of the subject ; this is the language of Blackstone in his celebrated commentaries, and this is the practice of the courts of justice, from which we have copied our jurisprudence, as well as the models of our own internal judicatories. To apply these general remarks to the par- ticular case under our consideration. — The American prisoners of war, in th« power of the enemy, were quartered in the houses of the exiles : they in fact occupied those houses by a military order or com- mand, and are included within the generaLdescription of the statute, which, according to the letter, extends to all persons without any ex- ception, who have so occupied or injured such houses. But can we force ourselves to believe, that the legislature could have been so unjust and oppressive as to add to the sufferings of -the patriot soldier, consigned, after fighting the battles of his country, .to a long captivity, by making him pay for fetters which he had worn in the service of his country, or for want of means, to undergo a second loss of liberty? That the legislative, judicial, and executive powers of government should be independent of each other, is essential to liberty. This principle entered deeply into our excellent Constitution, and was one of the inducements to the establishment of the Council of Revision, that the judicial and executive of wihoiji it is composed, might have the means of guarding their respective rights, against the encroach- ments of the legislature, whether by design, "or by haste or unad- vjisedness." For this and other purposes, allibills, which have passed the Senate and ^Assembly, before they become laws, are to be presented to the council for their revisal and considei-ation ; that if it should appear improper to them that any bill should become a law, it may be returned with their objections for further consideration, and be.come subject to the approbation of two-thirds of the members of each House, before it can be a law. From this passage of our Constitution, Mr. Attorney seems to regard this deteiminaition of the Council of iBevision on the law in question, SECT. II.] EUTGEES V. WADDINGTON. 71 in the light of a judicial decision, by which this court ought to be guided, ior the sake of uniformity in the dispensation of justice. But surely the respect, which we owe to this honorable council, ought not to carry us such lengths ; it is not to be supposed, that their assent or objection to a bill canihave the force of an adjudication ; for what in such a case would be the fate' of a law which prevailed ag'ainst their sentiments ? Besides, in the hurry of a session, and especially_^a^rcm/e bello, they have neither leisure nor means to weigh the extent and con- sequences of a law whose provisions are general, at least not with that accuracy and solemnity which must be necessary to render their rea- sons incontrovertible, and their opinions absolute. The institution of this council is sufficiently useful and salutary, without ascribing to their proceedings, effects so extraordinary ; nor is it probable, that the high judicial powers themselves, would in the seat of judgment always be precluded, even by their own opinion given in the Council of iRevision ; for instance, if they had consented to a bill, general in its provision, and in the administration of justice they discovered that, according to the letter, it comprehended cases which rendered its operation unseasonable, mischievous, and contrary to the intention of the legislature, would they not give relief? Surely it cannot be questioned. Upon the whole, this being a statute is obligatory, and being gene- ral in its provisions, collateral matter arises out of the general words, which happens to be unseasonable. The court is therefore bound to conclude, that such a consequence was not foreseen by the legislature, to explain it by equity, and to disregard it in that point only, where it would operate thus unseasonably. The questions then, whether this statute hath in any respect revoked the law of nations, or is repealed by the definitive treaty of peace, or foreign to the circumstances of the case: neither will happen, nor ought to be apprehended. There is not a tittle in the treaty to which the statute is repugnant. The amnesty is constructive, and made out by reasoning from the law of nations to the treaty. The repeal of the law of nations, or any interference with it, could not have been in contemplation, in out opinion, when the legisla- ture passed this statute ; and we think ourselves bound to exempt that law from its operation : iiirst, because there is no mention of the law of nations, nor the most remote allusion to it, throughout the whole statute ; secondly, because it is a subject of the highest national concern and of too much moment 'to have been intended to be struck at in silence ; and to be controlled implicatively under the generality of the .terms of the provision ; thirdly, because the provision itself is so indefinite, that without any control it would operate in other cases unreasonably, to the oppression of the innocent, and contrary to humanity ; when it is a known maxim " that a statute ought to be so construed,, that no man who is innocent be punished or. endamaged,;" iourthly, because the statute 72 ETJTGEKS V. WADDINGTON. [CHAP. I. under our consideration doth not contain even the common non obstante clause, though it is so frequent in our statute book, — ' ' and it is an estab- lished maxim, where two laws are seemingly repugnant, and there be no 'clause of non obstante in the latter, they shall, if possible, have such con- struction, that the latter may not repeal the former by Implication ; " fifthly, because although it is a true rule that posteriores leges prioribus derogant, to use the language of Sir Thomas Fowls in the Duchess of Hamilton's Case, — at the same time it must be remembered, that repeals by implication are disfavored by law, and never allowed of but where the inconsistency and repug«ancy are plain, glaring, and unavoidable : for these repeals carry along with them a tacit reflection upon the legislature, that they should ignorantly, and without know- ing it, make one Act repugnant to and inconsistent with another ; and such repeals have ever been interpreted so as to repeal as little of the precedent law as possible. The plaintiff's counsel, who themselves argued in favor of this last proposition, adduced several authorities to support it. Whoever then is clearly exempted from the operation of this statute by the law of nations, this court must take it for granted, could never have been intended to be comprehended within it by the legisla- ture. . . . We have gone further perhaps into many important subjects, which have been brought into view by this controversy, than was strictly necessary ; but it is time that the law of nations and the nature and effects of treaties should be understood : and in the infancy of our republic, every proper opportunity should be embraced to inculcate a sense of national obligation, and a reverence for institutions, on which the tranquillity of mankind, considered as members of different States and communities, so essentially depends. Besides the maxim interest reipuiliccBut sit finis litium, never applied more forcibly than it now doth to us in our present circumstances ; and it is hoped by being thus explicit, we may ease the minds of a multi- tude of suitors whose causes are depending here under this statute — at all events we shall relieve this court from an unusual weight of judicial examination, which a want of time renders incompatible with our other public and indispensable duties. Upon the whole, it is the opinion of this court, that the plea of the defendant as to the occupancy of the plaintiff's brew-house and malt- house, between the 28th day of September, 1778, and the last day of April, 1780 ; and the last plea of the defendant as to the whole of the trespass, charged in the plaintiff's declaration, are insufficient in the law ; and that only the plea of the defendant in justification of the occupancy between the last day of April, 1780, and the 17th day of March, 1783, is good and sufficient in the law. Let judgment be entered oAXordingly.^ 1 See Mr. Dawson's introdnction for an account of the excitement to which this opinion gave rise. A meeting was called, and an address " To the People of the SKCT. n.] TKEVETT V. WEEDEN. 73 TEEVETT V. WEEDEN.* Superior Court of Judicature of Rhode Island. 1786. Upon the last Monday of September, in the eleventh year of the Independence of the United States, in the city of Newport, and State of Rhode Island, &c., was heard, before the Superior Court of Judicature, Court of Assize, and General Jail-Delivery, a certain in- formation, John Trevett against John Weeden, for refusing to receive the paper bills of this State, in payment for meat sold in market, equiv- alent to silver or gold ; and upon the day following, the court delivered the unanimous opinion of the judges, that the information was not cognizable before them. [Coxe (Jud. Power and Unconst. Legis. 245) adds this: "The following constitutes the whole of the brief extant report of what was said by them : " ' The court adjourned to next morning, upon opening of which. Judge Howell, in a firm, sen- States" was issued Nov. 4, 1784, bitterly complaining of the decision. The writers say : " From what has been said we think that no one can doubt of the meaning of the law. It remains to inquire whether a court of judicature can consistently, with our Constitution and laws, adjudge contrary to the plain and obvious meaning of a stat- ute. That the Mayor's Courts have done so in this case we think is manifest from the aforegoing remarks. That there should be a power vested in courts of judicature, whereby they might control the supreme legislative power, we think is absurd in itself. Such power in courts would be destructive of liberty, and remove all security of property. The design of courts of justice in our gQvernment from the very nature of their institution, is to declare laws, not to alter them. Whenever they depart from this design of their institution, they confoiind legislative and judicial powers. The laws govern where a government is free ; and every citizen knows what remedy the laws give him for every injury. But this cannot be the case where courts, if they deem a law to be unreasonable, may set it aside. Here, however plainly the law may be in his favor, he cannot be certain of redress until he has the opinion of the court." This address was signed by Melancton Smith, Thomas Tucker, Peter Eiker, Daniel Shaw, Jonar than Lawrence, Adam Gilchrist, Jr., Anthony Rutgers, John Wiley, Peter T. Cur- tenius. The House of Assembly of the State at about the same time, by a vote of 25 to 1 .5, adopted a preamble and the following resolution : " ' Resolved, that the judgment aforesaid is, in its tendency, subversive" of all law and good order, and leads directly to anarchy and confusion ; because if a court instituted for the benefit and government of a corporation may take upon them to dispense with and act in direct violation of a plain and known law of the State, all other courts, either superior or inferior, may do the like ; and therewith will end all our dear-bought rights and privileges, and legislatures become useless.' It is said," continues the editor, " that Mr. Waddington, alarmed at these manifestations, and at the threatened appeal and writ of error, soon after compromised with Mrs. Rutgers ; and the entire subject became matter of his- tory, and, soon after, was entirely forgotten by the great body of those who were most interested in the great political principles which have been involved — even those who had been most active in condemning the action of the court, appear to have thought no more of the subject." For comments on this case see Coxe, Jud. Power & Unconst. Legis. 223. See also the Symshury Case, Kirby (Conn.), 444, 447 (1785), and lb. 452 (1784). — Ed. 1 Pamphlet, by James M. Varnum. Providence : John Carter. 1787. An account of the case is given in 2 Chandler's Crim. Tr. 269. — Ed. 2 Providence " Gazette," Oct. 7, 1786 : compare American Museum, vol. 5, p. 36. 7i TBEVETT V. WEEDEN. ;[CHAP. I. Bible, and judicious speech, assigned the reasons which induced him to be of the opinion that the information was not cognizable by the court — declared himself independent as a jud^e — the penal law to be repugnant ^ and unconstitutiond — and therefore gave it as his opinion that the court could not take cognizance of the information ! Judge Devol was of the same opinion. Judge Tillinghast took notice of the striking repugnancy of' the expressions of the act — Without trial by jury, according to the laws of the land — and on that ground gave his judgment the same way. Jndge Hazard voted against taking cognizance. The Chief Justice declared the judgment of the court without giving his own -opinion.' "] That this important decision may be fully comprehended, it will be necessary to recur to the Acts of the General Assembly, which superin- duced the trial. At the last May session, an Act was made for emitting the sum of one hundred thousand pounds, lawful mowey, in bills, upon land security, which should pass in all kinds Of business and pay- ments of former contracts, upon par with silver and gold, estimating an ounce of coined silver at Six shillings and eightpence. Another Act was passed in the June following, subjecting every person who should re- fuse the bills in payment for articles offered for sale, or .should make a ■distinction in value between them and silver and gold, or who should in any manner attempt to depreciate them, to a penalty of one hundred pounds, lawful money ; one moiety to the State, and the other moiety to the informer ; to be recovered before either of the Courts of General Sessions of the Peace, or the Superior Cou.rt, of Judicature, &c. Experience soon evinced the inadequacy 'Of this measure to the objects of the administration: and at a session of the General Assem- bly, specially convened by his Excellency the Governor, upon the third Monday of the following August, another Act was passed, in addition to and amendment of that last mentioned, wherein it is provided, that the fine of one hundred pounds be varied ; and that for the future the fine should not be less than six, nor exceed thirty pounds, for the first offence. The mode of prosecution and trial was also changed, agree- ably to the following clauses: " That the complainant shall apply to either of the judges of the Superior Court of Judicature, &c., within this State, or to either of the judges of the Inferior Court of Common Pleas within the county where such offence shall be committed, and Jodge his certain information, which shall be issued by the judge in the following form," &c. It is then provided, that the person complained of come before a court to be specially convened by the judge, in tliree days; "that the said court, when so convened, shall proceed to the trial of said offender, and they are hereby authorized so to doi, without any jury, by a majority of the judges present, according to the laws of the land, and to make adjudication and determination, and that three members be sufficient to constitute a court, and that the judgment of 1 " Unjust," in the Museum's text. SECT. II.] TREVETT V. WEEDEN. '75 the court, if agaiust the offender so complained of, be forthwith complied with, or that he stand committed to the county jail, where the said court may be sitting, till sentence be performed, and that the said judgment of said court shall be final and conclusive, and from which there shall be no appeal ; and in said process uo essoin, protec- tion, privilege, or iBJunction -shall be in anywise prayed, granted, or allowed." In consequence of a supposed violation of this Act, John Trevett exhibited his complaint to the Hon. Paul Mumford, Esq., Chief Justice of the Superior Court, at his chamber, who caused a special court to be convened ; but as the information was given during the term of the court, it was referred into the terra for consideration and final determination. John Weeden, being demanded and present in court, made the fol- lowing answer : " That it appears by the Act of 'the General Assembly, whereon said information is founded, that the said Act hath expired, and hath no force : also, for that by the said Act the matters of com- plaint are made triable before special courts, uncontrollable by th* Supreme Judiciary Court of the State ; and also for that the court is not, by said Act, authorized and empowered to impanel a jury to try the facts charged in the information ; and so the same is unconstitu- tional and void." . . . [Omitting only the verbatim report of the writer's argument, the report continues at page 37 as follows]: — The consequences of the foregoing determination were immediately felt. The shops and stores were generally opened, and business assumed a cheerful aspect. Few were the exceptions to a general con- gratulation, and lavish indeed were the praises bestowed upon the court. The dread and the idea of informations were banished together, while a most perfect confidence was placed in judicial security. The paper currency obtained a more extensive circulation, as "everyone found himself at liberty to receive or refuse it. The markets, which had been illy supplied, were now amply furnished, and the spirit of industry was generally diffused. Every prospect teemed with return- ing happiness, and nothing appeared wanting to restore union and harmony among the contending parties. The demon however of discord was not entirely subdued; for upon the next succeeding week a summons was issued -from both Houses of Assembly, requiring an immediate attendance of ithe judges, " to ren- der their reasons for adjudging an Act of theGeneral Assembly uncon- fititutional, and so void." Threeof the judges attended, the other two being unwell. This circumstance induced the Assembly to dismiss them at that time, but they were directed to appear at 'the October session next following. Accordingly three of the judges attended, and gave notice in writing to both Houses, "that they waited their ipleasure." They were in- formed that the Assembly was ready to hear them, and would proceed immediately upon the business for which they were in attendance. 76 TREVETT V. WEEDEN. [CHAP. I. Certain ceremonies being adjusted, and the records of the court produced, the Honorable Mr. Howell, the youngest justice, addressed himself to the Assembly in a very learned, sensible, and elaborate dis- course, in which he was upwards of six hours upon the floor. He observed, that the order by which the judges, were before the House might be considered as calling upon them to assist in matters of legislation, or to render the reasons of their judicial determination, as being accountable to the legislature for their judgment. That in the former point of view, the court was ever ready, as con- stituting the legal counsellors of the State, to render every kind of assistance to the legislative, in framing new or repealing former laws : ' but that for the reasons of their judgment upon any question judicially before them, they were accountable only to God and their own consciences. Under the first head, the honorable gentleman pointed out the objec- tionable parts of the Act upon which the information was founded, and most clearly demonstrated, by a variety of conclusive arguments, that it was unconstitutional, had not the force of a law, and could not be executed. His arguments were enforced by many authorities of the first eminence, in addition to those produced upon the trial. But as this part of the subject hath in a great measure been anticipated, we shall not enter into a further detail, concluding that the legal defence of the court, in showing " that they were not accountable to the legis- lature for the reasons of their judgment," wUl be more interesting to the public. Here it was observed, that the legislature had assumed a fact, in their summons to the judges, which was not justified or warranted by the records. The plea of the defendant, in a matter of mere surplus- age, mentions the Act of the General Assembly as " unconstitutional, and so void ; " but the judgment of the court simply is, " that the in- formation is not cognizable before them." Hence it appears that the plea hath been mistaken for the judgment. Whatever might have been the opinion of the judges, they spoke by their records, which admitted of no addition or diminution. They might have been influenced respectively bj' different reasons, as the whole Act was judicially before them, of which, it being general, they could judge by inspection, without confining themselves to the particular points stated in the plea. It would be out of the power, therefore, of the General Assembly to determine upon the propriety- of the court's judgment, without a particular explanation. If this could be required in one instance, it might in all ; and so the legislative would become the Supreme Judiciary. A perversion of power totally subversive of civil liberty ! If it be conceded, that the equal distribution of justice is as requisite to answer the purposes of government as the enacting of salutary laws, 1 See infra, Note on Advisory Opinions, p. 175. — Ed. SECT. II.] TREVETT V. WEEDEN. 77 it is evident that the jndiciarj' power shoiild be as independent as the legislative. And consequently the judges cannot be answerable for their opinion, unless charged with criminalit3'. . . . Judge Tillinghast observed, that nothing could have induced the gentlemen of the court to accept the office to which they were appointed, but a regard to the public good ; that their perquisites were trifling, and their salaries not worth mentioning. The onlj' recompense they expected, or could receive, was a consciousness of rectitude, which had supported them, and he was confident would support them, through every change of circumstances ; that melancholy indeed would be the condition of the citizens, if the Supreme Judiciarj- of the State was liable to reprehension, whenever the caprice or the resentment of a few leading men should direct a public inquiry ! That, as one member of the court, he felt himself perfectly independ- ent, while moving in the circle of his duty ; and however he might be affected for the honor of the State, he was wholly indifferent about any consequences that might possibly respect himself. That the opinion he had given resulted from mature reflection and the clearest conviction ; that his conscience testified to the purity of his intentions, and he was happy in the persuasion, that his conduct met the approbation of his God ! Judge Hazard. My brethren have so fully declared m}' sentiments upon this occasion, that I have nothing to add by way of argument. It gives me pain that the conduct of the court seems to have met the dis- pleasure of the administration. But their obligations were of too sacred a nature for them to aim at pleasing but in the Hue of their duty. It is well known that my sentiments have fully accorded with the general system of the legislature in emitting the paper currency ; but I never did, I never will, depart from the character of an honest man, to support any measures, however agreeable in themselves. If there could have been a prepossession in my mind, it must have been in favor of the Act of the General Assembly ; but it was not possible to resist the force of conviction. The opinion I gave upon the trial was dictated by the energy of truth : I thought it right — I still think so. Be it as it ma}', we derived our understanding from the Almighty, and to Him only are we accountable for our judgment. To the observations of the judges, succeeded a very serious and in- teresting debate among the members, wherein manj^ arguments and observations were adduced on both sides. At length a question was taken, " whether the Assembly was satisfied with the reasons given by the judges in support of their judgment?" It was determined in the negative. A motion was then made, and seconded, " for dismissing the 'judges from their office." ... [A memorial and protest from the judges, dated Nov. 4, 1786, was here presented to the Assembly, and Mr. Varnum was allowed to address the House in support of it.] The claim and demand of the judges, as stated in their memorial, 78 DEN d. BAYAED AND WIFE V. SINGLETON. [CHAP. i; and eufbrced by their counsel, were followed bj- a concise, but rational debate, in which the; fury of passion, excepting in one^or two instances, surrendered to cool reflection, and prepared the way for Vindicating the honcfr of the law, and the dignity of the State. In va;iil did any en- deavor to recall the mind to a predetermined resolution ! Truth, " which is lodged in a secret corner of the heart," exerted her gfentliB influence, while prejudice and malice retired abashed! Amotion was made bj' an honorable member, seconded, and agreed to, that the opinion of the Attornej'-General betaken, and the sentiments of the cither professional gentlemeflTequestSd, whether constitutionally', and agreeably to law, the General Assembly can suspend, or remove from ofllce, the judges of the Supreme Judiciary .Court, without a pre- vious charge and statement of criminality-, due- process, trial, and con- viction thereon? . . . [Addresses were then made by " Mr. Channing, the Attorney-General," and three othei-s, to the effect that the judges could onlj' be removed by impeachment or otherregular process.] The two professional gentlemen in the House, the Honorable Mr. March- ant and Mr. Bourne, confirmed the sentiments of their brethren, in the leading points, by a masterly display of legal talents. The only question remaining was, whether the judges should be dis- charged from an}' further attendance upon the General Assembly, as no accusaUon appeared- against them ? The question was put, and decided by a very great majoritj', " that as the judges are not charged' with any criminality in rendering the judgment, upon the infonnation, Trevett against Weeden, the\- are therefore discharged from any further attendance upon this Assembly, on that account." ^ DEN d. BAYARD and WIFE v. SINGLETON. Court of CoiNFERENCE of North Carolina.'' 1787. [1 Martin, N. C 42.] Ejectment. This actidn was brought for the recovery of a valuable house and lot, with a wharf and other appurtenances, situate in the town' of Newbern. The defendant pleaded ^f guilti/', under the common rule. He held under a title derived from the State, by a deed", from a Superintendent Cottlmissioner of confiscated estates. At May Term, 1786, Jl^ash, for the defendant, moved that the suit 1 CoxB, Judi Power and UnConst. Legis.j 237-38 (and sopatsim), treats this case as one arising under an unwritten constitution. This- -view seems to be inadmissible, Before the Eevolution, the charter of Rhode Island, so far as it went, was a written constitution. It continued to have the same character throughout. — Ed. 2 This seems to have been the name of the highest court' inthe State, before 1805. But the name is not given in Martin's Reports. See 4 Green Bag, 457. — Ejd. SECT. II.] DEN d. BAYARD AND WIFE V. SINGLETON. 79 be dismissed, according to an Act of the last session, entitled an Act to secure and quiet in their possession all such persons, their heirs and assigns, who have purchased or may hereafter purchase lands and tenements, goods and chattels, which have been sold or may hereafter be sold by commissioners of forfeited estates, legally appointed for that purpose, 1785, 7, 553. The Act requires the courts, in all cases where the defendant makes, affidavit that he holds the disputed property under a sale from a com- missioner of forfeited estates, to dismiss the suit on motion. The defendant had filed an affidavit, setting forth that the property in dispute had been confiscated and sold by the commissioner of the district. This brought on Jotig arguments from the counsel on each side, on constitutional points. The court made a few observations on our Constitution and system of government. Ashe, J. observed, that at the time of our separation from Great Britiain, we were thrown into a similar situation with a set of people shipwrecked and cast on a marooned island, — without laws, without magistrates, without government, or any legal authority — that being thus circumstanced, the people of this country, with a general union of sentiment, by their delegates, met in Congress, and formed that system or those fundamental principles comprised in the Constitution, dividing the powers of government into separate and distinct branches, to wit : the legislative, the judicial, and executive, and assigning to each, several and distinct powers, and prescribing their several limits and boundaries : this he said without disclosing a single senti- ment upon the cause of the proceeding, or the law introduced in support of it. Cur. adv. vult. At May Term, 1787, Nash's motion was resumed, and produced a very lengthy debate from the Bar. Whereupon the court recommended to the parties to consent to a fair deeision of the property in question, by a jury according to the common law of the land, and pointed out to the defendant the uncer- tainty that would always attend his title, if this cause should be dis- missed without a trial ; as upon a repeal of the present Act (which would probably happen sooner or later), suit might be again com- menced against him for the same property, at the time when evi- dences, which at present were easy to be had, might be wanting. But this recommendation was without effect. Another mode was proposed for putting the matter in controversy on a more constitutional footing for a decision, than that of the motion under the aforesaid Act. The court then, after every reasonable en- deavor had been used in vain for avoiding a disagreeable difference between the legislature and the judicial powers of the State, at length with much apparent reluctance,, but with great deliberation and 80 DEN d. BAYARD AND WIFE V. SINGLETON. [CHAP. I. firmness, gave their opinion separately, but unanimously, for over- ruling the aforementioned motion for the dismission of the said suits. In the course of which the judges observed, that the obligation of their oaths, and the duty of their office required them, in that situation, to give their opinion on that important and momentous subject ; and that notwithstanding the great reluctance they might feel against involving themselves in a dispute with the legislature of the State, yet no object of concern or respect could come in competition or authorize them to dispense with the duty they owed the public, in consequence of the trust they were invested with under the solemnity of their oaths. That they therefore were bound to declare that they considered, that whatever disabilities the persons under whom the plaintiffs were said to derive their titles, might justly have incurred, against their main- taining or prosecuting any suits in the courts of this State ; yet that such disabilities in their nature were merely personal, and not by any means capable of being transferred to the present plaintiffs, either by descent or purchase ; and that these plaintiffs, being citizens of one of the United States, are citizens of this State, by the confederation of all the States ; which is to be taken as a part of the law of the land, unrepealable by any Act of the General Assembly. That by the Constitution every citizen had undoubtedly a right to a decision of his property by a trial by jury. For that if the legislature could take away this right, and require him to stand condemned in his property without a trial, it might wifii as much authority require his life to bje taken away without a trial by jury, and that he should stapd condemned to die, without the formality of any trial at all ; that if the members of the General Assembly could do this, they might with equal authority, not only render themselves the legislators of the State for life, without any further election of the people, from thence transmit the dignity and authority of legislation down to their heirs male forever. But that it was clear, that no Act they could pass, could by any means repeal or alter the Constitution, because, if they could (Jo this, they would at the same instant of time destroy their own existence as a legislature, and dissolve the government thereby established. Consequently- the Constitution (which the judicial power was bound to take notice of as much as of any other law whatever), standing in full force as the fundamental law of the land, notwithstanding the Act on which the present motion was grounded, the same act must of course, in that instance, stand as abrogated and without any effect. ,Nash's motion was overruled. And at this term the cause was tried. . . . [The rest of the case, being immaterial as regards the present topic, is omitted.] ^ 1 See Coxe's comments on this case, Jud. Power & Unconst. Legis.,248e< seq.; and especially the letters of Iredell, afterwards a judge of the Supreme Court of the SECT. 11.] RESOLUTION OF CONGRESS. 81 Wednesday, March 21, 1787. ... On the report of the Secretary to the United States for the Department of Foreign Affairs . . . Con- gress unanimously agreed to the following resolutions : — Resolved, That the legislatures of the several States cannot of right pass any Act or Acts, for interpreting, explaining, or construing a national treaty or any part or clause of it ; nor for restraining, limit- ing, or in any manner impeding, retarding, or counteracting the opera- tion and execution of the same ; for that on being constitutionally made, ratified, and published, they become in virtue of the confedera- tion, part of the law of the land, and are not only independent of the will and power of such legislatures, but also binding and obligatory on them. Hesolved, That all such Acts or parts of Acts as may be now existing in any of the States, repugnant to the treaty of peace, ought to be forthwith repealed, as well to prevent their continuing to be regarded as violations of that treaty, as to avoid the disagreeable necessity there might otherwise be of raising and discussing questions touching their validity and obligation. Resolved, That it be recommended to the several States to make such repeal rather by describing than reciting the said Acts, and for that purpose to pass an Act declaring in general terms, that all such Acts and parts of Acts, repugnant to the treaty of peace between the United States and his Britannic Majesty, or any article thereof, shall be, and thereby are repealed, and that the courts of law and equity in all causes and questions cognizable by them respectively, and arising from or tbuching the said treaty, shall decide and adjudge according to the true intent and meaning of the same, anything in the said Acts or parts of Acts to the contrary thereof in anywise notwithstanding. — 12 Journals of Congress (ed. 1801), 23 ; Coxe, Jud. Power and Unconst. Leg., 387. Friday, April 13, 1787. . . . The Secretary for Foreign Affairs hav- ing, in pursuance of an order of Congress, reported the draught of a letter to the States accompanying the resolutions, passed the 21st day of March, 1787, the same was taken into consideration and unani- mously agreed to as follows : . . . Our national Constitution having committed to us the management of the national concerns with foreign States and powers, it is our duty to take care that all the rights which they ought to enjoy within our jurisdiction by the laws of nations and the faith of treaties, remain inviolate. . . . Let it be remembered that the Thirteen Independent Sovereign States have, by express delegation of power, formed and vested in us a gen- eral, though limited, sovereignty, for the general and national purposes specified in the confederation. In this sovereignty they cannot sever- ally participate (except by their delegates) nor with it have concurrent United States, written in August, 1786, and August, 1787, and reprinted by Coxe (pp. 253-263) from McKee's Life and Correspondence of James Iredell. — Ed. VOL. I. — 6 82 RESOLUTION OF CONGRESS; [CHAP. I. jurisdiction ; for the ninth article of tlie confederation most expressly conveys to us the sole and exclusive right and power of determining on war and peace, and of entering into treaties and alliances, &c. When, therefore, a treaty is constitutionally made, ratified, and pub- lished by us, it immediately becomes binding on the whole nation, and superadded to the laws of the land, without the intervention of State legislatures. Treaties derive their obligation from being compacts between the sovereign of this and the sovereign of another nation ; whereas laws or statutes derive their force from being the Acts of a legislature competent to the passing of tbem. Hence it is clear that treaties must be implicitly received and observed by every member of the nation ; for as State legislatures tire not competent to the making of such compacts or treaties, so neither are they competent in that capacity, authoritatively to decide on or ascertain the construction and sense of tiiem. When doubts arise respecting the construction of State laws, it is not unusual nor improper for the State legislatures, by explanatory or declaratory Acts to remove those doubts. But the case between laws and compacts or treaties is in this widely different ; for when doubts arise respecting the sense and meaning of a treaty, they are so far from being cognizable by a State legislature, that the United States in Congress assembled, have no authority to settle and determine them ; for as the legislature only, which constitutionally passes a law, has power to revise and amend it, so the sovereigns only, who are parties to the treaty, have power by mutual consent and posteripr articles, to correct or explain it. . . . How far such legislative Acts would be valid and obligatory even within the limits of the State passing them, is a question which we hope never to have occasion to discuss. Certain, however, it is that such Acts cannot bind either of the contracting sovereigns, and conse- quently cannot be obligatory on their respective nations. . . . Thus much we think it useful to observe, in order to explain the principles on which we have unanimously come to the following reso- lution, viz. . . . [Here is recited the first of the three resolutions given above.] As the treaty of peace, so far as it respects the matters and things provided for in it, is a law to the United States which cannot by all or any of them be altered or changed, all State Acts establishing pro- visions relative to the same objects which are incompatible with it, must in every point of view be improper. Such Acts do nevertheless exist ; but we do not think it necessary either to enumerate them par- ticularly, or to make them severally the subjects of discussion. It appears to us sufficient to observe and insist, that the treaty ought to have free course in its operation and execution, and that all obstacle? interposed by State Acts be removed. We mean to act with the most scrupulous regard to justice and candor towards Great Britain, and with an equal degree of delicacy, moderation, and decision towards the States who have given occasion to these discussions. SECT. II.] PASSAGES FROM THE FEDEEALIST. 83 For these reasons we have in general terms . . . [Here the second resolution is inserted.] Although this resolution applies strictly only to such of the States as have passed the exceptionable Acts alluded to, yet to obviate all future disputes and questions, as well as to remove those which now exist, we think it best that every State without exception should pass a law on the subject. We have therefore . . . [Here the third reso- lution is inserted.] Such laws would answer every purpose and be easily formed. The more they were of the like tenor throughout the States the better. They might each recite . . . [Here is inserted the draught of a stat- ute, embodying what the resolutions advised.] Such a general law would, we think, be preferable to one that should minutely enumerate the Acts and clauses intended to be repealed, because omissions might accidentally be made in the enume- ration, or questions might arise, and perhaps not be satisfactorily determined, respecting particular Acts or clauses, about which con- trary opinions may be entertained. By repealing in general terms all Acts and clauses repugnant to the treaty, the business will be turned over to its proper department, viz., the judicial, and the courts of law will find no difficulty in deciding whether any particular Act or clause is or is not contrary to the treaty. . By order of Congress. (Signed) Arthur St. Clair, President.^ — Ih. 32 ; CoxE, ubi supra, 388. NOTE. Passages pkom the Federalist. One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, execu- tive, and judiciary departments ought to be separate and distinct. . . . In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable pre- cept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavor, in the first place, to ascertain his meaning on this point. The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. . . . This great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty ; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us 1 See Mass. Stat. 1786, c. 86, passed, in the form recommended by Congress, on April 30, 1787. — Ed. 84 PASSAGES FROM THE FEDEKALIST. [CHAP. I. recur to the source from which the maxim was drawn. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The ex- ecutive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative Acts. All the members of the judiciary de- partment are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitu- tional councils. One branch of the legislative department forms also a great consti- tutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again^are so far connected with the legis- lative department as often to attend and participate in its deliherations, though not admitted to a legislative vote. Prom these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying " There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more condnsively as illustrated by the example in his eye, can amount to no more than this, tliat where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. ... If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in wliich this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. — Tlie Federalist (Lodge's ed.), Ko. 471 (Madison). It is agreed on all sides, that the powers properly belonging to one of the depart- ments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually re.itrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. What this security ought to be, is the great problem to be solved. Will it be suflicient to mark, with precision, the boundaries of these departments, in the constitution of the govern- ment, and to trust to these parchment barriers against the encroaching spirit of power 1 This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated ; and that some more adequate defence is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. ... In a representative republic, where the executive magistracy is carefully limited, both in the extent and tlie duration of its power ; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength ; which is sufficiently numerous to feel all the passions which actu- ate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge aU their jealousy and exhaust all ' For comments on the Federalist, a collection of papers published at intervals in 1787 and 1788, with the object of securing the adoption of the Federal Constitution, see Maine, Popular Govt., Essay IV. I have inserted here all such parts of the Fed- eralist as seem important for the purposes of this book. — Ed. SECT. II.] PASSAGES FROM THE FEDERALIST. 85 their precautions. The legislative department derives a superiority in our govern- ments from other circumstances. Its constitutional powers being at once more exten- sive, and less susceptible of precise limits, it can, witli the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordi- nate departmeuts. It is not unf requently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being de- scribed by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all : as the legislative department alone has access to the pockets of the people, and has iu some constitutions full discretion, and in all a prevailing influence, over the pecuniary re- wards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. — lb. No. 48 (Madison). To what expedient, then, shall we finally resort, for maintaining in practice the neces- sary partition of power among the several departments, as laid down in the Constitu- tion t The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their nmtual relations, be the means of keeping each other in their proper places. — Without presum- ing to undertake a full development of this important idea, I will hazard a few gene- ral observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own ; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the ap- pointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less diflficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department iu particular, it might be inexpedient to insist rigorously on the principle : first, because peculiar qualifications being essen- tial in the memliers, the primary consideration ought to be to select that mode of choice which best secures these qualifications; .secimdiy, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. . . . But the great security against a gradual concentration of the several powers in the same departmejit, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. ... A dependence on the people is, no doubt, the primary control on the government ; but experience has taught mankind the necessity of auxiliary precautions. . . . But it is not possible to give to each department an equal power of self-defence. In republican government, the legis- lative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches ; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defence with which the executive magistrate should be armed. But 86 PASSAGES FROM THE FEDERALIST. [CHAP. I perhaps it would be neither altogether safe nor alone sufficient. On ordinary occa- sions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. — lb. No. 51 (Hamilton or Madison). A review of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter. The first of these objections is, that the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and well established maxim which requires a separation between the different depart- ments of power. The true meaning of this maxim has been discussed and ascer- taiued in another place,, and has been sliown to be entirely compatible with a partial intermixture of those departments for special 'purposes, preserving them, in the main, distinct and unconnected. This partial intermixture is even, in some cases, not only proper but necessary to the mutual defence of the several members of the govern- ment against each other. An absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upou the encroachments of the executive. The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges ; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. As tlie concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this ad- ditional circumstance, will be as complete as itself can desire. It is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the Constitution of this State [New York] ; while that Constitution makes the Senate, together with the chau' cellor and judges of the Supreme Court, not only a court of impeachments, but the higliest, judicatory in the State, in all causes, civil and criminal. The proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of New York, in the last resort, may, with truth, be said to reside in its Senate. If the plan of the convention be, in this respect, chargeable with a departure from the celebrated maxim wliich has been so often mentioned, and seems to be so little understood, how much more culpable must be the Constitution of New York.i — /i. No. 66 (Hamilton). There is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well- wishers to this species of government must at least hope that the supposition is destitute of foundation ; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protec- tion of the community against foreign attacks ; it is not less essentiail to the steady administration of the laws ; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice ; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of exter- nal enemies who menaced the conquest and destruction of Rome. There can be no 1 In that of New Jersey, also, the final judiciary authority is in a branch of the legis- lature. In New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch of the legislature is the court for the tri:il of impoaihments. — Publics. SECT. II.] PASSAGES FROM THE FEDERALIST. 87 need, however, to multiply arguments or examples on this head. A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution ; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy '! How far can they be combined with those other ingredients which constitute safety in the re- publican sense ? And how far does tliis combination characterize the plan which has been reported by the convention t The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support ; fourthly, competent powers. The ingredients which constitute safety in the republican sense are, first, a due dependence on the people ; secondly, a due responsi- bility. Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have, with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand ; while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests. That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number ; and in pro- portion as the number is increased, these qualities will be diminished. — lb. No. 70 (Hamilton). The last of the requisites to energy, which have been enumerated, are competent powers. Let us proceed to consider those which are proposed to be vested in the President of the United States. The first thing that offers itself to our observation, is the qualified negative of the President upon the Acts or resolutions of the two Houses of the legisl.iture ; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body. The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated ; the insuf- ficiency of a mere parchment delineation of the boundaries of each, has also been remarlced upon; and the necessity of furnishing each with constitutional arms for its own defence, has been inferred and proved. From these clear and indubitable prin- ciples results the propriety of a negative, either absolute or qualified, in the Executive, upon the acts of the legislative branches. Without the one or the other, the for- mer would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authoritie. ity, that which was the last indication of its will should have the preference. But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority ; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. It can be of no weight to say that the courts, on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes ; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law ; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove anything, would prove that there ought to be no judges distinct from that body. If, then, the courts of justice are to be considered as the bulwarks of a limited con- stitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of design- SECT. II.] PASSAGES FKOM THE FEDERALIST. 91 ing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the mean time, to occasion danger- ous Innovations in the government, and serious oppressions of the minor party iu the community. Though I trust the friends of the proposed Constitution will never concur with its enemies,! iu questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the pro- visions iu the existing Constitution, would, on that account, be justifiable in a violation of those provisions ; or that the courts would be under a greater obligation to connive at infractions iu this shape, tlian when they had proceeded wholly from the cabals of tlie represeutative body. Until the people have, by some solemn and authoritative Act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually ; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an Act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community. But it is not with a view to infractions of the Constitution only, that the independ- ence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance iu mitigating tlie severity and confining the operation of such laws. It not only serves to moderate the imme- diate mischiefs of those which may have been passed, but it operates as a checlt upon the legislative body in passing them ; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moder- ation of the judiciary liave already been felt in more States than one ; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinter- ested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts ; as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Peri- odical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an im- proper complaisance to the branch which possessed it ; if to both, there would be an unwillingness to hazard the displeasure of either ; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popu- larity, to justify a reliance that nothing would be consulted but the Constitution and the laws. There is yet a further and a weightier reason for the permanency of the judicial oflices, which is deducible from the nature of the qualifications they require. It has 1 Vide " Protest of the Minority of the Convention of Pennsylvania,'' Martin's Speech, etc. — Publics. 92 PASSAGES FROM THE FEDERALIST. [CHAP. I. been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them ; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of man- kind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious stndy to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite tlie requisite integitty with the requisite knowledge. These considerations apprise us, that the government can have no great option be- tween fit character ; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear ; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject. Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration ; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution. — lb. No. 78 ^ (Hamilton). There ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them ? The States, by the plan of the convention, are prohibited from doing a, variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States. As to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. If there are such things as political axioms, the propriety of the judicial power of a government being co-extensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the inter- pretation of the national laws, decides the question. — lb. No. 80 (Hamilton). That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men wlio object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advo- cate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body. 1 Compare Federalist, No. 44. — Ed. SECT. II.] PASSAGES FROM THE FEDERALIST. 93 The arguments, or rather .suggestions, upon which this charge is founded, are to this effect : " The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution will enable that court to mould them into whatever shape it may think proper ; especially as its decisions will not be in any manner subject to the revision or correction of the legisla- tive body. This is as unprecedented as it is dangerous. In Britain, the judioial power, in the last resort, resides in the House of Lords, which is a branch of the legis- lature ; and this part of the British government has been imitated in the State constitu- tions in general 'Ihe Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionaljle decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless." This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact. In the first place, there is not a syllable in the plan under consideration which di- rectly empowers the national courts to construe the laws according to the spirit of the Constitution, or whicli gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that tlie Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to tlie Constitution. But this doctriue is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution ; and as far as it is true, is equally applicable to most, if not to all the State governments. There cau be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn eyery constitution that attempts to set bounds to legislative discretion. But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magis- trates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a part of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them ; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial ofBces, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing ; in the last, to those of a temporary and mutable con- stitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be de- ficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges ; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will he no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides wiU be too apt to stifle the voice both of law and of equity. These considerations teach us to applaud the wisdom of those States who have com- 94 vanhorne's lessee v. dokrance. [chap. i. mitted the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the conveution, in this respect, as novel and unprece- dented, it is but a copy of the Constitutions of New Hampshire, Massachusetts, I'enn- sylrania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia ; and the preference which has been given to those models is highly to be commended. ^t IB not true, in the second place, that the Parliament of Great Britain, or the ' legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, iu any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, author- izes the revisal of a judicial sentence by a legislative Act. Nor is there anything in the proposed Constitution, more than in either of them^by which it is forbidden. In the former, as well as in the latter, the impropriety of tne thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case ; though it may pre- scribe a new rule for future cases. This is the principle, and it applies in all its con- sequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject. It may in the last place be observed that the supposed danger of judiciary encroach- ments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen ; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the politi- cal system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments iu one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a com- plete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to re- move all apprehensions on the subject, it affords, at the same time, a cogent argu- ment for constituting the Seiiate a court for the trial of impeachments. — lb. No. 81 (Hamilton). VANHOKNE'S LESSEE v. DORRANCE. CmCtJIT CODKT OF THE UNITED StATES, PENNSYLVANIA DISTRICT. 1795. [2 Dallas, 304.] This was a cause of great expectation, involving several important questions of constitutional law, in relation to the territorial contro- versy between the States of Pennsylvania and Connecticut. After a trial, which continued for fifteen days, the presiding judge delivered the following charge to the jury, comprising a full review of all the important facts and principles that had occurred during the discussion. Patterson, J. Having arrived at the last stage of this long and SECT. II.] VANHORNE'S LESSEE V. DORRANCE. 95 interesting cause, it now becomes the duty of the court to sum up the evidence, and to declare the law arising upon it. A mass of testi- mony has been brought forward in the course of the trial, the far greater part of which is altogether immaterial, and can be of no use in forming a decision. The great points, on which the cause turns, are of a legal nature ; they are questions of law ; and, therefore, for the sake of the parties, as well as for my own sake, they ought to be put in a train for ultimate adjudication by the Supreme Court. In the administration of justice it is a consolatory idea, that no opinion of a single judge can be final and decisive ; but that the same may be removed before the highest tribunal for revision, where, if erroneous, it will be rectified. For the sake of clearness, I shall consider, 1st. The title of the plaintiff. 2d. The title of the defendant. . . . Such is the title upon which the plaintiff rests his cause. It is clearly deduced and legally correct ; and, therefore, unless suflScient appears on the part of the defendant, will entitle the plaintiff to your verdict. To repel the plaintiff's right, and to establish his own, the defendant sets up a title. 1st. Under Connecticut. 2d. Under the Indians. 3d. Under Penn- sylvania. . . . [Under the first two the defendant is declared to have no title.] III. The title which the defendant sets up under Pennsylvania. This is the keystone of the defendant's title, as one of his counsel very properly expressed it. It required no great sagacity to perceive that the defendant's hope of success was founded on a law of Penn- sylvania, commonly called "the quieting and confirming Act." . . . To aid you, gentlemen, in forming a verdict, I shall consider : I. The constitutionality of the confirming Act ; or, in other words, whether the legislature had authority to make that Act ? Legislation is the exercise of sovereign authority. High and im- portant powers are necessarily vested in the legislative body ; whose Acts, under some forms of government, are irresistible and subject to no control. In England, from whence most of our legal principles and legislative notions are derived, the authority of the Parliament is transcendent and has no bounds. " The power and jurisdiction of Parliament, says Sir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. And of this high court, he adds, it may be truly said. Si antiquitatem species, est vetustissima ; si dignitatem, est honoratissima ; si jurisdictionem, est capacissima. It has sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expound- ing of laws, concerning matters of all possible denominations, ecclesi- astical or temporal, civil, military, maritime, or criminal : this being the place where tliat absolute, despotic power which must in all gov- ernments reside somewhere, is intrusted by the Constitution of these 96 vanhorne's lessee v. dokeance. [chap. I. kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the Crown, as was done in the reign of Henry VIII. and William III. If can alter the established religion of the land, as was done in a variety of instances, in the reigns of King Henry VIII. and his three children. It can change and create afresh even the Consti- tution of the kingdom and of Parliaments themselves, as was done by the Act of Union, and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impos- sible ; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what the Parliament doth, no authority upon earth can undo.'' — 1 JBl. Com. 160. From this passage it is evident that, in England, the authority of the Parliament runs without limits, and rises above control. It is diffi- cult to say what the Constitution of England is ; because, not being reduced to written certainty and precision, it lies entirely at the mercy of the Parliament : it bends to every governmental exigency ; it varies and is blown about by every breeze of legislative humor or political caprice. Some of the judges in England have had the boldness to assert that an Act of Parliament, made against natural equity, is void ; but this opinion contravenes the general position, that the validity of an Act of Parliament cannot be drawn into question by the judicial department : it cannot be disputed, and must be obeyed. The power of Parliament is absolute and transcendent ; it is omnipotent in the scale of political existence. Besides, in England there is no written constitution, uo fundamental law, nothing visible, nothing real, noth- ing certain, by which a statute can be tested. In America the case is widely different : every State in the Union has its Constitution reduced to written exactitude and precision. What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed ; it contains the permanent will of the people, and is the su- preme law of the land ; it is paramount to the power of the legisla- ture, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are legislatures ? Creatures of the Con- stitution ; they owe their existence to the Constitution : they derive their powers from the Constitution : it is their commission ; and, there- fore, all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the people themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the legislature in their derivative and subordinate capacity. The one is the work of the creator, and the other of the creature. The Constitution fixes limits to the exercise of legislative authority, and SKCT. II.] YANHOENE'S LESSEE V. DOREANCE. 97 prescribes the orbit within which it must move. In short, gentlemen, the Constitution is the sun of the political system, around whicli all legislative, executive, and judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every Act of the Legislature, repugnant to the Constitution, is absolutely void. In the second article of the Declaration of Rights, which was made part of the late Constitution of Pennsylvania, it is declared, " that all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and under- standing ; and that no man ought or of right can be compelled, to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to or against his own free will and consent ; nor can any man who acknowledges the being of a God be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship ; and that no authority can, or ought to be, vested in or assumed by any power whatever, that shall, in any case, interfere with, or in any man- ner control, the right of conscience in the free exercise of religious worship." — Dec. of Rights, Art. 2. In the thirty-second section of the same Constitution, it is ordained, " that all elections, whether by the people or in general assembly, shall be by ballot, free and voluntary." — Const. Penn. § 32. Could the legislature have annulled these articles, respecting re- ligion, the rights of conscience, and elections by ballot? Surely, no. As to these points, there was no devolution of power ; the authority was purposely withheld, and reserved by the people to themselves. If the legislature bad passed an Act declaring that, in future, there should be no trial by jury, would it have been obligatory ? No ; it would have been void for want of jurisdiction, or constitutional extent of power. The right of trial by jury is a fundamental law, made sacred by the Constitution, and cannot be legislated away. The Constitution of a^ State is stable and peiTnanent, not to be worked upon by the temper ' of the times, nor to rise and fall with the tide of events : notwith- I standing the competition of opposing interests, and the violence of [ contending parties, it remains firm and immovable, as a mountain amidst the strife of storms, or a rock in the ocean amidst the raging ' of the waves. I take it to be a clear position, that if a legislative Act oppugns a constitutional principle, the former must give way, and be rejected on the score of repugnance. I hold it to be a position equally clear and sound, that, in such case, it will be the duty of the court to adhere to the Constitution, and to declare the Act null and void. The Constitution is the basis of legislative authority ; it lies at the founda- tion of all law, and is a rule and commission by which both legislators and judges are to proceed. It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost VOL. I. — 7 98 vanhokne's lessee v. dourance. [chap. I. sight of, that the judiciary in this country ia not a subordinate, but co-ordinate, branch of the government. Having made these preliminary observations, we shall proceed to contemplate the quieting and confirming Act, and to bring its validity to the test of the Constitution. In the course of argument, the counsel on both sides relied upon certain parts of the late Bill of Eights and Constitution of Pennsyl- vania, which I shall now read, and then refer to them occasionally in the sequel of the charge. (The judge then read the 1st, 8th, and«llth articles of the Declara- tion of Rights ; and the 9th and 46th sections of the Constitution of Pennsylvania. See 1 Vol. Dall. Edit. Penn. Laws, pp. 55, 56, 60, in the Appendix.) From these passages it is evident that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man. Men have a sense of prop- erty : property is necessary to their subsistence, and correspondent to their natural wants and desires ; its security was one of the objects that induced them to, unite in society. No man would become a member of a community in which he could not enjoy the fruits of his honest labor and industry. The preservation of property, then, is a primary object of the social compact, and, by the late Constitution of Pennsylvania, was made a fundamental law. Every person ought to contribute his proportion for public purposes and public exigencies ; but no one can be called upon to surrender or sacrifice his whole property, real and personal, for the good of the community, without receiving a recompense in value. This would be laying a burden upon an individual, which ought to be sustained by the society at large. The English history does not furnish an instance of the kind ; the Parliament, with all their boasted omnipotence, never committed such an outrage on private property ; and if they had, it would have served only to display the dangerous nature of unlimited authority ; it would have been an exercise of power, and not of right. Such an Act would be a monster in legislation, and shock all mankind. The legis.- lature, therefore, had no authority to make an Act divesting one citizen of his freeliold, and vesting it in another, without a just compensation. It is inconsistent with the principles of reason, justice, and moral rec- titude ; it is incompatible with the comfort, peace, and happiness of mankind ; it is contrary to the principles of social alliance in every free government ; and lastly, it is contrary both to the letter and spirit of the Constitution. In short, it is what every one would think unreasonable and unjust in his own case. The next step in the line of progression is, whether the legislature had authority to make an Act, divesting one citizen of his freehold and vesting it in another, even with compensation. That the legislature, on certain emergen- cies, had authoiity to exercise this high power, has been urged from the nature of the social compact, and from the words of the Constitu- SECT. II.] VANHOKNE'S LESSEE V. DOKRANCB. 99 tion, which says, that the House of Representatives shall have all other powers necessary for the legislature of a free State or commonwealth ; but they shall have no power to add to, alter, abolish, or infringe any part of this Constitution. The course of reasoning, on the paiJ; of the defendant, may be comprised in a few words. The despotic power, as it is aptly called by some writers, of taking private property, when State necessity requires, exists in every government ; the existence of such power is necessary ; government could not subsist without it ; and if this be the case, it cannot be lodged anywhere with so much safety as with the legislature. The presumption is, that they will not call it into exercise except in urgent cases, or cases of the first neces- sity. There is force in this reasoning. It is, however, difficult to form a case, in which the necessity of a State can be of such a nature as to authorize or excuse the seizing of landed property belonging to one citizen, and giving it to another citizen. It is immaterial to the State in which of its citizens the land is vested ; but it is of primary importance that, when vested, it should be secured, and the proprietor protected in the enjoyment of it. The Constitution encircles and ren- ders it an holy thing. We must, gentlemen, bear constantly in mind, that the present is a case of landed propert}', vested by law in one set of citizens, attempted to be divested, for the purpose of vesting the same property in another set of citizens. It cannot be assimilated to the case of personal property taken or used in time of war or famine, or other extreme necessitj' ; it cannot be assimilated to the temporary possession of land itself, on a pressing public emergenc}-, or the spur of the occasion. In the latter case there is no change of property, no divestment of right ; the title remains, and the proprietor, though out of possession for a while, is still proprietor and lord of the soil. The possession grew out of the occasion and ceases with it : then the right of necessitj' is satisfied and at an end ; it does not affect the title, is temporary in its nature, and cannot exist forever. The Constitution expressly declares, that the right of acquiring, possessing, and pro- tecting property is natural, inherent, and unalienable. It is a right not ex gratia from the legislature, but ex debito from the Constitution. It is sacred; for, it is further declared, that the legislature shall have no power to add to, alter, abolish, or infringe any part of, the Constitution. The Constitution is the origin and measure of legislative authority ; it says to legislators, thus far ye, shall go and no further. Not a par- ticle of it should be shaken ; not a pebble of it should be removed. Innovation is dangerous. One encroachment leads to another ; prece- dent gives birth to precedent ; what has been done may be done again ; thus radical principles are generally broken in upon, and the Constitution eventually destroyed. Where is the security, where the inviolability of property, if the legislature, by a private Act, affecting particular persons only, can take land from one citizen, who acquired it legally, and vest it in another ? The rights of private property are regulated, protected, and governed by general, known, and established laws ; and 100 vanhorne's lessee v. doerance. [chap. I. decided upon by general, known, and established tribunals ; laws and tribunals not made and created on an instant exigencj^, on an urgent emergency, to serve a present turn, or the interest of a moment. Their operation and inHuence are equal and universal; they press alike on all. Hence securitj' and safet}', tranquillitj' and peace. One man is not afraid of another, and no man afraid of the legislature. It is infi- nitely' wiser and safer to risk some possible mischiefs, than to vest in the legislature so unnecessary, dangerous, and enormous a power as that which has been exercised on the present occasion ; a power that, according to the full extent of the argument, is boundless and omnipo- tent : for the legislature judged of the necessity of the case, and also of the nature and value of the equivalent. Such a case of necessitj-, and judging too of the compensation, can never occur in any nation. Singular, indeed, and untoward must be the state of things, that would induce the legislature, supposing they had the power, to divest one individual of his landed estate merely for the purpose of vesting it in another, even upon full indemnification ; unless that indemnification be ascertained in the manner which I shall mention hereafter. But admitting that the legislature' can take the real estate of A. and give it to B. on making compensation, the principle and reasoning upon it go no further than to show, that the legislature are the sole and ex- clusive judges of the necessity of the case, in which this despotic power should be called into action. It cannot, on the principles of the social alliance, or of the Constitution, be extended bej-ond the point of judg- ing upon everj- existing case of necessity. The legislature declare and enact, that such are the public exigencies, or necessities of the State, as to authorize them to take the land of A. and give it to B. ; the dictates of reason and the eternal principles of justice, as well as the sacred principles of the social contract, and the Constitution, direct, and thej- accordingly declare and ordain, that A. shall receive compen- sation for the land. But here the legislature must stop ; thej' have run the full length of their authorit}-, and can go no further: they cannot constitutionally' determine upon the amount of the compensa- tion, or value of the land. Public exigencies do not require, necessity does not demand, that the legislature should, of themselves, without the participation of the proprietor, or intervention of ajury, assess the value of the thing, or ascertain the amount of the compensation to be paid for it. This can constitutionally be effected only in three ways. 1 . By the parties ; that is, by stipulation between the legislature and proprietor of the land. 2. By commissioners mutuall}- elected bj' the parties. 3. Bj' the intervention of a jury. The compensatory part of the Act lies in the ninth section. ... In this section two things are worthy of consideration. 1 . The mode or manner in which compensation for the lands is to be ascertained. SKCT. II.J VANHOKSfi'S LESSEE V. DOERANCE. 101 2. The nature of the compensation itself. The Pennsylvania claimants are directed to present their claims to the Board of Property — and what is the Board to do thereupon ? Why, it Is, 1. To judge of tlie validity of their claims. 2. To ascertain, by the aid and through the medium of commission- ers, appointed by the legislature, the quality and value of the land. 3. To judge of the quantity of vacant land to be granted as an equivalent This is not the constitutional line of procedure. I have already observed, that there are but three modes, in which matters of tliis kind can be conducted consistently with the principles and spirit of the Constitution, and social alliance. The first of which is by the parties, that is to say, by the legislature and proprietor of the land. Of this the British history presents an illustrious example in the case of the Isle of Man. " The distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the rev- enue (it affording a commodious asylum for debtors, outlaws, and smugglers) authority was given to the treasur3', by statute 12 Geo. I. c. 28, to purchase the interest of the then proprietors for the use of the Crown; which purchase was at length completed in the 3'ear 1765, and confirmed by statutes 5 Geo. III. c. 26 and 38, whereby the whole island and all its dependencies, so granted, as aforesaid (except the landed property of the Atholl famil}-, their manorip,l rights and emol- uments, and the patronage of bishoprics, and other ecclesiastical bene- fices) are unalienably vested in the Crown, and subjected to the regulations of the British excise and customs." — 1 Bl. Com. 107. Shame to American legislation ! That in England, a limited mon- archy, where there is no written constitution, where the Parliament is omnipotent, and can mould the Constitution at pleasure, a more sacred regard should have been paid to property, than in America, surrounded as we are with a blaze of political illumination ; where the legislatures are limited ; where we have republican governments, and written con- stitutions, by which the protection and enjoyment of property are rendered inviolable. The case of the Isle of Man was a fair and honorable stipulation ; it partook of the spirit and essence of a contract ; it was free and irmtual ; and was treating with the proprietors on equal terms. But if the busi- ness cannot be effected in this way, then the value of the land, intended to be taken, should be aseertained by commissioners, or persons mu- tually elected by the parties, or by the intervention of the judiciary, of which a jury is a component part. In the first case, we approximate nearly to a contract ; because the will of the part}', whose property is to be aflfected, is in some degree exercised ; he has a choice ; his own act co-operates with that of the legislature. In the other case, there is the intervention of a court of law, or, in other words, a jury is to 102 vanhorne's lessee v. dorrance. [chap. I. pass between the public and the individual, ■who, after hearing the proofs and allegations of the parties, will, by their verdict, fix the value of the property, or the sum to be paid for it. The compensation, if not agreed upon by the parties or their agents, must be ascertained bj' a jury. The interposition of a jurj- is, in such case, a constitational guard upon property, and a necessary check to legislative authority. It is a barrier between the individual and the legislature, and ought never to be removed ; as long as it is preserved, the rights of private propertj- will be in no danger of violation, except in cases of absolute necessity, or great public utility. B}- thc^conflfming Act, the value of the land taken, and the value of the land to be paid in recompense, are to be ascertained b3' the Board of Property. And who are the persons that constitute this Board? Men appointed by one of the par- ties, by the legislature only. The person, whose property is to be divested and valued, had no volition, no choice, no co-operation in the appointment; and besides, the other constitutional guard upon prop- erty, that of a jury, is removed and done awaj'. The Board of Prop- erty thus constituted, are authorized to decide upon the value of the land to be taken, and upon the value of the land to be given bj' way of equivalent, without the participation of the part^', or the intervention of a jurj'. 2. The nature of the compensation. Bj- the Act the equivalent is to be in land. No just compensation can be made except in monej-. Mone\- is a common standard, by comparison with wliich the value of anj-thing may be ascertained. It is not only a sign which represents the respective values of commod- ities, but is an universal medium, easily portable, liable to little varia- tion, and readilj' exchanged for any kind of property. Compensation is a recompense in value, a quid pro quo, and must be in money. True it is, that land or anything else may be a compensation, but then it must be at the election of the party ; it cannot be forced upon him. His consent will legalize the Act, and make it valid ; nothing short of it will have the effect. It is obvious, that if a jury pass upon the sub- ject, or value of the property', their verdict must be in monej-. To close this part of the discourse : It is contended that the legisla- ture must judge of the necessitj' of interposing their despotic authoritj' ; it is a right of necessity upon which no other power in government can decide : that no civil institution is perfect ; and that cases will occur, in which private property must yield to urgent calls of public utility or general danger. Be it so. But then it must be upon com- plete indemnification to the individual. Agreed : but who shall judge of this? Did there also exist a State necessity, that the legislature, or persons solely appointed by them, must admeasure the compensation, or value of the lands seized and taken, and the validity of the title thereto? Did a third State necessity exist, that the proprietor must take land by way of equivalent for his land ? And did a fourth State necessity exist, that the value of this land equivalent must be adjusted SECT. II.j VANHOBNE'S LESSEE V. DOEEANCE. 103 by the Board of Property, without the consent of the party, or the in- terference of a jury ? Alas ! how necessity begets necessity. They tise upon each other and become endless. The proprietor stands afar olf, a solitary and unprotected member of the community, and is stripped of his propert}", without his consent, without a hearing, with- out notice, the value of that property judged upon without his partici- pation, or the intervention of a jurj', and the equivalent therefor in lands ascertained in the same waj'. If this be the legislation of a republican government, in which the preservation of propert3- is made saci'ed b}- the Constitution, I ask, wherein it differs from the man- date of an Asiatic prince? Omnipotence in legislation is despotism. According to this doctrine, we have nothing that we can call our own, or are sure of for a moment ; we are all tenants at will, and hold our landed property at the mere pleasure of the legislature. Wretched situation, precarious tenure ! And yet we boast of property and its security, of laws, of courts, or constitutions, and call ourselves free I In short, gentlemen, the confirming Act is void ; it never had consti- tutional existence ; it is a dead letter, and of no more virtue or avail, than if it never had been made. II. But, admitting the confirming Act to be constitutional and valid, the next subject of inquiry is, what is its operation, or, in other words, what construction ought to be put upon it? ... [It is declared that the Act only purported to vest the estate in the Connecticut claimants on certain conditions, which have not been performed.] III. The nature and operation of the suspending Act. This Act was passed the 29th of March, 1788, and is as follows : (Here the Judge read the Act at large. ) This Act was passed befoi-e the adoption of the Constitution of the United States, and therefore is not aflfected by it. If the legislature had authority to make the confirming Act, they had, also, authority to suspend it. Their constitutional power reached to both, or to nei- ther. By the Act of the 28th of March, 1787, the eotnmissioners were to ascertain and confirm the claims of the Connecticut settlers, upon the doing whereof the estate, if the law was constitutional, would be- come vested in them. This has not been done ; the claim in the pres- ent instance has not been ascertained and confirmed ; and as this Act suspends or revokes these ascertaining and confirming powers, it never can be doffe. Of course, there is an end of the business. The parties are placed on their Original ground ; they are restored to their pristine situation. IV. After the opinion delivered on the preceding questions, it is not necessary to determine upon the validity of the repealing law. But it being my intention in this charge to decide upon all the material points in the cause, in order that the whole may, at once, be carried before the Supreme Judicature for revision, I shall detain you, gentle- men, a few minutes only, while I just touch upon the constitutionality 104. vanhokne's lessee v. dokeance. [chap. I. of the repealing Act. This Act was passed the 1st of April, 1790 : the repealing part is as follows. (Here the Judge read the 1st and 2d sections of the Act. See 2 Vol. Dall. Edit. Penn. Laws, p. 786.) This Act was made after the adoption of the Constitution of the United States, and the argument is, that it is contrary to it. 1. Because it is an ex post facto law. 2. Because it is a law impairing the obligation of a contract. 1. That it is an ex post facto law. But what is the fact? If making a law be a fact within the words of the Constitution, then no law, when once made, can ever be repealed. Some of the Connecticut settlers presented their claims to the commissioners, who received and entered them. These are facts. But are they facts of any avail? Did they give any right or vest any estate ? No — whether done or not done, they leave the parties just where they were. Thej- create no interest, affect no title, change no property ; when done they are use- less and of no eflScacy. Other Acts were necessary to be performed, but before the performance of them, the law was suspended and then repealed. 2. It impairs the obligation of a contract, and is therefore void. If the propeiiy to the lands in question had been vested in the State of Pennsj-lvania, then the legislature would have had the liberty and right of disposing or granting them to whom they pleased, at any time, and in any manner. Over public property they have a disposing and con- trolling power, over private property thej- have none, except, perhaps, in certain cases, and those under restrictions, and except also, what may arise from the enactment and operation of general laws respect- ing property, which will affect themselves as weU as their constituents. But if the confirming Act be a contract between the Legislature of Pennsj-lvania and the Connecticut settlers, it must be regulated by the rules and principles which pervade and govern all cases of con- tracts ; and if so, it is clearly void, because it tends, in its operation and consequences, to defraud the Pennsjivania claimants, who are third persons, of their just rights ; rights ascei-tained, protected, and secured by the Constitution and known laws of the land. The plain- tiff's title to the land in question is legally' derived from Pennsj-lvania ; how then, on the principles of contract, could Pennsylvania lawfully dispose of it to another? As a contract, it could convey no right, without the owner's consent ; without that, it was fraudulent and void. I shall close the discourse with a brief recapitulation of its leading points. 1. The confirming Act is unconstitutional and void. It was invalid from the beginning, had no life or operation, and is preciselj' in the same state, as if it had not been made. If so, the plaintiff's title remains in full force. 2. If the confirming Act is constitutional, the conditions of it have not been performed ; and, therefore, the estate continues in the plaintiff. SECT, n.] COOPER V. TELFAIR. 105 3. The confirming Act has been suspended — and 4. Repealed. The result is, that the plaintiff is, by law, entitled to recover the premises in question, and of course to your verdict. Verdict for the 'plaintiff.^ COOPER V. TELFAIR. Supreme Court of the Unfied States. 1800. [4 Dallas, 14 ; 1 Curtis' s Decisions, 314.] This was a writ of error to the Circuit Court of the United States for the District of Georgia. The plaintiff in error brought an action of debt on a bond dated in 1774, against the defendant, as obligor. The defendant pleaded that by an Act of the Legislature of the State of Georgia, passed on the 4th day of May, 1782, the plaintiff and other persons named in the Act, were banished from the State, and their property, real and personal, including all debts due to each of them at the date thereof, was confiscated to the State, such persons being at the same time declared by the Act guilty of high treason. That by virtue of this Act, and another Act passed on the 10th day of February, 1787, giving certain powers to the auditors of the State, this debt became vested in the State of Georgia, and no cause of ac- tion hath aceriied to the plaintiff. To this plea the plaintiff replied, in substance, that he had never been tried, convicted, or attainted of treason, and that the Acts relied on were repugnant to the Consti- tution of Georgia, adopted on the 5th day of February, 1777, and so were void. To this replication there was a demurrer, which was joined, and the Circuit Court held the plea good. The cause was argued by E. Tilghman, for the plaintiff, and by Ingersoll and Dallas for the defendant. 1 For the early cases in the Federal Courts, see Meigs, 19 Am. Law Rev. 186. The case in the text appears to be the earliest Federal decision. The informal utter- ances of the Circuit Court Judges, in letters and memoranda, reported in the note to Bayburris Case, 4 Dall. 409, in 1792, announce their opinions, that an Act of Congress of March 23, 1792 (1 St. at Large, 243), was unconstitutional ; just as Chief Justice Jay and several of the judges of the Supreme Court, in 1790, in a letter intended for the President, had made a like declaration as to a part of the Judiciary Act of 1789. See 4 Am. Jurist, 293; 2 Story, Const, s. 1579, note. But in these there was no judicial utterance. In the case of Yale Todd (February, 1794), preserved in a note to U. S. v. Ferreira, 13 How. 52, it was decided that the theory of the legislation of March 23, 1792, adopted by some of the judges, viz., that it gave them authority to act as commis- sioners, was untenable. It is inaccurate to say that this case holds the Act of 1792 to be unconstitutional, as appears to be said in the note in 13 How. 52, and as is expressly said in the Reporter's note in 131 V. S., Appendix, ccxxxv. Marburi) v. Madison is the earliest Federal decision in the Supreme Court. — Ed. 106 OOOPEE V. TELtAIR. [CHAP. t The judges (except the Chief Justice, whoi had decided the cause in the Circuit Court) delivered their opinions, seriatim^ in substance, as follows : Washington, J. The Constitution of G-eorgia does not expressly interdict the passing of an Act of attainder and confiscation, by the authority of the legislature. Is such an Act, then, so repugnant to any constitutional regulation, as to be excepted from the legislative jurisdiction, by a necessary implication? Where an offence is not comrpitted within some county of the State, the Constitution makes no provision for a trial, neither as to the place)»nor as to the manner. Is such an offence (perhaps the most dangerous treason) to be considered as beyond the reach of the government, even to forfeit the property of the offender, within its territorial boundary? If the plaintiff in error had shown that the offence with which he was charged had been committed in any county of Georgia, he might have raised the ques- tion of conflict and collision, between the Constitution and the law ; but as that fact does not appear, there is no ground on which I could be prepared to say that the law is void. The presumption, indeed, must always be in favdr of the validity of laws, if the contrary is not clearly demonstrated. Chase, J. I agree, for the reason Which has been assigned, toi aflSrm the judgment. Before the plaintiff in error Could claim the benefit of a trial bj- jur^', under the Constitution, it was, at least, in- cumbent upon him to show, that the offence charged was committed in some county of Georgia, in Which case alone the Constitution provides for the trial. But even if he had established that fact, 1 should not have thought the law a violation of the Constitution. The general principles contained in the Constitution are not to be regarded as rules to fetter and control, but as matter merely declaratory and directory ; for, even in the Constitution itself, we may trace repeated departures from the theoretical doctrine, that the legislative, executive, and judicial powers should be kept separate and distinct. There is, likewise, a material difference between laws passed by the individual States during the Revolution, and laws passed subsequent to the organization of the Federal Constitution. Few of the Revolutionary Acts would stand the rigorous test now applied ; and although it is alleged that all Acts of the Legislature, in direct opposition to the pro- hibitions of the Constitation, would be void, j-et it still remains a ques- tion, where the power resides to declare it void. It is, indeed, a general opinion, it is expressly admitted by all this Bar, and some of the judges have, individually, in the circuits, decided that the Supreme Court can declare an Act of Congress to be unconstitutional, and, therefore, in- valid ; but there is no adjudication of the Supreme Court itself upon the point. I concur, however, in the general sentiment, with reference to the period, when the existing Constitution came into operation ; but • whether the power, under the existing Constitution, can be employed to invalidate laws previously enacted, is a verj' different question, turn- SECT. 11.] MAEBUKY V. MADISON. 107 ing upon very different principles, and witli respeet to which I abstain from giving an opinion, since, on other ground, I am satisfied with the correctness of the judgment of the Circuit Court. Pateeson, J. I consider it a sound political proposition, that wherever the legislative power of a government is undefined it includes the judicial and executive attributes. The legislative power of GeOr^ gia, though it is In some respects restricted and qualified, is not defined bj- the Constitution of the State. Had, then, the legislature power to punish its citizens, who had joined the enem}', and could not be pun- ished by the ordinary course of law ? It*is denied, because it would be an exercise of judicial authority. But the power of confiscation and banishment does not belong to the judicial authotitj', whose process could not reach the offenders ; and yet it is a power that grows out of the very nature Of the social compact, which must reside somewhere^ and which is so inherent in the legislature that it cannot be divested or transferred, without an express provision of the Constitution. The constitutions of several of the other States of the Union con- tain the same general principles and restrictions ; but it never was imagined that they applied to a case like the present, and to authorize this court to pronounce any law void, it must be a dear and unequiv- ocal breach of the Constitution, not a doubtful and argumentative application. CusHiNG, J. Although I am of opinion that this court has the same power that a court of the State of Georgia would possess, to declare the law void, I do not think that the occasion would wai-rant an exer- cise of the power. The right to confiscate and banish, in the case of an offending citizen, must belong to every government. It is not within the judicial power, as created and regulated by the Consti- tution of Georgia, and it naturally, as well as tacitly, belongs to the legislature. By the Couet. Let the judgment be affirmed, with costs. MARBURY V. MADISON. Supreme Court of the United States. 1803. [1 Cranch, 137 ; 1 Curtis's Decisions, 368.] At the last term, namely, December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel, Charles Lee, Esq., late Attorney-General of the United States, severally moved the court for a rule to James Madison, Secre- tary of State of the United States, to show cause why a mandamus should not issue commanding him to cause to be delivefed to them respectively their several commissions as justices of the peace in the 108 MAKBURY V. MADISON. [CHAP. I. District of Columbia, This motion was supported by aflSdavits of the following facts : that notice of this motion had been given to Mr. Madison ; that Mr. Adams, the late President of the United States, nominated the applicants to the Senate for their advice and consent to be appointed justices of the peace of the District of Columbia ; that the Senate advised and consented to the appointments ; that commis- sions in due form were signed by the said President appointing them justices, &c., and that the seal of the United States was in due form affixed to the said commissions by the Secretary of State ; that the applicants have requested M*. Madison to* deliver them their said commissions, who has not complied with that request ; and that their said commissions are withheld from them ; that the applicants have made application to Mr. Madison, as Secretary of State of the United States, at his office, for information whether the commissions were signed and sealed as aforesaid ; that explicit and satisfactory informa- tion has not been given in answer to that inquiry, either by the Secre- tary of State or any officer in the Department of State ; that application has been made to the Secretary of the Senate for a certificate of the nomination of the applicants,, and of the advice and consent of the Senate, who has declined giving such a certificate ; whergupon a rule was laid to show cause on the fourth day of this term. This rule having been duly served, Mr. Lee read the affidavit of Dennis Eamsay, and the printed jour- nals of the Senate of 31st January, 1803, respecting the refusal of the Senate to suffer their secretary to give the information requested. He then called Jacob Wagner and Daniel Brent, who had been sum- moned to attend the court, and who had, as it is understood, declined giving a voluntary affidavit. They objected to being sworn, alleging that they were clerks in the Department of State, and not bound to disclose any facts relating to the business or transactions in the office. The court ordered the witnesses to be sworn, and their answers taken in writing, but informed them that when the questions were asked they might state their objections to answering each particular question, if they had any. Mr. Lincoln, Attorney-General, having been summoned, and now called, objected to answering. He requested that the questions might be put in writing, and that he might afterwards have time to determine whether he would answer. On the one hand he respected the juris- diction of this court, and on the other he felt himself bound to maintain the rights of the executive. He was acting as Secretary of State at the time when this transaction happened. He was of opinion, and his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer, as to any facts which came officially to his knowledge while acting as Secretary of State. The questions being written, were then read and handed to him. SECT. II.] MAKBUET V. MADISON. 109 He repeated the ideas he had before suggested, and said his objections were of two kinds. 1st. He did not think himself bound to disclose his official trans- actions while acting as Secretary of State ; and, 2d. He ought not to be compelled to answer anything which might tend to criminate himself. Mr. Lincoln thought it was going a great way to say that every Secretary of State should at all times be liable to be called upon to appear as a witness in a court of justice, and testify to facts which came to his knowledge officially. He felt himself delicately situated between his duty to this court, and the duty he conceived he owed to an executive department ; and hoped the court would give him time to consider of the subject. The court said that if Mr. Lincoln wished time to consider what answers he should make, they would give him time ; but they had no doubt he ought to answer.-, There was nothing confidential required to be disclosed. If there had been he was not obliged to answer it ; and if he thought that anything was communicated to him in confi- dence he was not bound to disclose it ; nor was he obliged to state any- thing which would criminate himself ; but that the fact whether such commissions had been in the office or not, could not be a confi-^ dential fact ; it is a fact which all the world have a right to know. If he thought any of the questions improper, he might state his objections. Mr. Lincoln then prayed time till the next day to consider of his answers under this opinion of the court. The court granted it, and postponed further consideration of the cause till the next day. At the opening of the court on the next morning, Mr. Lincoln said he had no objection to answering the questions proposed, excepting the last, which he did not think himself obliged to answer fully. The question was, what had been done with the commissions ? He had no hesitation in saying that he did not know that they ever came to the possession of Mr. Madison, nor did he know that they were in the office when Mr. Madison took possession of it. He prayed the opinion of the court whether he was obliged to disclose what had been done with the commissions. The court were of opinion that he was not bound to say what had become of them ; if they never came to the possession of Mr. Madi- son it was immaterial to the present cause what had been done with them by others. Afterwards, on the 24th February, the following opinion of the court was delivered by the Chief Justice. At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, re- quiring the Secretary of State to show cause why a mandamus should not issue, directing him to deliver to William Marbury his commission 110 MARBUKY V. MADISON. [CHAP. I. a,s a justice of the peace for the county of Washington, in the District of Columbia. No cause has been shown, an,d the present motion is for a manda- mus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles on which the .opinion to be giyep by the court is founded. These principles have been, on the side of the applicant, very ably argued at the Bar. In reixdering the opinion of the court, there will be some departure in farm, though not in substariee, from the points stated in that argument.. In the, order in which the court has viewed this subject, the follow- ing questions have been considered and decided. 1st. Has the appliicant a right to the commission he demands? 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy ? 3dly. If they do afford him a remedy, is it a mandamus issuing from this court ? The first object of inquiry is, 1st. Has the applicant a right to the commission he demands? . . . Mr. Marbury, then, since his commission was signed by the Presi- dent and sealed by the Secretary of State, was appointed ; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the la,ws of his country. To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right. This brings us to the second inquiry, whidi is, ' 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy ? . . . It is then the opinion of the court, 1st. That by signing the commission of Mr. Marbury, the Presi- dent of the United States appointed him a justice of peace for the county of Wasliington, in the District of Columbia ; and that the seal of the United States, affixed thereto by the Secretary of State, is con- clusive testimony of the verity of the signature, and of the ccmipletion of the appoiijtment ; and that the appointment conferred on him a legal right to the office for the space of five years. 2dly. That, having this legal title to the office, he has a consequent right to the commission ; a refusal to deliver which is a plain viola- tion of that right, for which the laws of his country afford him a remedy. It remains to be inquired whether, 3dly. He is entitled to the remedy for which Jie applies. This de- pends on, 1st. The nature of the writ applied for ; and, SECT. II.] MARBURY V. MADISON. Ill 2dly. The power of this court. l8t. The nature of the writ, . . . This, then, is a plain case for a maiidaynu?, either to deliver the commission, or a copy of it from the record ; and it oflly remains to be inquu'ed, Whether it can issue from this court. . . . The authoi'ity, therefore, given to the Supreme Court, by the Act establishing the judicial courts of the United States, to issue writs of mandamus to public / oflSoers, appears not to be warranted by the Constitution ; and it be- / comes necessary to inquire whether a jurisdiction so conferred can be exercised. The questioa whether an Act repugnant to the Constitution can be- come the law of the land, is a question deeply interesting to the United States ; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion ; nor can it nor ought it to be frequently repeated. The prin- ciples, therefore, so established, are deemed fundamental. And as tHe authority from which they proceed is supreme, and can seldom act', they are designed to be permanent. This original and supreme will organizes the government, and as- . signs to different departments their respective powers. It may eitheA: stop here, or establish Certain limits not to be transcended by those departments, ^fhe government of the United States is of the latter description. The powers of the legislatui'c are defined and limited ; and that those limits may not be mistaken, or forgotten, the Constitution is writteni To what purpose are powers ILmited, and to what purpose is that limi- tation committed to writing, if these limits may, at any time, be passed by those intended to be restrained ? The distinction between a govern; ment with limited and unlimited powers is abolished, if those limits do, not confine the persons on whom they are imposed, and if acts pro^ hibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative^ Act repugnant to it ; ov, that the legislature may alter the Constitution by an ordinary Act. Between these alternatives there is no middle ground. The Consti- tution is either a su-perior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative Acts, and, like other A.ct8, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative Act contrary to the Constitution is not law ; if the latter part be true, .then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. 112 MARBURY V. MADISON. [CHAP. I. Certainly all those who have framed written constitutions contem- plate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an Act of the Legislature, repugnant to the Constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject. If an Act of the Legislature, repugnant tQ the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law ? This would be to overthrow in fact what was established in theory ; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution ; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. It, then, the courts are to regard the Constitution, and the Consti- tution is superior to any ordinary Act of the Legislature, the Constitu- tion, and not such ordinary Act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Con- stitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an Act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legisla- ture shall do what is expressly forbidden, such Act, notwithstanding ' the express prohibition, is in reality effectual. It weuld be gi^'iDg to ' the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is '■ prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of SECT. II.] MAKBUEY V. MADISON. 113 itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of tlie United States fur- nish additional arguments in favor of its rejection.' The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power, to say that in using it the Constitution should not be looked into ? That a case arising under the Constitution should be decided without examining the instrument under which it arises ? This is too extravagant to be maintained. In some cases, then, the Constitution rnust be looked into by the judges. And if they can open it at all, what part of it are they for- bidden to read or to obey ? There are many other parts of the Constitution which Serve to illus- trate this subject. It is declared that " no tax or duty shall be laid on articles exported from any State." Suppose a duty on the export of cotton, of tobacco^ or of flour ; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the- Constitution, and only see the law ? The Constitution declares " that no bill of attainder or ex post facto, law "shall be passed." If, however,- such a bill should be passed, and a person should be»- prosecuted under it, must the court condemn to death those victims whom the Constitution endeavors to preserve ? " No person," says the Constitution, " shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here the language of the Constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufllcient for conviction, must the constitutional principle yield to the legislative Act? From these, and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their ofHcial character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support ! The oath of offlcey too, imposed by the legislature, is completely demonstrative of the legislative opinbn on this su^iject. It is in these words: "I do solemnly swear that I will administer justice VOL. I. — 8 114 FLETCHER V. PECK. [CHAP. I. without respect to persons, and do equal right to the poor and to the rich ; and that I will faithfully and impartially discharge all the duties incumbent on me as , according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States." Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that Constitution forms no rule for his government — if it is closed upon him, and cannot be inspected by him ? If such be the real state of things, this 15^ worse than solemn mock- ery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in- declaring what shall be the supreme law of the land, the Constitution itself is first mentioned ; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank. Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essen- tial to all written constitutions, that a law repugnant to the Consti- tution is void ; and that courts, as well as other departments, are bound by that instrument. The rule must be discharged. FLETCHER v. PECK. SuPEEME Court of the United States. 1810. [6 Crunch, 87 ; 2 Cttrtis's Decisions, 328.] Error to the Circuit Court of the United States for the District of Massachusetts, in an action of covenant brought by Fletcher against Peck. . . . The plaintiff sued out his writ of error, and the case was twice ar- gued, first by Martin, for the plaintiff in error, and by J. Q. Adams, and B. O. Harper, for the defendant, at February Term, 1809, and again at this term by Martin, for the plaintiff, and by Sarper and Story, for the defendant. . . . March 16, 1810. Marshall, C. J., delivered the opinion of the court as follows : The pleadings being now amended, this cause comes on again to be heard on sundry demurrers, and on a special verdict. This suit was instituted on several covenants contained in a deed made by John''Peck, the defendant in error, conveying to Robert Fletcher, the plaintiff in error, certain lands which were part of a large purchase maq^vby James Gunn and others, in the year 1795, from tiae SECT. 11.] FLETCHER V. PECK. 115 State of Georgia, the contract for which was made iu' the form of a bill passed bj- the legislature of that State. The first count in the declaration set forth a breach in the second covenant contained in the deed. The covenant is, "that the Legisla- ture of the State of Georgia, at the time of passing the Act of Sale aforesaid, had good right to sell, and dispose of the same in manner pointe.d out by the-said Act." The breach assigned isj that the legis- lature had no power to sell.. The plea in bar sets forth the Constitution of the State of Georgia, and avers that the lauds sold bj' the defendant to the plaintiff, were within that State. It then sets forth the granting Act, and avers the power of the legislature to sell and dispose of the prenjises as pointed out bj' the Act. To this plea the -plaintiff below -demurred, and the defendant joined*- in demurrer. - . ' . ' That the Legislature of Georgia, unless restrained by its own Consti- tution, possesses the power of disposing of the unappropriated lands within its own limits, in such manner as its own judgment shall dictate, is a proposition not to be controverted. The only question, then, pre- sented by this demurrer, for the consideration of the court, is this, did the then Constitution of the State of Georgia prohibit the legislature to dispose of the lands, which were the subject of this contract, in the manner stipulated by the contract? The question, whether a law be void for its repugnancy to the Con- stitution, is, at all times, a question of much delicacj', which ought sel- dom, if ever, to be decided in the affirmative, in a doubtful case. The court, when impelled by>dutj' to render such a judgment, would be un- worthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have tran- scended its powers, and its Acts to be considered as void. The oppo- sition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. In this case the court can perceive no such opposition. In the Con- stitution of Georgia, adopted in the year 1789, the court can perceive no restriction on the legislative power, which inhibits the passage of the Act of 1795. They cannot say that, in passing that Act, the legislature has transcended its powers, and violated the Constitution. In overruling the demurrer, therefore, to the first plea, the Circuit Court committed no error. The third covenant is, that all the title which the State of Georgia ever had in the premises had been legally conveyed to John Peck, the grantor. The second count assigns, in substance, as a breach of this covenant, that the original grantees from the State of Georgia promised and assured divers members of the legislature, then sitting in general as- 116 FLETCHER V. PECK. [CHAP. I. semblj', that if the said members would assent to, and vote for, the passing of the Act, and if the said bill should pass, such members should have a share of, and be interested in, all the lands purchased from the said State by virtue of such law. And that divers of the said members, to whom the said promises were made, were undulj" influenced therebj', and, under such influence, did vote for the passing of the said bill ; by reason whereof the said law was a nullity-, &c., and so the title of the State of Georgia did not pass to the said Peck, &c. The plea, to this count, after protesting that the promises it alleges were not made, avers, that until after the ptp-ehase made from the orig- inal grantees by James Greenleaf, under whom the said Peck claims, neither the said James Greenleaf, nor the said Peck, nor any of the mesne vendors between the said Greenleaf and Peck, had any notice or knowledge that anj' such promises or assurances were made by the said original grantees, or either of them, to anj- of the members of the Legis- lature of the State of Georgia. To this plea the plaintifl' demurred generallj-, and the defendant joined in the demurrer. That corruption should find its waj' into the governments of our infant republics, and contaminate tlie very source of legislation, or that impure motives should contribute to the passage of a law, or the formation of a legislative contract, are circumstances most deeply to be deplored. How far a court of justice would, in any case, be competent, on pro- ceedings instituted by the vState itself, to vacate a contract thus formed, and to annul rights acquired under that contract, bj' third persons having no notice of the improper means by which it 4vas obtained, is a question which the court would approach with much circumspection. It maj' well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements, oper- ating on members of the supreme sovereign power of a State, to the formation of a contract by that powei", are examinable in a court of justice. If tlie principle be conceded, that an Act of the supreme sov- ereign power might be declared null b^' a court, in consequence of the means which procured it, still would there be much difliculty in saying to what extent those means must be applied to produce this effect. Must it be direct corruption, or would interest or undue influence of any kind be sufficient? Must the vitiating cause operate on a majoritj-, or on what number of the members? Would the Act be null, whatever might be the wisii of the nation, or would its obligation or nullitj- depend upon the public sentiment? If the majoritj' of the legislature be corrupted, it may well be doubted whether it be within the province of the judiciary to control their con- duct, and, if less than a majority act from impure motiTes, the prin- ciple by which judicial interference would be regulated is not clearly discerned. Whatever difHculties this subject might present, when viewed under aspects of which it maj- be susceptible, this court can perceive none in the particular pleadings now under consideration. SECT. II. J FLETCHEK V. PECK. 117 This is not a bill brought by the State of Georgia to annul the con- tract, nor does it appear to the court, by this count, that the State of Georgia is dissatisfied with the sale that has been made. The case, as made out in the pleadings, is simply this. One individual who holds lands in the State of Georgia, under a deed covenanting that tne title of Georgia was in the grantor, brings an action of covenant upon this deed, and assigns, as a breach, that some of the members of the legisla- ture were induced to vote in favor of the law which constituted the con- tract, by being promised an interest in it, and that therefore the Act is a mere nullity. This solemn question cannot be brought thus collaterally and inci- dentally before the court. It would be indecent in the extreme, upon a private contract between two individuals, to enter into an inquiry re- specting the corruption of the sovereign power of a State. If the title be plainly deduced from a legislative Act, which the legislature might constitutionally pass, if the Act be clothed with all the requisite forms of a law, a court, sitting as a court of law, cannot sustain a suit brought by one individual against another founded on the allegation that the Act is a nullity', in consequence of the impure motives which influenced cer- tain members of the legislature which passed the law. The Circuit Court, therefore, did right in overruling this demurrer. The fourth covenant in the deed is, that the title to the premises has been in no way constitutionally or legally impaired by virtue of anj' sub- sequent Act of any subsequent legislature of the State of Georgia. The third count recites the undue means practised on certain mem- bers of the legislature, as stated in the second count, and then alleges that, in consequence of these practices and of other causes, a subse- quent legislature passed an Act annulling and rescinding the law under which the conveyance to the original grantees was made, declaring that conveyance void, and asserting the title of the State to the lands it con- tained. The count proceeds to recite at large this rescinding Act, and concludes with averring that, by reason of this Act, the title of the said Peck in the premises was constitutionally and legally impaired, and rendered nnll and void. After protesting as before that no such promises were made as stated in this count, the defendant agOjin pleads that himself and the first pur- chaser under the original grantees, and all intermediate holders of the property-, were purchasers without notice. To this plea there is a demurrer and joinder. The importance and the difflcult3' of the questions presented by these pleadings, are deeply felt by the court. The lands in controversy* vested absolutely in James Gunn and oth- ers, the original grantees, bj- the conveyance of the Governor, made in pursuance of an Act of Assembly to which the legislature was fully com- petent. Being thus in full possession of the legal estate, thej-, for a valuable consideration, conveyed portions of the land to those who were willing to purchase. If the original transaction was infected with 118 FLETCHER V. PECK. [CHAP. I. fraud, these purchasers did not participate in it. and had no notice of it. Thej' were innocent. Yet the Legislature of Georgia has involved them in the fate of the first parties to the transaction, and, if the Act be valid, has annihilated their rights also. The Legislature of Georgia was a partj' to this transaction ; and for a part^- to pronounce its own deed invalid, whatever cause may be as- signed for its invalidity, must be considered as a mere act of power which must find its vindication in a train of reasoning not often heard in coiuts of justice. But the real partj-, it is said, are the people, and when their agents are unfaithful, the acts of those agents cease to be obligatory. It is, however, to be recollected that the people can act only by these agents, and that, while within the powers conferred on them, their acts must be considered as the acts of the people. If the agents be corrupt, others ma^' be chosen, and if their contracts be examinable, the com- mon sentiment, as well as common usage of mankind, points out a mode by which this examination maj' be made, and their validity determined. If the Legislature of Georgia was not bound to submit its pretensions to those tribunals which are established for the security of property, and to decide on human rights, if it- might claim to itself the power of judging in its own case, yet there are certain great principles of justice, whose authority is universally' acknowledged, that ought not to be en- tirely disregarded. If the legislature be its own judge in its own case, it would seem equi- table that its decisions should be regulated by those rules which would have regulated the decision of a judicial tribunal. The question was, in its nature, a question of title, and the tribunal which decided it was either acting in the character of a court of justice, and performing a duty usually assigned to a court, or it was exerting a mere act of power in which it was controUejJ only by its own will. If a suit be brought to set aside a conveyance obtained by fraud , and the fraud be clearly proved, the convejance will be set aside, as between the parties ; but the rights of third persons, who are purchasers without notice, for a valuable consideration, cannot be disregarded. Titles, which, according to every legal test, are perfect, are acquired with that confidence which is inspired by the opinion that the purchaser is safe. If there be any concealed defect, arising fi'om the conduct of those who had held the property long before he acquired it, of which he had no notice, that concealed defect cannot be set up against him. He has paid his money for a title good at law ; he is innocent, whatever may be the guilt of others, and equity will not subject him to the penalties attached to that guilt. All titles would be insecure, and the intercourse between man and man would be very seriously obstructed, if this prin- ple be overturned. A Court of Chancery, therefore, had a bill been brought to set aside the conveyance made to James Gunn and others, as being obtained by SECT. II.] FLETCHER V. PECK. 119 improper practices with the legislature, whatever might have been its decision as respected the original grantees, would have been bound, by its own rules, and by the clearest principles of equity, to leave unmolested those who were purchasers, without notice, for a valuable consideration. If the legislature felt itself absolved from those rules of property which are common to all the citizens of the United States, and from those principles of equity which are acknowledged in all our courts, its Act is to be supported b}' its power alone, and the same power may divest any other individual of his lands, if it shall be the will of the legislature so to exert it. It is not intended to speak with disrespect of the Legislature of Georgia, or of its Acts. Far from it. The question is a general question, and is treated as one. For although such powerful objections to a legislative grant, as are alleged against this, may not again exist, j-et the principle, on which alone this rescinding Act is to be supported, may be applied to everj' case to which it shall be the will of anj- legislature to apply it. The principle is this : that a legislature may, by its own Act, divest the vested estate of any man whatever, for reasons which shall, by itself, be deemed sufficient. In this case the legislature may have had ample proof that the origi- nal grant was obtained by practices which can never be too much repro- bated, and which would have justified its abrogation so far as respected those to whom crime was imputable. But the grant, when issued, con- veyed an estate in fee-simple to the grantee, clothed with all the solem- nities which law can bestow. This estate was transfei-able ; and those who purchased parts of it were not stained by that guilt which infected the original transaction. Their case is not distinguishable from the ordinary case of purchasers of a legal estate witliout knowledge of any secret fraud which might have led to the emanation of the original grant. According to the well-known course of equity, their rights could not be aflfected by such fraud. Their situation was the same, their title was the same, with that of every other member of the community who holds land by regular conveyances from the original patentee. Is the power of the legislature competent to the annihilation of such title, and to a resumption of the property thus held? The principle asserted is, that one legislature is competent to repeal any Act which a former legislature was competent to pass ; and that one legislature cannot abridge the powers of a succeeding legislature. The correctness of this principle, so far as respects general legisla- tion, can never be controverted. But if an Act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power. Convej'ances have been made, those convey- ances have vested legal estates, and, if those estates may be seised by the sovereign authority, still, that they originally vested is a fact, and cannot cease to be a fact. When, then, a law is in its nature a contract, when absolute rights 120 FLETCHER W. PECK. [CHAP. I. have vested under that contract, a repeal of the law cannot divest those rights ; and the act of annulling tliem, if legitimate, is rendered so by a power applicable to the case of every individual in the communitj'. It may well be doubted whether the nature of society and of govern- ment does not prescribe some limits to the legislative power ; and if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seised without compensation- To the legislature all legislative power is granted ; but the question, whether the act of transferring tlie property oftan individual to the pub- lic, be in the nature of the legislative power, is well worthy of serious reflection. It is the peculiar province of the legislature to prescribe general rules for the government of society ; the application of those rules to indi- viduals in society would seem to be the duty of other departments. How far the power of giving the law maj- involve every other power, in cases where the Constitution is silent, never has been,' and perhaps never can be, definitely stated. The validity of this rescinding Act, then, might well be doubted, were Georgia a single sovereign power. But Georgia cannot be viewed as a single, unconnected, sovereign power, on whose legislature no other re- strictions are imposed than may be found in its own Constitution. She is a part of a large empire ; she is a member of the American Union ; and that union has a constitution the supremacj- of which all acknowl- edge,, and which imposes limits to the legislatures of the several States, which none claim a right to pass. The Constitution of the United States declares that no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. Does the case now under consideration come within this prohibitory section of the Constitution ? In considering this very interesting question, we immediately ask ourselves what is a contract? Is a grant a contract? A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a part}' binds himself to do, or not to do, a particular thing ; such was the law under which the conveyance was made by the Governor. A contract executed is one in which the object of contract is performed ; and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the purchasers was executed bj' the grant. A contract executed, as well as one which is executorj', contains obligations bind- ing on the parties. A grant, in its own nature, amounts to an extin- guishment of the right of the grantor, and implies a contract not to reassert that right. A party is, therefore, always estopped by his own grant. Since, then, in fact, a grant is a contract executed, the obligation of •which still continues, and since the Constitution uses the general term contract, without distinguishing between those which are executory and SECT, n.] PLETCHER V. PECK. 121 those which are executed, it must be construed to comprehend the lat- ter as well as the former. A law annulling conveyances between indi- viduals, and declaring that the grantors should stand seised of their former estates, notwithstanding those grants, would be as repugnant to the Constitution as a law discharging the vendors of property from the obligation of executing their contracts by conveyances. It would be strange if a contract to convey was secured by the Constitution, while an absolute conveyance remained unprotected. If, under a fair construction of the Constitution, grants are compre- hended under the term contracts, is a grant from the State excluded from the operation of the provision ? Is the clause to be considered as inhibiting the State from impairing the obligation of contracts between two individuals, but as excluding from that inhibition contracts made with itself? The words themselves contain no such distinction. They are general, and are applicable to contracts of every description. If contracts made with the State are to be exempted from their operation, the exception must arise from the character of the contracting party, not from the words which are employed. Whatever respect might have been felt for the State sovereignties, it is not to be disguised that the framers of the Constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment ; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the eflfects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the States are obviously founded in this sentiment ; and the Constitu- tion of the United States contains what may be deemed a bill of rights for the people of each State. No State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. A bill of attainder may affect the life of an individual, or may confis- cate his property, or may do both. In this form the power of the legislature over the lives and fortunes of individuals is expressly restrained. What motive, then, for implj'ing, in words which import a general prohibition to impair the obligation of contracts, an exception in favor of the right to impair the obligation of those contracts into which the State may enter? The State legislatures can pass no ex post facto law. An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Such a law may inflict penal- ties on the person, or may inflict pecuniary penalties which swell the public treasury. The legislature is then prohibited from passing a law by which a man's estate, or any part of it, shall be seised for a crime which was not declared, by some previous law, to render him liable to that punishment. Why, then, should violence be done to the natural meaning of words for the purpose of leaving to the legislature the power 122 tLETCHEK V. PECK. [CHAP. L of seising, for public use, the estate of an individual in the form of a law annulling the title by which he holds that estate? The court can perceive no sufficient grounds for making that distinction. This re- scinding Act would have the effect of an ex post facto law. It forfeits the estate of Fletcher for a crime not committed bj' himself, but by those from whom he purchased. This cannot be effected in the form of an ex post facto law, or bill of attainder; why, then, is it allowable in the form of a law annulling the original grant? The argument in favor of presuming an intention to except a case, not excepted by the words of the Constitution, is susceptible of some illustration from a principle originally engrafted in that instrument, though no longer a part of it. The Constitution, as passed, gave the courts of the United States jurisdiction in suits brought against indi- vidual States. A State, then, which violated its own contract, was suable in the courts of the United States for that violation. Would it have been a defence in such a suit to saj' that the State had passed a law absolving itself from the contract? It is scarcelj' to be conceived that such a defence could be set up. And yet, if a State is neither re- strained by the general principles of our political institutions, nor by the words of the Constitution, from impairing the obligation of its own contracts, such a defence would be a valid one. This feature is no longer found in the Constitution ; but it aids in the construction of those clauses with which it was originally associated. It is, then, the unanimous opinion of the court, that, in this case, the estate having passed into the hands of a purchaser for a valuable consideration, without notice, the State of Georgia was restrained, either hy general principles which are common to our free institutions, or bj- the particular provisions of the Constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void. In overruling the demurrer to the third plea, therefore, there is no error. . . . The question, whether the vacant lands within the United States became a joint property, or belonged to the separate States, was a mo- mentous question, which, at one time, threatened to shake the Ameri- can confederacy to its foundation. This important and dangerous contest has been compromised, and the compromise is not now to be disturbed. It is the opinion of the court, that the particular land stated in the declaration appears, from this special verdict, to lie within the State of Georgia, and that the State of Georgia had power to grant it. Some difficulty was producefl by the language of the covenant, and of the pleadings. It was doubted whether a State can be seised in fee of lands subject to the Indian title, and whether a decision that they were seised in fee might not be construed to amount to a decision that their grantee might maintain an ejectment for them, notwithstanding that title. SECT. II.] MARTIN V. HUNTER'S LESSEE. 123 The majority of the court is of opinion that the nature of the Indian title, which is certainly to be respected by all courts, until it be legiti- mately extinguished, is not such as to be absolutely repugnant to seisin in fee on the part of the State. Judgment affirmed, with costs. [The opinion of Johnson, J., is omitted.] MARTIN, Heir at Law and Devisee of Fairfax, v. HUNTER'S Supreme Court of the United States. 1816. [1 Wheaton, 304 ; 3 Curtis's Decisions, 562.] This case is fully stated in the opinion of the court. tTones, for the plaintiff in error. Tucker and Dexter, for the defendant. Story, J., delivered the opinion of the court. This is a writ of error from the Court of Appeals of Virginia, founded upon the refusal of that»court to obey the mandate of this court, re- quiring the judgment rendered in this very cause, at February Term, 1813', to be carried into due execution. The following is the judgment of the Court of Appeals rendered on the mandate : " The court is unani- mousl}' of opinion, that the appellate power of the Supreme Court of the United States does not extend to this court, under a sound con- struction of the Constitution of the United States ; that so much of the 25tb section of the Act of Congress to establish the Judicial Courts of the United States, as extends the appellate jurisdiction of the Supreme Court to this court, is not in pursuance of the Constitution of the United States ; that the writ of error in this cause was improvidently allowed under the authority of that Act ; that the proceedings thereon in the Supreme Court were coram non judice, in relation to this court, and that obedience to its mandate be declined by the court." . . . Before proceeding to the principal questions, it may not be unfit to dispose of some preliminary considerations which have grown out of the arguments at the Bar. The Constitution of the United States was ordained and established, not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by "the people of the United States." There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary ; to extend or restrain these powers accord- ing to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can thei'e be, that the people had a right to prohibit to the States the exercise of any powers which were, 124 MAETIU 1). HUNTEK'S LESSEE. [CHAP. I. iu tbeir jadgment, incompatible with the objects of the general compact ; to malje the powers of the State governments, in given cases, subor- dinate to tliose of the nation, or to reserve to themselves those sov- ereign authorities which they might not choose to delegate to either. The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already- existing in State institutions, for the powers of the States depend upon their own consti- tutions ; and the people of everj' State had the right to modify and restrain them, according to their own views of policy or principle. On the other hand, it is perfectly clear that the sonrereign powers vested in the State governments, by their respective constitutions, remained un- altered and unimpaired, except so far as thej' were granted to the government of the United States. These deductions do not rest upon general reasoning, plain and obvi- ous as they seem to be. They have been positivelj- recognized b}' one of the articles in amendment of the Constitution, which declares that " the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respec- tivelj', or to the people." The government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, oj- given by necessarj- im- plication. On the other hand, this instrument, lilie every other grant, is to have a reasonable construction, according to the import of its terms ; and where a power is expressly given iu general terms, it is not to be restrained to particular cases, unless that construction grows out of the context expressly, or bj- necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged. The Constitution, unavoidably, deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difHcult, if not an imprac- ticable, task. The instrument was not intended to provide merelj*> for the exigencies of a few 3-ears, but was to endure through a long lapse, of ages, the events of which were loclted up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter ; and restrictions and specifications, which at the present might seem salutary-, might, in the end, prove the overthrow of the system itself., Hence its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require. With these principles in view, principles in respect to which no dif- ference of opinion ought to be indulged, let ns now proceed to the inter- SECT. II.] MARTIN V. HUNTER'S LESSEE. 125 pretation of the Constitution, so far as regards the great points in controversj'. The third article of the Constitution is that which must principally attract our attention. . . . This leads us to the consideration of the great question as to the nature and extent of the appellate jurisdiction of the United States. We have already seen that appellate jurisdiction is given by the Consti- tution to the Supreme Court In all cases where it has not original juris- diction, subject, however, to such exceptions and regulations as Con- gress may prescribe. It is, therefore, capable of embracing every case enumerated in the Constitution, which is not exclusively to be decided by way of original jurisdiction. But the exercise of appellate jurisdic- tion is far from being limited by the terms of the Constitution to the Supreme Court. There can be no doubt that Congress may create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdiction. The judicial power is delegated by the Constitution in the most general terms, and may, therefore, be exercised by Congress under every variety of form, of appellate or original jurisdiction. Awd as there is nothing in the Constitution which restrains or limits this power, it must, therefore, in all other cases, subsist in the utmost latitude of which, in its own nature, it is susceptible. ^ As, then, by the terms of the Constitution, the appellate jurisdiction is not limited as to the Supreme Court, and as ta this court it may be exercised in all other cases than those of which it has original cogni- zance, what is there to restrain its exercise over State tribunals in the enumerated cases? The appellate power is not limited by the terms of the third article to any particular courts. The words are, " the judi- cial power (which includes appellate power) shall extend to all cases," &c., and "in all other cases before mentioned the Supreme Court shall have appellate jurisdiction." It is the case, then, and not the court, that gives the jurisdiction. If the judicial power extends to the case, it will be in vain to search in the letter of the Constitution for any qualification as to the tribunal whei'e it depends. It is incumbent, then, upon those who assert such a qualification to show its existence by necessary implication. If the text be clear and distinct, no restriction upon its plain and obvious import ought to be admitted, unless the inference be irresistible. If the Constitution meant to limit the appellate jurisdiction to cases pending in the courts of the United States, it would necessarily follow that the jurisdiction of these courts would, in all the cases enumerated in the Constitution, be exclusive of State tribunals. How otherwise could the jurisdiction extend to all cases arising under the Constitution, laws, and treaties of the United States, or to all cases of admiralty and maritime jurisdiction ? If some of these cases might be entertained by State tribunals, and no appellate jurisdiction as to them should exist, then the appellate power would not extend to all, but to some, cases. If State tribunals might exercise concui'rent jurisdiction over all or 126 MAKTIN V. hunter's LESSEE. [CHAP. I. some of the other classes of cases in the Constitution without control, then the appellate jurisdiction of the United States, might, as to such cases, have no real existence, contrary to the manifest intent of the Constitution. Under such circumstances, to give effect to the judicial power, it must be construed to be exclusive ; and this not only when the casus foederis should arise directly, but when it should arise, inci- dentally, in cases pending in State courts. This construction would abridge the jurisdiction of such court far rhore than has been ever con- templated in anj- Act of Congress. On the other hand, if, as has been contended, a discretion be vested in Congress to establish, or not to establish, inferior courts at their own pleasure, and Congress should not establish such courts, the appellate jurisdiction of the Supreme Court would have nothing -to act upon, unless it could act upon cases pending in the State courts. Under such circumstances, it must be held that the appellate power would ex- tend to State courts ; for the Constitution is peremptory that it shall extend -to certain enumei-ated cases, which cases could exist in no other courts. Any other construction, upon this supposition, would involve this strange contradiction, that a ,discretionarj' power vested in Con- gress, and which they might rightfully omit to exercise, would defeat the absolute injunctions of the Constitution in relation to the whole appellate power. But it is plain that the framers of the Constitution did contemplate that cases within the judicial cognizance of the United States not only might but would arise in the State courts, in the exercise of their ordi- nary jurisdiction. With this view the sixth article declares, that " this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority' of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, an^-- thing in the Constitution, or laws of any State to the contrary notwith- standing." It is obvious that this obligation is imperative upon the State judges in their official, and not merelj- in their private, capacities. From the very nature of their judicial duties they would be called upon to pronounce the law applicable to the case in judgment. Thej* were not to decide merely according to the laws or Constitution of the State, but according to the Constitution, laws, and treaties of the United States, " the supreme law of the land." A moment's consideration will show us the necessitj- and propriety, of this provision in cases where the jurisdiction of the State courts is unquestionable. Suppose a contract for the payment of money is made between citizens of the same State, and performance thereof is sought in the courts of that State ; no person can doubt that the jurisdiction completel3' and exclusivelj' attaches, in the first instance, to such courts. Suppose, at the trial, the defendant sets up in his defence a tender under a State law, making paper money a good tender, or a State law, im- pairing the obligation of such contract, which law, if binding, would SECT. II.] MARTIN V. HUNTER'S LESSEE. 127 defeat the suit. The Constitution of the United States has declared that no State shall make an^-thing but gold or silver coin a tender in payment of debts, or pass a law impairing the obligation of contracts. If Congress shall not have passed a law providing for the removal of such a suit to the courts of the United States, must not the State court proceed to hear and determine it? Can a mere plea in defence be of itself a bar to further proceedings, so as to prohibit an inquiry into its truth or legal propriety, when no other tribunal exists to whom judicial cognizance of such cases is confided? Suppose an indictment for a crime in a State court, and the defendant should allege in his defence that the crime was created by an ex post facto Act of the State, must not the State court, in the exercise of a jurisdiction which has already rightfully attached, have a right to pronounce on the validity and suffi- ciency of the defence? It would be extremely difficult, upon any legal principles, to give a negative answer to these inquiries. Innumerable instances of the same sort might be stated in illustration of the position ; and unless the State courts could sustain jurisdiction in such cases, this clause of the sixth article would be without meaning or ettect, and pub- lic mischiefs, of a most enormous magnitude, would inevitably ensue. It must, therefore, be conceded that the Constitution not only con- templated, but meant to provide for cases within the scope of the judi- cial power of the United States, which might yet depend before State tribunals- It was foreseen that in the exercise of their ordinary jurisdic- tion, State courts would incidentally take cognizance of cases arising under the Constitution, the laws, and treaties of the United States. Yet to all these cases the judicial power, by the very terms of the Consti- tution, is to extend. It cannot extend bj' original jurisdiction if that was already rightfully and exclusively attached in the State courts, which (as has been already shown) may occur ; it must therefore extend by appellate jurisdiction, or not at all. It would seem to follow that the appellate power of the United States must, in such cases, extend to State tribunals ; and if in such cases, there is no reason why it should not equally attach upon all others within the purview of the Consti- tution. It has been argued that such an appellate jurisdiction over ■ State courts is inconsistent with the genius of our governments, and the spirit of the Constitution. That the latter was never designed to act upon State sovereignties, but only upon the people, and that, if the power exists, it will materially impair the sovereignty of the States, and the independence of their courts. We cannot yield to the force of this reasoning; it assumes principles which we cannot admit, and draws conclusions to which we do not yield our assent. It is a mistake that the Constitution was not designed to operate upon States, in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the States in some of the highest branches of their prerogatives. The tenth section of the first article contains a long list of disabilities and prohibitions imposed upon 128 HAETIS V. hunter's LESSEE. [CHAP. I. the States. Surelj', when such, essential portions of State sovereignty are taken awaj', or prohibited to be exercised, it cannot be correctly asserted that the Constitution does not act upon the States. The lan- guage of the Constitution is also imperative upon the States, as to the performance of many duties. It is imperative upon the State legisla- tures to make laws prescribing the time, places, and manner of holding elections for Senators and representatives, and for electors of President and Vice-President. And in these, as well as some other cases. Con- gress have a right to revise, amend, or supersede the laws which may be passed by State legislatures. When, therefore, the States are stripped of some of the highest attributes of sovereignty, and the same are given to the United States \ when the legislatures of the States are, in some respects, under the control of Congress, and in everj' case are, under the Constitution, bound bj- the paramount authority of the United States ; it is certainly difficult to support the argument that the appel- late power over the decisions of State courts is conti-ary to the genius of our institutions. The courts of the United States can, without ques. tion, revise the proceedings of the executive and legislative authorities of the States, and if they are found to be contrary to the Constitution,' may declare them to be of no legal validity. Surely, the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power. Nor can such a riglit be deemed to impair the independence of State judges. It is assuming the very ground in eontroversj* to assert that they possess an absolute independence of the United States. In respect to the poTrers granted to the United States, thej' are not independent ; they are expressly bound to obedience bj' the let- ter of the Constitution ; and if they should unintentionally transcend their authority, or misconstrue the Constitution, there is no more reason for giving their judgments an absolute and irresistible force, than for giving it to the acts of the other co-ordinate departments of State sovereignty. The argument urged from the possibiIit3' of the abuse of the revising power, is equallj- unsatisfactory. It is alwaj's a doubtful course, to argue against the use or existence of a power, from the possibility of its abuse. It is still more difficult, by sUch an argument, to engraft upon a general power, a restriction which is not to be found in the terms in which it is given. From the very nature of things, the absolute right of decision, in the last resort, must rest somewhere — wherever it maj* be vested it is susceptihle of abuse. In aU questions of jurisdiction the inferior, or appellate court must pronounce the final judgment ; and common-sense, as well as legal reasoning, has conferred it upon the latter. It has been further argued against the existence of this appellate power, that it would form a novelty in our judicial institntions. This is certainly a mistake. In the articles of confederation, an instrument framed with infinitely more deference to' State riglils. and State jeal- SECT, n.] MAETIN V. HUNTER'S LESSEE. 129 ousies, a power was given to Congress, to establish " courts for revising and determining, finall}-, appeals in all cases of captures." It is remark- able, that no power was given to entertain original jurisdiction in such cases ; and, consequentlj-, the appellate power (although not so ex- pressed in terms) was altogether to be exercised in revising the deci- sions of State tribunals. This was, undoubtedly, so far a surrender of State sovereignty ; but it never was supposed to be a power fraught with public danger, or destructive of the independence of State judges. On the contrary, it was supposed to be a power indispensable to the public safety, inasmuch as our national rights might otherwise be com- promitted, and our national peace be endangered. Under the present Constitution the prize jurisdiction is confined to the courts of the United States ; and a power to revise the decisions of State courts, if they should assert jurisdiction over prize causes, cannot be less im- portant, or less useful, than it was under the confederation. In this connection, we are led again to the construction of the words of the Constitution, " the judicial power shall extend," &c. If, as has been contended at the Bar, the term " extend" have a relative signifi- cation, and mean to widen an existing power, it will then follow, that, as the confederation gave an appellate power over State tribunals, the. Constitution enlarged or widened that appellate power to all the other cases in which jurisdiction is given to the courts of the United States. It is not presumed that the learned counsel would choose to -adopt such a conclusion. It is further argued, that no great public mischief can result from a construction which shall limit the appellate power of the United States to cases in their own courts : first, because State judges are bound by an oath to support the Constitution of the United States, and must be presumed to be men of learning and integrit}' ; and, secondly, because Congress must have an unquestionable right to remove all cases witliin the scope of the judicial power, from the State courts to the courts of the United States, at any time before final judgment, though not after final judgment. As to the first reason — ■ admitting that the judges of the State courts are, and always will be, of as much learning, integritj-, and wisdom, as those of the courts of the United States (which we very cheerfuUj' admit), it does not aid the argument. It is manifest that the Constitution has proceeded upon a theorj- of its own, and given or with- held powers according to the judgment of the American people, by whom it was adopted. We can only construe its powers, and cannot inquire into the policy or principles which induced the grant of them. The Constitution has presumed (whether rightlj' or wronglj' we do not inquire) that State attachments, State prejudices, State jealousies, and State interests, might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice. Hence, in controversies between States ; between citizens of different States ; between citizens claiming grants under different States ; between a State and its citizens, or foreigners, and between citizens and foreigners, VOL. I. — 9 130 MAKTIN V. hunter's LESSEE. [CHAP. I. it enables the parties, under the authority of Congress, to have the controversies heard, tried, and determined before the national tribunals. No other reason than that which has been stated can be assigned, ■why some, at least, of those cases should not have been left to the cognizance of the State courts. In respect to the other enumer- ated cases — the cases arising under the Constitution, laws, and trea- ties of the United States, eases affecting ambassadors and other public ministers, and cases of admiralty and maritime jurisdiction — reasons of a higlier and more extensive nature, touching the safetj', peace, and sovereignty of the nation, might well justifj- a grant of exclusive jurisdiction. This is not all. A motive of another kind, perfectl3- compatible with the most sincere respect for State tribunals, might induce the grant of appellate power over their decisions. That motive is the importance, and even necessitj- of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the Constitution. Judges of equal learning and integrity, in different States, might differ- ently interpret a statute, or a treaty of the United States, or even the Constitution itself. If there were no revising authority' to control these jarring and discordant judgments, and harmonize them into, uniformity, the laws, the treaties, and the Constitution of the United States would be different in different States, and might perhaps never have precisely the same construction, obligation, or eflicacj', in an^' two States. The public mischiefs that would attend such a state of things would be truly deplorable ; and it cannot be believed that they could have escaped the enlightened convention which formed the Constitution. What, indeed, might then have been onlj- i)rophec3- has now become fact ; and the appellate jurisdiction must continue to be the only adequate reinedj' for such evils. There is an additional consideration, which is entitled to great weight. The Constitution of the United States was designed for the common and equal benefit of all the people of the United States. The judicial power was granted for the same benign and salutarj- purposes. It was not to be exercised exclusively for the benefit of parties who might be plaintiffs, and would elect the national forum, but also for the protection of de- fendants who might be entitled to trj' their rights, or assert their privi- leges, before the same forum. Yet, if the construction contended for be correct, it will follow, that as the plaintiff va&y always elect the State court, the defendant may be deprived of all the security which the Con- stitution intended in aid of his rights. Such a state of things can, in no respect, be considered as giving equal rights. To obviate this difl3- culty, we are referred to the power which it is admitted Congress possess to remove suits from State courts to the national courts ; and this forms the second ground upon which the argument we are consider- ing has been attempted to be sustained. This power of removal is not to be found in express terms in any part of the Constitution ; if it be given, it is only given "by implication, SECT. IL] martin V. HUNTKE'S LESSEE 131 as a power necessary and proper to carry into effect some express power. The power of removal Is certainly not, in strictness of lan- guage ; it presupposes an exercise of original jurisdiction to have attached elsewhere. The existence of this power of removal is fa- miliar in courts acting according to the course of the common law in criminal as well as civil cases, and it is exercised before as well as after judgment. But this is alwaj's deemed in both cases an exercise of, appellate, and not of original jurisdiction. If, then, the right of removal be included in the appellate jurisdiction, it is only because it is one mode of exercising that power, and as Congress is not limited by the Constitution to any particular mode, or time of exercising it, it may authorize a removal either before or after judgment. The time, the process, and the manner, must be subject to its absolute legislative con- trol. A writ of error is, indeed, but a process which removes the record of one court to the possession of another court, and enables the latter to inspect the proceedings, and give such judgment as its own opinion of the law and justice of the case may warrant. There is noth- ing in the nature of the process which forbids it from being applied, by the legislature, to interlocutory as well as final judgments. And if the right of removal from State courts exists before judgment, because it is included in the appellate power, it must, for the same reason, exist after judgment. And if the appellate power by the Constitution does not include cases pending in State courts, the right of removal, which is but a mode of exercising that power, cannot be applied to them. Precisely the same objections, therefore, exist as to the right of re- moval before judgment, as after, and both must stand or fall together. Nor, indeed, would the force of the arguments on either side materially vary, if the right of removal were an exercise of original jurisdiction. It would equally trench upon the jurisdiction and independence of State tribunals. The remedy, too, of removal of suits would be qtterly inadequate to the purposes of the Constitution, if it could act only on the parties, and not upon the State courts. In respect to criminal prosecutions, the difficulty seems admitted to be insurmountable ; and, in respect to civil suits, there would, in manj' cases, be rights witliout corresponding remedies. If State courts should deny the constitutionality of the authority to remove suits from their cognizance, in what manner could they be compelled to relinquish the jurisdiction? In respect to criminal cases, there would at once be an end of all control, and the State deci- sions would be paramount to the Constitution ; and though in civil suits the courts of the United States might act upon the parties, yet the State courts might act in the same Yis.y ; and this conflict of jurisdictions would not only jeopardize private rights, but bring into imminent peril the public interests. On the whole, the court are of opinion, that the appellate power of the United States does extend to cases pending in the State courts ; and that the 25th section of the Judiciary Act, which authorizes the 132 MARTIN V. hunter's LESSEE. [CHAF. I. exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and spirit of the Constitution. We find no clause in tliat instrument which limits this power ; and we dare not in- terpose a limitation where the people liave not been disposed to create one. Strong as this conclusion stands upon the general language of the Constitution, it may still derive support from other sources. It is an historical fact, that this exposition of the Constitution, extending jts appellate power to State courts, was, previous to its adoption, uni- formly and publicly avowed by its friends, asd admitted bj' its enemies, as the basis of their respective reasonings, both in and out of the State conventions. It is an historical fact, that at the time when the Judi- ciary Act was submitted to the deliberations of the first Congress, com- posed, as it was, not only of men of great learning and ability, but of men who had acted a principal part in framing, supporting, or opposing that Constitution, the same exposition was explicitly declared and ad- mitted \)\ the friends and bj' the opponents of that sj'Stem^ It Is an historical fact, that the Supreme Court of the United States have, from time to time, sustained this appellate jurisdiction in a great variety of cases, brought from the tribunals of many of the most important States in the Union, and that no State tribunal has ever breathed a judicial doubt on the subject, or declined to obey the mandate of the Supreme Court, until the present occasion. This weight of contemporaneous exposition by all parties, this acquiescence of enlightened State courts, and these judicial decisions of the Supreme Court through so long a period, do, as we think, place the doctrine upon a foundation of author- ity which' cannot be shaken, without delivering over the subject to per- petual and irremediable doubts. ... It is the opinion of the whole court, that the judgment of the Court of Appeals of Virginia, rendered on the mandate in this cause, be reversed, and the judgment of the District Court, held at Winchester, be, and the same is hereby affirmed. [The concurring opinion of Johnson, J., is omitted.] ' ' The same point was enforced in 1821, on a writ of error to a Virginia conrt in a criminal case. Cohens t. Va. 6 "Wheat. 264 (1821). It was also elaborately consid- ered. and decided in Ableman t. Booth, 21 How. 506 (1858). — Ed. SECT. II.j EAKIN V. BAUB. 133 EAKIN V. RAUB. Supreme Court op PKNNSYLVAmi. 1825. [12 S. 4r R- 330.] Writ of error to the Court of Common Pleas of Northampton County, in an action of ejectment brought by James Eakin and James and Ann Simpson, against Daniel Raub, Edmund Porter, Samuel Sit- greaves, Hugh Ross, John Lippens, and John Ross, to recover a moiety of certain lots in the borough of Easton. . . . [The question was on the operation of two statutes of limitation. The judgment below was reversed by the majority of the court (Tilghman, C. J. and Duncan, J.) on the ground that, "The Act of the 11th of March, 1815, is not to be construed so as to form an immediate bar, by retrospection, to the claims of persons beyond sea, who had been out of possession twenty- one years prior to the passing of the Act ; but such persons were allowed fifteen years from the 11th of March, 1815, for bringing their actions according to the provisions of the 3d section of the Act of Limitations of the 26th of March, 1785." Mr. Justice Gibson, in a dissenting opinion, adopted a different construction of the statute.] Barnes, for the plaintiffs in error. Scott and Binney, for the defend- ants in error. Gibson, J. . . . But it is said, that without it, the latter Act would be unconstitutional; and, instead of controverting this, I will avail mj'self of it to express an bpinion which I have deliberate!}' formed, on the abstract right of the judiciarj- to declare an unconstitu- tional Act of the Legislature void. It seems to me there is a plain difference, hitherto unnoticed, between Acts that are repugnant to the Constitution of the particular State, and Acts that are repugnant to the Constitution of the United States ; my opinion being, that the judiciary is bound to execute the former, but not the latter. I shall hereafter attempt to explain this difference, by pointing out the particular provisions in the Constitution of the United States on which it depends. I am aware, that a right to declare all unconstitutional Acts void, without distinction as to either Constitu- tion, is generally held as a professional dogma ; but, I apprehend, rather as a matter of faith than of reason. I admit tliat I once embraced the same doctrine, but without examination, and I shall therefore state the arguments that impelled me to abandon it, with great respect for those by whom it is still maintained. But I may premise, that it is not a little remarkable, that although the right in question has all along been claimed by the judiciary, no judge has ventured to discuss it, except Chief Justice Marshall (in Marhury v. Madison, 1 Cranch, 176), and if the argument of a jurist so distinguished for the strength of his ratiocinative powers be found inconclusive, it may fairly be set down to the weakness of the position which he attempts to defend. Si Per- 134 EAKIN V. EAUB. [CHAP. I. gama dextra defendi potuit, etiam hac defensa fuisset. In saying this, I do not overlooli the opinion of Judge Patterson, in Vanhorne v. Dorrance, 2 Dall. 307, which abounds with beautiful figures in illus- tration of his doctrine ; but, without intending disrespect, I submit that metaphorical illustration is one thing and argument another. Now, in questions of this sort, precedents ought to go for absolutely nothing. The Constitution is a collection of fundamental lawsj not to be departed from in practice nor altered by judicial decision, and in the construction of it, nothing would be so alarming as the doctrine of communis error, which offers a ready justification for every u'^urpation that has not been resisted in limine. Instead, therefore, of resting on the fact, that the right in questiop has universally been assumed bj' the American courts, the judge who asserts it ought to be prepared to maintain it on the principles of the Constitution. I begin, then, hx observing that in this countr3-, the powers of the judiciary are divisible into those that are political and those that are purel}' civil. Everj' power hy which one organ of the government is enabled to control another, or to exert an influence over its Acts, is a political power. The political powers of the judiciary are extraordinary and adventitious ; such, for instance, as are derived from certain pecu- liar provisions in the Constitution of the United States, of which here- after : and thej- are derived, bj- direct grant, from the common fountain of all political power. On the other hand, its civil are its ordinary and appropriate powers ; being part of its essence, and existing inde- pendently- of any supposed grant in the Constitution. But where the government exists by virtue of a written constitution, the judiciary- does not necessarily derive, from that circumstance, anj- other than its ordi- narj- and appropriate powers. Our judiciary is constructed on the principles of the common law, which enters so essentially into the com- position of our social institutions as to be inseparable from them, and to be, in fact, the basis of the whole scheme of our civil and political libertj'. In adopting anj- organ or instrument of the common law, we take it with just such powers and capacities as were incident to it at the common law, except where these are expressly, or b^- necessary implication, abridged or enlarged in the Act of adoption ; and, that such Act is a written instrument, cannot var3- its consequences or con- struction. In the absence of special provision to the contrary, sheriffs, justices of the peace, and other officers whose offices are established in the Constitution, exercise no other powers here^ than what similar officers do in England ; and trial by jury would have been according to the course of the common law, without any declaration to that eflTect in the Constitution. Now, what are the powers of the judiciary at the common law? They are those that necessarily arise out of its imme- diate business ; and they are therefore commensurate only with the judicial execution of the municipal law, or, in other words, with the administration of distributive justice, without extending to anything of a political oast whatever. Dr. Paley, as able a man as ever wrote SECT. II.] EAEIN 11. EAUB. 135 on those subjects on which he professed to treat, seems to have con- sidered the judiciarj' as a part of the executive, and judging from its essence, subordinate to the legislature, which he viewed as the deposi- tory of the whole sovereignty of the State. With us, although the legislature be the depository of only so much of the sovereignty as the people have thought iit to impart, it is nevertheless sovereign within the limit of its powers, and may relatively claim the same pre-eminence here that it may claim elsewhere. It will be conceded, then, that the ordinary and essential powers of the judit-iary do not extend to the annulling of an Act of the Legislature. Nor can the inference to be drawn from this, be evaded by saying that in England the Constitution, resting in principles consecrated by time, and not in an actual written compact, and being subject to alteration by the very Act of the Legisla- ture," there is consequently no separate and distinct criterion by which the question of constitutionality may be determined; for it does not follow, that because we have such a criterion, the application of it be- longs to the judiciary. I take it, therefore, that the power in question does not necessarily arise from the judiciary being established by a written constitution, but that this organ can claim, on account of that circumstance, no powers that do not belong to it at the common law ; and that, whatever may have been the cause of the limitation of its juris- diction originally, it can exercise no power of supervision over the legislature, without producing a direct authorit}' for it in the Constitu- tion, either in terms or b^^ irresistible implication from the nature of the government : without which the power must be considered as re- served, along with the other ungranted portions of the sovereignty for the immediate use of the people. The Constitution of Pennsylvania contains no express grant of polit- ical powers to the judiciary. But, to establish a grant by implication, the Constitution is said to be a law of superior obligation ; and, con- sequently, that if it were to come into collision with an Act of the Legislature, the latter would have to give waj'. This is conce'ded. But it is a fallacy, to suppose that they can come into collision, before the judiciary. What is a constitution? It is an Act of extraordinary legislation, by which the people establish the structure and mechanism of their government ; and in which thej- prescribe fundamental rules to regulate the motion of the several parts. What is a statute? It is an Act of ordinary legislation, by the appropriate organ of the govern- ment ; the provisions of which are to be executed by the executive or judiciarj', or by ofHcers subordinate to them. The Constitution, then, contains no practical rules for the administration of distributive justice, with which alone the judiciary* has to do ; these being furnished in acts of ordinary legislation, by that organ of the government, which, in this respect, is exclusively the representative of the people ; and it is generallj' true, that the provisions of a constitution are to be carried into effect immediately by the legislature, and only mediately, if at all, by the judiciary. In what respect is the Constitution of Pennsylvania 136 EAKIN V. KAUB. [CHAP. I. inconsistent with this principle? Only, perhaps, in one particular pro- vision, to regulate the style of process, and establish an appropriate form of conclusion in criminal prosecutions : in this alone the Consti- tution furnishes a rule for the judiciary, and this the legislature 'cannot alter, because it cannot alter the Constitution. In all other cases, if the Act of Assembly supposed to be unconstitutional, were laid out of tlie question, there would remain no rule to determine the point in con- troversy in the cause, but the statute or common law, as it existed before the Act of Assembly was passed ; and the Constitution and Act of Assembly therefore do not furnish conflicting rules applicable to the point before the court ; nor is it at all necessary, that the one or the other of them should give way. The Constitution and the right of the legislature to pass the Act, may be in collision. But is that a legitimate subject for judicial determina- tion? If it be, the judiciary must be a peculiar organ, to revise the proceedings of the legislature, and to correct its mistakes ; and in what part of the Constitution are we to look for this proud pre-eminence? Viewing the matter in the opposite direction, what would be thought of an Act of Assemblj' in which it should be declared that the Supreme Court had, in a particular case, put a wrong construction on the Con- stitution of the United States, and that the judgment should therefore be reversed? It would doubtless be thought a usurpation of judicial power. But it is bj- no means clear, that to declare a law void which has been enacted according to the forms prescribed in the Constitution, is not a usurpation of legislative power. It is an act of sovereignty ; and sovereignty and legislative power are said by Sir William Black- stone to be convertible terms. It is the business of the judiciary to interpret the laws, not scan the authority of the lawgiver ; and without the latter, it cannot take cognizance of a collision between a law and the Constitution. So that to afHrm that the judiciary has a right to judge of the existence of such collision, is to take for granted the very thing to be proved. And, that a verj^ cogent argument may be made in this way, I am not disposed to deny ; for no conclusions are so strong as those that are drawn from the petitio principii. But it has been said to be emphatically the business of the judiciary, to ascertain and pronounce what the law is ; and that this necessarily involves a consideration of the Constitution. It does so : but how far? If the judiciary will inquire into anything beside the form of enact- ment, where shall it stop ? There must be some point of limitation to such an inquiry ; for no one will pretend, that a judge would be justifi- able in calling for the election returns, or scrutinizing the qualifications of those who composed the legislature. It is next supposed, that as the members of the legislature have no inherent right of legislation, but derive their authority from the people, no law can be valid where authority to pass it, is either simply not given or positively withheld : thus treating the members as the agents of the people, and the Constitution as a letter of attornej' containing SECT. II.] EAKIN V. EAUB. 137 their authority and bounding their sphere of action, and the conse- quence deduced being, that acts not warranted by the Constitution are not the acts of the people, but of those that do them ; and that they are therefore ipso facto void. The concluding inference is, in military phrase, the key of the position, and if it be tenable, it will decide the controversy ; for a law ipso facto void, is absolutely a non entity. But it is putting the argument on bold ground to say, that a high pub- lic functionary shall challenge no more respect than is due to a private individual ; and that its acts, although presenting themselves under sanctions derived from a strict observance of the form of enactment prescribed in the Constitution, are to be rejected as ipso facto void for excess of authority. The Constitution is not to be expounded like a deed, but by principles of interpretation much more liberal ; as was declared by this court, in The Farmers and Mechanics' Bank v. Smith, 3 Serg. & Rawle, 63. But, in the case of a public functionary, even according to common-law maxims, omnia presumi debeant rite et solemniter esse acta. The benefit of this maxim cannot be refused to the legislature by those who advocate the other side, inasmuch as it is the foundation of their own hypothesis ; for all respect is demanded for the acts of the judiciary. For instance : let it be supposed that the power to declare a law unconstitutional has been exercised. What is to be done ? The legislature must acquiesce, although it may think the construction of the judiciary wrong. But why must it acquiesce ? Only because it is bound to pay that respect to every other organ of the gov- ernment, which it has a right to exact from each of them in turn. This is the argument. But it will not be pretended, that the legislature has not at least an equal right with the judiciary to put a construction on the Constitution ; nor that either of them is infallible ; nor that either ought to be required to surrender its judgment to the other. Suppose, then, they differ in opinion as to the constitutionality of a particular law ; if the organ whose business it first is to decide on the subject, is not to have its judgment treated with respect, what shall prevent it from securing the preponderance of its opinion by the strong arm of power ? It is in vain to say, the legislature would be the aggressor in this ; and that no argument in favor of its authority can be drawn from an abuse of its power. Granting this, yet it is fair to infer, that the framers of the Constitution never intended to force the judges either to become martyrs or to flinch from their duty ; or to interpose a check that would produce no other effect than an intestine war. Such things have occurred in other States, and would necessarilj' occur in this, under circnrastances of strong excitement in the popular branch. The judges would be legislated out of ofHce, if the majoritj' requisite to a direct removal by impeachment, or the legislative address, could not be had ; and this check, instead of producing the salutary effect expected from it, would rend the government in pieces. But, suppose that a struggle would not produce consequences so disastrous, still the sound- ness of any construction which would bring one organ of the govern- 138 EAKIN V. RAUB. [CHAP. I. ment into collision with another, is to be more than suspected; for where collision occurs, it is evident the machine is working in a way tlie framers of it did not intend. But what I want more immediately to press on the attention, is the necessity of j-ielding to the acts of the legislature the same respect that is claimed for the acts of the judiciary. Repugnance to the Constitution is not always self-evident ; for ques- tions involving the consideration of its existence, require for their solution the most vigorous exertion of the higher faculties of the mind, and conflicts will be inevitable, if anj' branch is to apply the Constitu- tion after its own fashion to the acts of all lihe others. I take it, then, the legislature is entitled to all the deference that is due to the judi- ciary ; that its acts are in no case to be treated as ipso facto void, except where they would produce a revolution in the government ; and that, to avoid them, requires the act of some tribunal competent under the Constitution (if anj- such there be), to pass on their validity. All that remains, therefore, is to inquire whether the judiciary or the people are that tribunal. Now, as the judiciarj- is not expressly constituted for that purpose, it must derive whatever authority of the sort it may possess, from the reasonableness and fitness of the thing. But, in theory, all the organs of the government are of equal capacity ; or, if not equal, each must be supposed to have superior capacity only for those things which pecu- liarlj- belong to it ; and, as legislation peculiarly involves the consid- eration of those limitations which are put on the law-making power, and the interpretation of the laws when made, involves only the construc- tion of the laws themselves, it follows that the construction of the Constitution in this particular belongs to the legislature, which ought therefore to be taken to have superior capacity to judge of the consti- tutionality of its own acts. But suppose all to be of equal capacit}- in everj- respect, why should one exercise a controlling power over the rest? That the judiciary is of superior rank, has never been pretended, although it has been said to be co-ordinate. It is not easy, however, to comprehend how the power which gives law to all the rest, can be of no more than equal rank with one which receives it, and is answerable to the former for the observance of its statutes. Legislation is essentially an act of sovereign power ; but the execution of the laws bj- instruments that are governed by prescribed rules and exercise no power of volition, is essentially otherwise. The verj' definition of law, which is said to be " a rule of civil conduct prescribed bj- the supreme power in the State," shows the intrinsic superiority of the legislature. It maj- be said, the power of the legislature, also, is limited by prescribed rules. It is so. But it is, nevertheless, the power of the people, and sovereign as far as it extends. It cannot be said, that the judiciary is co-oi"dinate merely because it is established by the Constitution. If that were suf- ficient, sherifi's, registers of wills, and recorders of deeds, would be so too. Within the pale of their authority, the acts of these oflBcers will have the power of the people for their support ; but no one will pretend, SECT. II.] EAKIN V. RAUB. 139 they are of equal dignity with the acts of the legislature. Inequality of rank arises not from the manner in which the organ has been con- stituted, but from its essence and the nature of its functions ; and the legislative organ is superior to every other, inasmuch as the power to will and to command, is essentially superior to the power to act and to obey. It does not follow, then, that every organ created by special provision in the Constitution, is of equal rank. Both the executive, strictly as such, and the judiciary are subordinate ; and an act of supe* rior power exercised by an inferior Ought, one would think, to rest on something more solid than implication. It may be alleged, that no such power is claimed, and that the judi- ciary does no positive act, but merely refuses to be instrumental in giving effect to an unconstitutional law. This is nothing more than a repetition in a different form of the argument, — that an unconstitu- tional law is ipso facto void ; for a refusal to act under the law, must be founded on a right in each branch to judge of the acts of all the others, before it is bound to exercise its functions to give those acts effect. No such right is recognized in the different branches of the national government, except the judiciary (and that, too, on account of the peculiar provisions of the Constitution), for it is now univer- sally held, whatever doubts may have once existed, that Congress is bound to provide for carrying a treaty into effect, although it maj' dis- approve of the exercise of the treaty-making power in the particular instance. A government constructed on any other principle, would be in perpetual danger of standing still ; for the right to decide on the constitutionality of the laws, would not be peculiar to the judiciary, but would eqiiallj- reside in the person of everj- ofHcer whose agency might be necessary to carry them into execution. Every one knows how seldom men think exactly alike on ordinary subjects ; and a government constructed on the principle of assent by all its parts, would be inadequate to the most simple operations. The notion of a complication of counter checks has been carried to an extent in theory, of which the framers of the Constitution never dreamt. When the entire sovereignty was separated into its elementary partSj and distributed to the appropriate branches, all things incident to the exercise of its powers were committed to each branch exclusively. The negative which each part of the legislature may exercise, in regard to the acts of the other, was thought sufficient to prevent material in- fractions of the restraints which were put on the power of the whole ; for, had it been intended to interpose the judiciary as an additional bar- rier, the matter would surely not have been left in doubt. The judges would not have been left to stand on the insecure and ever shifting ground of public opinion as to constructive powers : thej' would have been placed on the impregnable ground of an express grant. They would not have been compelled to resort to the debates in 'the con- vention, or the opinion that was generally entertained at the time; A constitution, or a statute, is supposed to contain the whole will of 140 EAKIN V. EAUB. [CHAP. I. the body from which it emanated ; and I would just as soon resort to the debates in the legislature for the construction of an Act of Assembly, as to the debates in the convention for the construction of the Constitution. The power is said to be restricted to cases that are free from doubt or difficultj'. But the abstract existence of a power cannot depend on the clearness or obscurity of the case in which it is to be exercised ; for that is a consideraiion that cannot present itself, before the ques- tion of the existence of the power shall have been determined ; and, if its existence be conceded, no consideratiofns of policy arising from the obscurity of the particular case, ought to influence the exercise of it. The judge would have no discretion ; but the party submitting the question of constitutionalit3' would have an interest in the decision of it, which could not be postponed to motives of deference for the opinion of the legislature. His rights would depend not on the great- ness of the supposed discrepancy with the Constitution, but on the existence of any discrepancy at all ; and the judge would therefore be bound to decide this question, like every other in respect to which he may be unable to arrive at a perfectly satisfactory conclusion. But he would evade the question instead of deciding it, were he to refuse to decide in accordance with the inclination of his mind. To saj', there- fore, that the power is to be exercised but in perfectlj' clear cases, is to betray a doubt of the propriety of exercising it at all. Were the same caution used in judging of the existence of the power that is inculcated as to the exercise of it, the profession would perhaps arrive at a different conclusion. The grant of a power so extraordi- nary ought to appear so plain, that he who should run might read. Now,, put the Constitution into the hands of any man of plain sense, whose mind is free from an impression on the subject, and it will be impossible to persuade him, that the exercise of such a power was ever contemplated by the convention. But the judges are sworn to support the Constitution, and are they not bound by it as the law of the land ? In some respects they are. In the verj- few cases in which the judiciary, and not the legislature, is the immediate organ to execute its provisions, they are bound by it in preference to any Act of Assembly to the contrary. In such cases, the Constitution is a rule to the courts. But what I have in view in this inquiry, is the supposed right of the judiciary to interfere, in cases where the Constitution is to be carried into effect through the instru- mentalit3- of the legislature, and where that organ must necessarily first decide on the constitutionality of its own act. The oath to sup- port the Constitution is not peculiar to the judges, but is taken indis- criminately by every officer of the government, and is designed rather as a test of the political principles of the man, than to bind the officer in the discharge of his duty : otherwise it were difficult to determine what operation it is to have in the case of a recorder of deeds, for in- stance, who, in the execution of his office, has nothing to do with the SECT. II.] EAKIN V. EA.UB. 141 Constitution. But granting it to relate to tlie official conduct of the judge, as well as every other ofHcer, and not to his political principles, still it must be understood in reference to supporting the Constitution, onl}- as far as that may be involved in his official duty ; and, conse- quentlj-, if his official duty does not comprehend an inquiry into the authority of the legislature, neither does his oath. It is worthy of remark here, that the foundation of ever^' argument in favor of the right of the judiciary, is found at last to be an assumption of the whole ground in dispute. Granting that the object of the oath is to secure a support of the Constitution in the discharge of official duty, its terms may be satisfied by restraining it to official duty in the exercise of the ordinary judicial powers. Thus, the Constitution maj' furnish a rule of construction, where a particular interpretation of a law would conflict with some constitutional principle ; and such interpretation, where it may, is always to be avoided. But the oath was more probably de- signed to secure the powers of each of the different branches from being usurped by an^' of the rest : for instance, to prevent the House of Representatives from erecting itself into a court of judicature, or the Supreme Court from attempting to control the legislature ; and, in this view, the oath furnishes an argument equally plausible against the right of the judiciarj-. But if it require a support of the Constitution in any- thing beside official duty, it is in fact an oath of allegiance to a partic- ular form of government ; and, considered as such, it is not easy to see wh}' it should not be taken by the citizens at large, as well as by the officers of the government. It has never been thought that an officer is under greater restraint as to measures which have for their avowed end a total change of the Constitution, than a citizen who has taken no oath at all. The official oath, then, relates only to the official conduct of the officer, and does not prove that he ought to stray from the path of his ordinary business to search for violations of duty^ in the business of others; nor does it, as supposed, define the powers of the officer. But do not the judges do a positive act in violation of the Constitu- tion, when they give effect to an unconstitutional law? Not if the law has been passed according to the forms established in the Constitution. The fallacy of the question is, in supposing that the judiciary adopts the Acts of the Legislature as its own ; whereas the enactment of a law and the interpretation of it are not concurrent acts, and as the judiciary is not required to concur in the enactment, neither is it in the breach of the Constitution which may be the consequence of the enactment. The fault is imputable to the legislature, and on it the responsibility exclu- sively rests. In this respect, the judges are in the predicament of jui-ors who are bound to serve in capital cases, although unable, under any circumstances, to reconcile it to their duty to deprive a human being of life. To one of these, who applied to be discharged from the panel, I once heard it remarked, by an eminent and humane judge, " You do not deprive a prisoner of life by finding him guilty of a cap- 142 EAKIN V. KA.UB. [CHAP. I. ital crime : j-ou but pronounce his ease to be within the law, and it is therefore those who declare the law, and not you, who deprive him of life." That everything addressed to the legislature by waj' of positive com- mand, is purely directory, will hardly be disputed : it is onlj- to enforce prohibitions that the interposition of judicial authority is thought to be warrantable. But I can see no room for a distinction between the injunctions that are positive and those that are negative : the same authority must enforce both. But it has been said, that this construction would deprive the citizen of the advantages which are peculiar to a written constitution, bj- at once declaring the power of the legislature, in practice, to be illimitable. I ask, what are those advantages? The principles of a written consti- tution are more fixed and certain, and more apparent to the apprehen- sion of the people, than principles which depend on tradition and the vague comprehension of the individuals who compose the nation, and who cannot all be expected to receive the same impressions or enter- tain the same notions on atiy given subject. But there is no magic or inherent power in parchment and ink, to command respect and protect principles from violation. In the business of government, a recurrence to first principles answers the end of an observation at sea with a view to correct the dead reckoning ; and, for this purpose, a -^yritten consti- tution is an instrument of, inestimable value. It is of inestimable value, also, in rendering its principles familiar to the mass of the people ; for, after all, there js no effectual guard against legislative usurpation but public opinion, the force of which, in this country, is inconceivably' great. Happily this i^s proved, by experience, to be a sufficient guard against palpable infractions. The Constitution of this State has withstood the shocks of strong party excitement for thirty j-ears, during which no Act of the Legislature has been declared unconstitutional, although the judiciar3' has constantl3- asserted a right to do so in clear cases. But it would be absurd to say, that this remarkable observance of the Constitution has been produced, not by the responsibility of the legis- lature to the people, but by an apprehension of control bj- the judiciary. Once let public opinion be so corrupt as to sanction every misconsti'uc- tion of the Constitution and abuse of power which the temptation of the moment may dictate, and the party which may happen to be pre- dominant, will laugh at the punj- efforts of a dependent power to arrest it in its course. For these reasons, I am of opinion that it rests with the people, in whom fulLand absolute sovereign power resides, to correct abuses in legislation, by instructing their representatives to repeal the obnoxious Act. What is wanting to plenary power in the government, is reserved bj' the people for their own immediate use ; and to redress an infringe- ment of their rights in this respect, would seem to be an accessor}' of the power thus reserved. It might, perhaps, have been better to vest the power in the judiciary ; as it might be expected that its haliits of SECT, n.] EAKIN V. KAUB. 143 deliberation, and the aid derived from the arguments of counsel, would more frequently lead to accurate conclusions. On the other hand, the judiciar3' is not infallible ; and an error by it would admit of no remedy but a more distinct expression of the public will, through the extraor- dinary medium of a convention ; whereas, an error by the legislature admits of a remedy by an exertion of the same will, in the ordinary exercise of the right of suffrage, — a mode better calculated to attain the end, without popular excitement. It may be said, the people would probably not notice an error of their representatives. But they would as probably do so, as notice an error of the judiciary ; and, beside, it is a postulate in the theory of our government, and the very basis of the superstructure, that the people are wise, virtuous, and competent to manage their own affairs : and if they are not so, in fact, still every question of this sort must be determined according to the principles of the Constitution, as it came from the hands of its framers, and the ex- istence of a defect which was not foreseen, would not justify those who administer the government, in applying a corrective in practice, which can be provided only by a convention. Long and uninterrupted usage is entitled to respect; and, although it cannot change an admitted principle of the Constitution, it will go far to settle a question of doubtful right. But, although this power has all along been claimed by the State judiciary, it has never been exercised. Austin v. The University of Pennsylvania, 1 Yeates, 260, is the only case even apparentlj- to the contrary ; but there the Act of Assembly had been previously repealed. In Vanhorne v. Dorrance, decided by the Circuit Court of the United States under similar circumstances, the right is peremptorily asserted and examples of monstrous violations of the Constitution are put in a strong light by wa^' of example ; such as tak- ing away the trial bj- jurj-, the elective franchise, or subverting religious liberty. But any of these would be such a usurpation of the political rights of the citizens, as would work a change in the very structure of the government ; or, to speak more properlj-, it would itself be a revo- lution, which, to counteract, would justify even insurrection ; conse- quently, a judge might lawfull3- employ every instrument of official resistance within his reach. By this I mean, that while the citizen should resist with pike and gun, the judge might co-operate with habeas corpus and mandamus. It would be his duty, as a citizen, to throw himself into the breach, and, if it should be necessary, perish there ; but this is far from proving the judiciarj' to be a peculiar organ under the ' Constitution, to prevent legislative encroachment on the powers reserved by the people ; anrl this is all that I contend it is not. Indeed, its absolute inadequacy to the object, is conclusive that it never was intended as such by the framers of the Constitution, who must have had in view the probable operation of the government in practice. But in regard to an Act of Assembly', which is found to be in collision with the Constitution, laws, or treaties of the United States, I take the 144 • EAKIN V. BA.UB. [CHAP. I. duty of the judiciary to be exactly the reverse. By becoming ^parties to the Federal Constitution, the States have agreed to several limita- tions of their individual sovereignty, to enforce which, it was thought to be absolutely necessary- to prevent them from giving effect to laws in violation of those limitations, through the instrumentality of their own judges. Accordingly-, it is declared in the sixth article and second section of the Federal Constitution, that " This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the» supreme law of the land ; and the judges in every State shall be bound thereby : anj-thing in the laws or Constitution of any State to the contrary notwith- standing." This is an express grant of a political power, and it is conclusive to show that no law of inferior obligation, as every State law must neces- sarily be, can be executed at the expense of the Constitution, laws, or treaties of the United States. It may be said, these are to furnish a rule only when there is no State provision on the subject. But, in that view, thej' could with no propriety be called supreme ; for supremacj' is a relative term, and cannot be, predicated of a thing which exists sepa- rately and alone : and this law, which is called supreme, would change its character and become subordinate as soon as it should be found ia conflict with a State law. But the judges are to be bound by the Fed- eral Constitution and laws, notwithstanding anything in the Constitu- tion or laws of the particular State to the contrary-. If, then, a State were to declare the laws of the United States not to be obligator3- on her judges, such an Act would unquestionabl3' be void ; for it will not be pretended, that any member of the Union can dispense with the obligation of the Federal Constitution : and, if it cannot be done directly, and bj- a general declaratory law, neither can it indirectl}', and by by-laws dispensing with it in particular cases. This, therefore, is an express grant of the power, and would be sufficient for the purposes of the argument ; but it is not all. By the third article and second section, appellate jurisdiction of all cases arising under the Constitution and laws of the United States, is reserved to the Federal judiciary, under such regulations as Congress may prescribe ; and, in execution of this provision. Congress has pre- scribed regulations for removing into the Supreme Court of the United States all causes decided by the highest court of judicature of any State, which involve the construction of the Constitution, or of any law or treatj* of the United States. This is another guard against infraction of the limitations imposed on State sovereignty, and one which is extremely efficient in practice ; for reversals of decisions in favor of the constitu- tionality of Acts of Assembly have been frequent on writs of error to the Supreme Court of the United States. Now, a reversal implies that it was not only the right, but the duty of the inferior court to decide otherwise ; for where there is but one SECT. II.] EAKIN V. EAUB. 145 way of deciding, there can be no error. But what be leficial result would there be produced by the decision of a State court in favor of a State law palpably unconstitutional? The injured party would have the judgment reversed by the court in the last resoi't, and the cause would come back with a mandate to decide differently, which the State court dare not disobey : so that nothing would eventually be gained by the party claiming under the law of the State, but, on the contrary, he would be burdened with additional costs. I grant, however, that the State judiciary* ought not to exercise the power except in cases free from all doubt, because, as a writ of error to the Supreme Court of the United States lies to correct an error only in favor of the constitution- ality of the State law, an error in deciding against it would be irremedi- able. Anticipating those who think they perceive in this, exactly what I have censured in those who assume the existence of the same power in respect to laws that are repugnant to the Constitution of the State, but restrict the exercise of it to clear cases, I briefly remark that the instances are not parallel ; an error in deciding against the validity of the law being irreparable in the one, and not so in the other. Unless, then, the respective States are not bound by the engagement, which they have contracted by becoming parties to the Constitution of the United States, they are precluded from denying either the right pr the duty of their judges, to declare their laws void when thej' are repug- nant to that Constitution. The preceding inquiry may perhaps appear foreign to the point im- mediately before the court; but, as the Act of 1815 may be thought repugnant to the Constitution of the State, an examination of the powers of the judiciarj- became not onlj- proper but necessarj'. Then, laying the Constitution of the State out of the case, what re- striction on State sovereignty is violated by at once repealing anj* of the saving clauses in the Statute of Limitations ? Those restrictions are contained in the first article and tenth section of the Constitution of the United States ; and, as there is no pretence that a contract has been impaired, none of them can, even bj- the most strained construction, be supposed to be violated, except that which relates to ex post facto laws. But that was held, in Colder v. Bull, 3 Dall. 386, to be applicable only to penal laws. The law in question not onl3^ relates to civil rights, but is not even retrospective. ... I am therefore of opinion that the judgment be afHrmed.* ' When this opinion was cited, in argument, in 1845, Chief Justice Gibson remarked to counsel : " I have changed that opinion, for two reasons. The late convention [for framing the Pennsylvania Constitution of 1838], by their silence, sanctioned the preten- sions of the courts to deal freely with the Acts of the Legislature ; and from experience of the necessity of the case." Norris v. Clymer, 2 Peun. St. 281. — Ed. VOL. I. — 10 146 NOTE. [chap. I. NOTE.i The quotation from Bluntschli's Public Law, previously given,^ is authority for the proposition that, in 1863, in Germany, no judicial court could declare a law of its State to be void because conflicting with the written constitution of the State. That proposition was in 1883, and is since, equally true of the judiciaries of the several States of the German Empire. Between those two dates, however, two most inter- esting cases have been decided, in the first of which the truth of the proposition was denied with great ability by the Hanseatic Court of Upper Appeal at Lubeck. In the second case, the doctrine of the first was overrtfled by the Imperial Tribunal or Supreme Court of the German Empire. Thus, with the exception of a temporary recognition within the limited territories of the Hanseatic republics, the proposition in question has always been law in the different States of Germany possessing written constitutions, that is to say, in nearly every German State. The first case was decided in 1875. It is that of Garbade v. The State of Bremen, and is reported in Seuffert's Archives for the Decisions of the Highest Courts of the German States, vol. 32, no. 101. The following is a translation of the decision of the Hanseatic Court of Upper Appeal, there given in the original: " Positive directions like that of Article 106 of the Prussian constitutional charter sometimes prohibit an ofiicial testing of the legal validity of ordinances [of the sov- ereign] which have been authenticated in due form. When such directions do not exist, the judge has, according to general legal principles, both the authority and the duty of refusing to apply an ordinance of the sovereign (Landesherr), which, while its provisions are those of a law, has not been enacted according to the forms prescribed for making laws by the Constitution of the land. For this purpose, the judge must, of course, first of all examine whether, when the law in question was published it was then explicitly stated that the constitutionally prescribed forms were observed. (See case in Kierulff's Collection, vol. 5, p. 331.) The proper decision in such a case, how- ever, depends only npon the question as to what evidence is sufiicient to put the judge in a position of ascertaining with certainty that the constitutional forms for making laws were complied with. The decision itself, therefore, takes for granted that the judge must have no doubt as to the observance of the constitutionally prescribed forms in making the law in question, and when the decision has shown a condition of things, which prevents any such doubt, it goes no farther. " It is thus true that, in cases of laws which are not organic ones altering the Constitution, the judge must be sure that the law, which he is to apply, has been made according to constitutional forms. Such being so, it must be equally true that the same requirement must be met in the case of organic laws altering the Constitution, for, either a part or the whole of their provisions may enlarge or diminish existing rights as hitherto constituted. For the judge is as much bound by the organic con- stitutional law of the land as by any other law. If therefore the observance of cer- tain forms is constitutionally prescribed for changing a constitutional charter, it can only be altered or abolished by observing those forms. An ordinary law exists until it is abolished by way of legislation according to the forms prescribed for the enacting of laws. So too, a constitution exists until it is abolished by way of organic legisla- tion according to the forms prescribed for changing the Constitution. These points do not include a further and a different question as to what are the conditions under which the judge must feel convinced that the requisite forms for altering the Constitu- 1 The first part of this note is taken from Coxe's Jud. Power and Unconst. Legis. 9.5-102. I am indebted to William M. Meigs, Esq., the editor of this valuable work of the late Brinton Coxe, of Philadelphia, for obtaining permission from the owners of the copyright, and from the publishers (JVIessrs. Kay and Bro.), to quote these s. — Ed. 2 Bluntschli, Gen. Pub. Law (ed. 1863), i. 550, 551. SECT. II.] NOTE. 147 tion have been observed. An answer to this question is not, however, necessary in the case before us, " That case is as follows : '• A constitution has been made in Bremen, the 19th article of which reads : " ' Property and other private rights are inviolable. Ces.sion, svirrender, or limita- tion of the same for the general good can only be required in the cases and forms prescribed by law and upon proper iudemnification.' " A law has been enacted in Bremen which is an ordinance relating to rural com- munities dated 28 December, 1870. It conflicts with the said Constitution and is not an organic constitutional law. Its 15tli section reads thus: " ' All hitherto existing exemptions from communal taxes, so far os not based on Federal laws or State treaties, are abolished without indemnification.' " The last-named law has been enacted according to the forms prescribed for ordi- nary legislation and therefore ought to be binding upon the judge. Nevertheless, if the forms prescribed for ordinary legislation are not sufficient for legislation altering the Constitution, such an Act of ordinary legislation leaves the Constitntion intact. The latter continues to exist and, as long as it does so, the judge must hold it to be an existing law. Hereby arises a conflict of legal provisions. On account of the ine- quality of the conflicting laws, tliis conflict cannot be settled upon the principle of lex posterior derogat legi priori. It can only be settled by an application of the doc- trine that ordinary laws conflicting with organic constitutional laws cannot be enacted. " The judge is to be considered competent to make this decision, even without any authority having been explicitly given him by any special law ; becanse he is obliged to apply the laws and because the application of two existing laws, conflicting with each other, is an impossibility. The recognition of the legal principle, that the judge is not to apply a law conflicting with the Constitution, includes therefore no assertion of a superiority of the judge over the lawgiver. So doing is merely an acknowledg- ment of his authority, in an actual case of conflict, to apply that law, which general legal principles require to be applied. In cases of conflict between laws of the Em- pire and laws of the land, there exists a written legal provision for the settlement thereof. In the case of a conflict between laws, which are of different import but emanate from the legislative power of tlie same State, there enters the legal principle that ordinary laws must not conflict with the pro/isions of the organic constitutional law. It may, perhaps, be objected that, when the legislative authorities have under forms of ordinary legislation, enacted a law, which the judge deems to be in contra- diction to the provisions of the Constitution, those authorities have themselves pre- viously considered the question whether such a contradiction exists. Granting this, however, the resulting obligation of the judge, in such a case, does not extend beyond weigliing carefully the reasons on both sides of the question in a way like that which he must follow in another and similar case. This other case is that in which he is compelled to declare, in opposition to the legislative authorities of ». particular State, that a law made by them contradicts the laws of the Empire. "Now the constitutional charter of Bremen, dated February 21, 1854, in its Ar- ticle 67, establishes certain formalities, by observing which, alterations of the Con- stitution can alone be made. The observance of these formalities in enacting the law of December 28, 1870, would have been considered sufficient for the adoption of any law altering the Constitution. According to the documents before us, it can, how- ever, by no means be admitted that this was done ; there being no indication that, in the case of the law of December 28, 1870, anything other than an Act of ordinary legislation was in question. This being so, the result arrived at in the reasons given for the previous part of this judgment, including likewise the consequences deduced therefrom, directly follow as a matter of course." In concluding this account of the judgment of the Hanseatie Court of Upper Appeal, it ought to be added that it seems probable that that tribunal was greatly influenced by the whole of Von Mohl's treatise on "Unconstitutional Laws" and especially by its pages 79 and 80. See his Monographie ueber die rechiliche Bedeutimg verfassungswidriger Gesetze in his work entitled, Staatsrecht, Vbelkerrecht und Politik 148 NOTE. [chap. I. (Tuebingen, 1860), vol. 1, pp. 66-95. Von Mohl was undonttedly influenced by American ideas and writings, as pages 69 and 71 of the above work prove. He expressly mentions the authors of the Federalist, Story and Kent. He does not name Marshall, but must have been influenced by his views. Klsewhere he expresses great admiration for the.Chief Justice. The case of Garbade v. The State of Bremen was expressly overruled, some eight years later, by the Imperial Tribunal. This was done iu the case of K. v. The Di/ke Board of Niedervieland, which was also a Bremen case. It is reported in the De- cisions of the Reichsgerickt in Civil Causes, vol. 9, p. 233. From the original report the following is partially abstracted and partially translated. The suit was originally brought in the Land Cottrt of Bremen by K. and other interested parties against the Dyke Board of Niedervieland in the State of Bremen. 'I'hence an appeal was taken to the Superior Land Court of Hamburg in second instance. Recourse in third and final instance was then had to the Reichsgericht or Supreme Court of the German Kmpire. The original plaintiffs, who were finally defendants, claimed that their well acquired rights, as commoners of a swine pasture, had been violated by the Dyke Board proceeding under section 29 of the dyke ordi- nance of Bremen, a State of the German Empire. That ordinance was an Act of ordinary legislation and its section 29 was alleged to be In conflict with the provisions of the written Constitution of Bremen, which prohibited legislation impairing well- acquired rights of property. On behalf of K. and the other commoners it was contended, inter alia, that the said section of the dyke ordinance was an invalid law because it conflicted with the Consti- tution as aforesaid. All the questions raised in the case were decided in favor of the Dyke Board. The constitutioiial questions are, however, the only ones requiring mention here. The following extracts are translated from the portion of the decision, which relates to the constitutional branch of the case. This final judgment in third instance was given on February 17, 1883. In it the Court of Second Instance is alluded to as the Court of Appeal: " The principle i.s maintained by the Court of Appeal that, when two interpreta- tions of a law appear possible to a judge, one conilicting and the other not conflicting with the Constitution, the former is simply to be rejected : and this is laid down uni- versally and without limitation (as is indicated by the court's use of the words schon deshalb). So laid down, this principle cannot be recognized as correct. " When both the form of a law and the procedure of its enactment are not those prescribed for an alteration of the [written] 'Constitution, it may happen that a par- ticular interpretation thereof may according to the judge's view be in conflict with a principle of the Constitution. Properly, this circumstance must be considered only one of the reasons determining the interpretation of the law. It can only be a de- cisive one when, exclusive of it, the grounds for one or other of the two contradicting interpretations are equally balanced. The Court of Appeal contented itself with mentioning that the interpretation given in first instance by the Land Court to sec- tion 29 of the dyke ordinance was not one of actual necessity, although its view of the constitutional repugnancy of the section was based upon that interpretation. The Court of Appeal, therefore, attributed too great weight and significance to the inter- pretation made by the Land Court, while not holding the same merely in itself to be fully satisfactory. In so doing, the Court of Appeal overlooked weighty considera- tions, proper in seeking to ascertain the legislative will. Among these was, espe- cially, that of the question as to what was the purpose of the law, and what value according thereto one interpretation had when compared with the other. The omis- sion to consider that question further involved the loss of an available means of assistance which would otherwise have been obtainable. "... There remains to be considered only the question left undecided by the Appellate Court, namely, whether section 29 of the dyke ordinance shall be denied the force of binding law, because it is only an Act of ordinary legislation, while the Constitution is a law of a higher order. In a similar case, such denisil was made by SECT. II.] NOTE. 149 the formerly existing Court of Upper Appeal at Lnbeck. (See Seuffert's Archives, vol. 32, no. 101.^) This view, however, cannot be acceded to. On the contrary, the correct view on this head is that which was taken by the same court in another case only a few years before. (See Kierulff's Collection, vol 7, p. 234.) This correct view is as follows : the constitutional provision that well-acquired rights must not be in- jured, is to be understood only as a rule for the legislative power itself to interpret, and does not signify that a command given by the legislative power should be left disregarded by the judge because it injures well-acquired rights. This is said without affecting the question whether the State may or may not be bound to grant damages ; a matter not here brought into consideration. There is, therefore, no occasion to investigate whether well-acquired rights have been violated or not. The question is not whether a particular principle of the Constitution has been altered or not ; but whether the law could have been enacted without an alteration of the Constitution itself, and therefore without applying the forms prescribed for such alteration. This last question, however, is one which cannot be examined by the judiciary." . . . The case above mentioned in Kierulff's Collection, vol. 7, p. 234, is, that of Krieger V. The State of Bremen, decided by the Hanseatic Court of Upper Appeal on June 15, 1872. On the page cited, the court declares it to be law that the constitutional prin- ciple, which prohibits the injury of well-acquired rights by legislation, is to be under- stood only as a rule for the legislative power itself : that it does not signify that a command, which is given by the legislative power, is to be disregarded by the judi- ciary because it injures well-acquired rights. This is said with a saving a& to whether the State may or may not be bound to grant remuneration for the injury. — Coxe, Jud. Power and Unconsl. Let/is. 95-102. So far as the grounds for this remarkable power are found in the mere fact of a con- stitution being in writing, or in judges being sworn to support it, they are quite inade- quate. Neither the written form nor the oath of the judges necessarily involves tlie right of reversing, displacing, or disregarding any action of the legislature or the execu- tive which those departments are constitutionally authorized to take, or the determi- nation of those departments that they are so authorized. It is enough, in confirmation of this, to refer to the fact that other countries, as France, Germany, and Switzerland, have written constitutions, and that such a power is not recognized there. "The re- strictions," says Dicey, in his admirable Law of the Constitution, " placed on the action of the legislature under the Trench Constitution are not in reality laws, since they are not rules which in the last resort will be enforced by the courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally inscribed in the Constitution, and from the resulting support of public opinion." ■■' How came we then to adopt this remarkable practice ? Mainly as a natural result of our political experience before the War of Independence, — as being colonists, gov- erned under written charters of government proceeding from the English Crown. The terms and limitations of these charters, so many written constitutions, were en- forced by various means, — by forfeiture of the charters, by Act of Parliament, by the direct annulling of legislation by the Crown, by judicial proceedings and an ultimate appeal to the Privy Council. Our practice was a natural result of this ; but it was by no means a necessary one. All this colonial restraint was only the usual and normal 1 The case of Garbade v. The State of Bremen, previously given. 2 Ch. ii. p. 127, 3d ed. President Rogers, in the Preface to a valuable collection of papers on the " Constitutional History of the United States, as seen in the Develop- ment of American Law," 11, remarks that "there is not in Europe to this day a court with authority to pass on the constitutionality of national laws. But in Germany and Switzerland, while the Federal courts cannot annul a Federal law, they may, in either country, declare a cantonal or State law invalid when it conflicts with the Federal law." Compare Dicey, ubi supra, and Bryce, Am. Com., i. 430, note (1st ed.), as to possible qualifications of this statement. 150 NOTE. [chap, I. exercise of power. An external authority had imposed the terms of the charters, the authority of a paramount government, fully organized and equipped for every exigency of disobedience, with a king and legislature and courts of its own. The superior right and authority of this government were fundamental here, and fully recognized ; and it was only a usual, orderly, necessary procedure when our own courts enforced the same rights that were enforced here by the Appellate Court in England. These char- ters were in the strict sense written law : as their restraints upon the colonial legisla- tures were enforced by the English court of last resort, so might they be enforced through the colonial courts, by disregarding as null what went counter to them.i The Itevolutiou came, and what happened then ? Simply this : we cut the cord that tied us to Great Britain, and there was no longer an external sovereign. Our concep- tion now was that " the people " took his place ; that isto say, our own home population in the several States were now their own sovereign. So far as existing institutions were left untouched, they were construed by translating the name and style of the English sovereign into that of our new ruler, — ourselves, the People. After this the charters, and still more obviously the new constitutions, were not so many orders from without, backed by an organized outside goverument, which simply performed an ordi- nary function in enforcing them ; they were precepts from the peojjle themselves who were to be governed, addressed to each of their own number, and especially to those who were charged with the duty of conducting the government. No higher power existed to support these orders by compulsion of the ordinary sort. The sover- eigu himself, having written these expressions of his will, had retired into the clouds ; in any regular course of events he had no organ to enforce his will, except those to whom his orders were addressed in these documents. How then should his written constitution be enforced if these agencies did not obey him, if they failed, or worked amiss ? Here was really a different problem from that which had been presented under the old state of things. And yet it happened that no new provisions were made to meet it. The old methods and the old conceptions were followed. In Connecticut, in 1776, by a mere legislative Act, the charter of 1 662 was declared to continue " the civil Con- stitution of the State, under the sole authority of the people thereof, independent of any king or prince whatsoever ; " and then two or three familiar fundamental rules of liberty and good government were added as a part of it. Under this the people of Connecticut lived till 1818. In Rhode Island the charter, unaltered, served their turn until 1842 ; and, as iS well known, it wa.s upon this that one of the early cases of judi- cial action arose for enforcing constitutional provisions under the new order of things, as against a legislative Act; namely, the case of Trevett v. Weeden, in the Rhode Island Supreme Court in 1786.'^ But it is instructive to see that this new application of judicial power was not uni- versally assented to. It was denied by several members of the Federal Convention, and was referred to as unsettled by various judges in the last two decades of the last cen- tury. The surprise of the Rhode Island Legislature at the action of the court in Trevett V. Weeden seems to indicate an impression in their minds that the change from colonial dependence to independence had made the legislature the substitute for Parliament, with a like omnipotence.^ In Vermont it seems to have been the established doctrine of the period that the judiciary could not disregard a legislative Act ; and the same view was held in Connecticut, as expressed in 1795 by Swift, afterwards Chief Justice of . that State. In the preface to 1 D. Chipman's (Vermont) Reports, 22 e< sej., the learned reporter, writing (in 1824) of the period of the Vermont Constitution of 1777, says that " No idea was entertained that the judiciary had any power to inquire into the constitutionality of Acts of the Legislature, or to pronounce them void for any 1 For the famous cases of Lechmere v. Winthrop (1727-28), Phillips v. Savarje (1734), and Clark v. Tousey (1745), see the Talcott Papers, Conn. Hist. Soc. Coll. iv. 94, note. ^ Varnum's Report (Providence, 1787) ; b. c. 2 Chandler's Crim. Trials, 269. ' And so of the excitement aroused by the alleged setting aside of a legislative Act in New York in 1 784, in the case of Rutgers v. Waddington. SECT. II.] NOTE. 151 cause, or eveu to question their validity." And at page 25, speaking of the year 1785, he adds : " Long after the period to which we have alluded, the doctrine that the Con- Btitution is the supreme law of the land, and that the judiciary have authority to set aside . . . Acts repugnant thereto, was considered anti-republican." In 1814,^ for the first time, I believe, we find this court announcing an Act of the State Legislature to be " void as against the Constitution of the State and the United States, and eveu the laws of nature." It may be remarked here that the doctrine of declaring legislative Acts void as being contrary to the Constitution, was probably helped into existence by a theory which found some favor among our ancestors at the time of the Kevolution, that courts might disregard such Acts if they were contrary to the fundamental max- ims of morality, or, as it was phrased, to the laws of nature. Such a doctrine wa.'i thought to have been asserted by English writers, and even by judges at times, but was never acted on. It has been repeated here, as matter of speculation, by our earlier judges, and occasionally by later ones; but in no case within my knowledge has it ever been enforced where it was the single and necessary ground of the decision, nor can it be, unless as a revolutionary measure.^ In Swift's System of the Laws of Connecticut, published in 1795,^ the author argues strongly and elaborately against the power of the judiciary to disregard a legis- lative enactment, while mentioning that the contrary opinion " is very popular and prevalent." " It will be agreed," he says, " it is as probable that the judiciary will declare laws unconstitutional which are not so, as it is that the legislature will exceed their constitutional authority." But he makes the very noticeable admission that there may be cases so monstrous, — e. g., an Act authorizing conviction for crime without evidence, or securing to the legislature their own seats for life, — " so manifestly un- constitutional that it would seem wrong to require the judges to regard it in their decisions." As late as 1807 and 1808, judges were impeached l)y the Legislature of Ohio for holding Acts of that body to be void.* When at last this power of the judiciary was everywhere established, and added to the other bulwarks of our written constitutions, how was the power to be conceived of ? Strictly as a judicial one. . . . Therefore, since the power now in question was a purely judicial one, in the first place, there were many cases where it had no operation. In the case of purely political acts and of the exercise of mere discretion, it mattered not that other departments were violating the Constitution, the judiciary could not inter- fere ; on the contrary, they must accept and enforce their Acts. Judge Cooley has lately said:* "The common impression undoubtedly is that in the case of any legis^ lation where the bounds of constitutional authority are disregarded, . . . the judiciary is perfectly competent to afford the adequate remedy ; that the Act indeed must be void, and that any citizen, as well as the judiciary itself, may treat it as void, and refuse obedience. This, however, is far from being the fact." Again, where the power of the judiciary did have place, its whole scope was this ; namely, to determine, for the mere purpose of deciding a litigated question properly submitted to the court, whether a particular disputed exercise of power was forbidden by the Constitution. In doing this the court was so to discharge its office as not to deprive another department of any of its proper power, or to limit it in the proper - Dupuy V. Wickwire, 1 D. Chipman, 237. 2 This subject is well considered in a learned note to Paxton's Case (1761), Quincy's Eep. 51, 520, relating to Writs of Assistance. The American cases sometimes referred ' to as deciding that a legislative Act was void, as being contrary to the first principles of morals or of government, — e. g., in Quincy, 529, citing Bowman v. Middleton, 1 Bay, 252, and in 1 Bryce, Am. Com. 431, n., 1st ed., citing Gardner v. Newburgh, 2 Johns. Ch. Rep. 162, — will be found, on a careful examination, to require no such explanation. * Vol. i. 50 et seq. * Cooley, Const. Lim., 6th ed., 193, n. ; 1 Chase's Statutes of Ohio, preface, 38-40. For the last reference I am indebted to my colleague. Professor Wambaugh. ' Journal of the Michigan Pol. Sc. Association, L 47. 152 NOTE. [chap. I. range of its discretion. Not merely, then, do these questions, when presenting them- selves in the courts for judicial action, call for a peculiarly large method in the treat- ment of them, but especially they require an allowance to be made by the judges for the'vast and not definable range of legislative power and choice, for that wide margin of considerations which address themselves only to the practical judgment of a legisla- tive body. Within that margin, as among all these legislative considerations, the con- stitutional law-makers must be allowed a free foot. In so far as legislative choice, ranging here unfettered, may select one form of action or another, the judges must not interfere, since their question is a naked judicial one. Moreover, such is the nature of this particular judicial question that the preliminary determination by the legislature is a fact of very great importance, since the constitu- tions expressly intrust to the legislature this determination ; they cannot act without making it, !Furthermore, the constitutions not merely intrust to the legislatures a pre- liminary determination of the question, but they contemplate that this determination may be the iiual one ; for they secure no revision of it. It is only as litigation may spring up, and as the course of it may happen to raise the point of constitutionality, that any question for the courts can regularly emerge. It may be, then, that the mere legislative decision will accomplish results throughout the country of the profoimdest importance before any judicial question can arise or be decided, — as in the case of the first and second charters of the United States Bank, and of the legal tender laws of thirty years ago and later. The constitutionality of a bank charter divided the cabinet of Washington, as it divided political parties for more than a generation. Yet when the first charter was given, in 1791, to last for twenty years, it ran through its whole life unchallenged in the courts, and was renewed in 1816. Only after three years from that did the question of its constitutionality come to decision in the Supreme Court of the United States, It is peculiarly important to observe that such a result is not an exceptional or unforeseen one ; it is a result anticipated and clearly foreseen. Now, it is the legislature to whom this power is given, — this power, not merely of enacting laws, but of putting an interpretation on the Constitution which shall deeply affect the whole country, enter into, vitally change, even revolutionize the most serious affairs, except as some individual may find it for his private interest to carry the matter into court. So of the legal tender legislation of 1 863 and later. More important action, more intimately and more seriously touching the interests of every member of our popu- lation, it would be too hard to think of. The constitutionality of it, although now up- held, was at first denied by the Supreme Court of the United States, The local courts were divided on it, and professional opinion has always been divided. Yet it was the legislature that determined this question, not merely primarily, but once for all, except as some individual, among the innumerable chances of his private affairs, found it for his interest to raise a judicial question about it. It is plain that where a power so momentous as this primary authority to interpret is given, the actual determinations of the body to whom it is intrusted are entitled to a corresponding respect ; and this not on mere grounds of courtesy or conventional respect, but on very solid and significant grounds of policy and law. The judiciary may well reflect that if they had been regarded by the people as the chief protection against legislative violation of the Constitution, they would not have been allowed merely this incidental and postponed control. They would have been let in, as it was sometimes endeavored in the conventions to let them in, to a revision of the laws be- fore they began to operate.^ As the opportunity of the judges to check and correct 1 The Constitution of Colombia, of 1886, art. 84, provides that the judges of the Supreme Court may take part in the legislative debates over " biUs relating to civil matters and judicial procedure." And in the case of legislative bills which are objected to by "the government " as unconstitutional, if the legislature insist on the bill, as against a veto by the government, it shall be submitted to the Supreme Court, which is to decide upon this question finally. Arts. 90 and 150. See a translation of this Constitution by Professor Moses, of the University of California, in the supplement to the Annals of the American Academy of Political and Social Science, for Januai^i SECT. II.] NOTE. 153 unconstitntional Acts is so limited, it may help us to understand wliy the extent of their control, when they do have the opportunity, should also be narrow. It was, then, all along true, and it weis foreseen, that much wliich is harmful and unconstitutional may take effect without any capacity in the courts to prevent it, since their whole power is a judicial one. Their interference was but one of many safe- guards, and its scope was narrow. The rigor of this limitation upon judicial action is sometimes freely recognized, yet in a perverted way which really operates to extend the judicial function beyond its just bounds. The court's duty, we are told, is tlie mere and simple office of construing two writings and comparing one with another, as two contracts or two statutes are con- strued and compared when they are said to conflict ; of declaring the true meaning of each, and, if they are opposed to each other, of carrying into effect the Constitution as being of superior obligation, — an ordinary and humble judicial duty, as the courts sometimes describe it. This way of putting it easily results in the wrong kind of dis- regard of legislative considerations ; not merely in refusing to let them directly operate as grounds of judgment, but in refusing to consider them at all. Instead of taking them into account and allowing for them as furnishing possible grounds of legislative action, there takes place a pedantic and academic treatment of the texts of the Consti- tution and the laws. And so we miss that combination of a lawyer's rigor with a statesman's breadth of view which should be found in dealing with this class of ques- 1893. We are much too apt to think of the judicial power of disregarding the acts of the other departments as our only protection against oppression and ruin. But it is remarkable how small a part this played in any of the debates. The chief protections were a wide suffrage, short terms of office, a double legislative cham- ber, and the so-called executive veto. There was, in general, the greatest unwill- ingness to give the judiciary any share in the law-making power. In New York, however, the Constitution of 1777 provided a Council of Revision, of which sev- eral of the judges were members, to whom aU legislative Acts should be submitted before they took effect. That existed for more than forty years, giving way in the Constitution of 1821 to the common expedient of merely requiring the approval of the executive, or in the alternative, if he refused it, the repassing of the Act, perhaps by an increased vote, by both branches of the legislature. In Pennsylvania (Const, of 1776, § 47) and Vermont (Const, of 1777, § 44) a Council of Censors was provided for, to be chosen every seven years, who were to investigate the conduct of affairs, and point out, among other things, all violations of the Constitution by any of the departments. In Pennsylvania this arrangement lasted only from 1776 to 1790; in Vermont from 1777 to 1870. In framing the Constitution of the United States, several of these expe- dients, and others, were urged, and at times adopted ; e. g., that of New York. It was proposed at various times that the general government should have a negative on all the legislation of the States ; that the governors of the States should be appointed by the United States, and should have a negative on State legislation ; that a Privy Coun- cil to the President should be appointed, composed in part of the judges ; and that the President and the two Houses of Congress might obtain opinions from the Supreme Court. But at last the convention, rejecting all these, settled down upon the common expedients of two legislative Houses, to be a check upon each other, and of an executive revision and veto, qualified by the legislative power of reconsideration and enactment by a majority of two-thirds; — upon these expedients, and upon the declaration that the Constitution, and constitutional laws and treaties, shall be the supreme law of the land, and shall bind the judges of the several States. This provision, as the phrasing of it indicates, was inserted with an eye to secure the authority of the general govern- ment as against the States, i. e., as an essential feature of any efficient Federal system, and not with direct reference to the other departments of the government of the United States itself. The first form of it was that " legislative Acts of the United States, and treaties, are the supreme law of the respective States, and bind the judges there as against their own laws." 154 BYKNE V. STEWART. [CHAP. L tioDs in constitutional law. Of this petty method we have many specimens ; they are found only too easily to-day in the volumes of our current reports. In order, however, to avoid falling into these narrow and literal methods, in order to prevent the courts from forgetting, as MarsEall said, that " it is a constitution we are expounding," these literal precepts about the nature of the judicial task have been accompanied by a rule of administration which has tended, in competent hands, to give matters a very different complexion. — Thaybe's Origin and Scope of the American Doctrine of Constitutional Law, 4-12. — Ed- ADM'RS OF BYRNE v. AUM'RS OF STEWART. CouET OF Equity op South Carolina. 1812. [3 Des. 466.] . . . Jifr. Pringle, Mr. Ford, and 2H5*. Simons argued against the rule. Mr. Smith, in support of tiie rule. Chancellor Waties, after taking time to deliberate, delivered the following judgment : A rule was taken out in this case against C. Lining, Esq., to show cause why another solicitor should not be substituted in his place for the defendants, on account of his being the ordinary for Charleston district, and disqualified as such from practising as a solicitor by an Act passed in December, 1811. The defendant showed for cause that the Act of the Legislature which restrains him as aforesaid, is void, because it is an ex post faeto law ; and that it is also void because it deprives him of a right of free- hold, without the judgment of his peers, or any law authorized by the Constitution. It has been correctlj- said in the argument that the question for the court in this case is not whether the Act complained of is a just and proper one, but whether the legislature had a right to make it? The power and the duty of the court to declare an act void, which violates any right of the citizen secured to him by the Constitution, have been admitted on both sides, and I feel so strong a sense of this dntj-, that if the violation complained of was manifest, I should not only declare the Act void, but in doing so I should think that I rendered a more important service to my country than I could hy discharging the ordinarj' duties of a judge for many years. It is the peculiar and characteristic excellence of tLe free govern- ments of America, that the legislative power is not supreme ; but that it is limited and controlled bj' written constitutions, to which the judges, who are sworn to defend them, are authorized to give a transcendent operation over all laws that maj' be made in derogation of them. This judicial check affords a security here for civil libertj', which belongs to no other governments in the world ; and if the judges will everywhere faithfully exercise it, the liberties of the American nation SECT. II.] BYRNE V. STEWART. 155 may be rendered perpetual. But while I assert this power in the court, and insist on the great value of it to the communitj', I am not insen- sible of the high deference which is due to the legislative authority. It is supreme in all cases in which it is not restrained by the Constitution ; and as it is the duty of the legislators as well as of the judges to con- sult this and conform their acts to it, so it ought to be presumed that all their acts are conformable to it, unless the contrary is manifest- This confidence in the wisdom and integrity of the legislature, is neces- sary to ensure a due obedience to its authority ; for if this is frequently questioned, it must tend to diminish that reverence for the laws which is essential to the public safety and happiness. I am not, therefore, disposed to examine with scrupulous exactness the validity' of a law. It would be unwise to do so on another account. The interference of the judicial power with legislative acts, if frequent or on dubious grounds, might occasion so great a jealousy, of this power, and so general a prejudice against it, as to lead to measures, which might end in the total overthrow of the independence of the judiciary, and with it this best preservative of the Constitution. The validity of a law ought not then to be questioned, unless it is so obviously repugnant to the Constitution, that when pointed out by the judges, all men of sense and reflection in the community may perceive the repugnancy. By such a cautious exercise of this judicial check, no jealousy of it will be excited, the public confidence in it may be promoted, and its salutary effects be justly and fully appreciated. . . . [The court negatived both grounds of defence. Rule absolute.'] ^ ' In 1 811 ,1 Chief Justice Tilghman, of Penusylvania, while asserting the power of the court to hold laws unconstitutional, but declining to exercise it in a particular case, stated the rule of administration as follows : " For weighty reasons, it has been assumed as a principle in constitutional construction by the Supreme Court of the United States, by this court, and every other court of reputation in the United States, that an Act of the Legisla- ture is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt." In Ogden v. Saunders, 12 Wheat. 213 (1827), Mr. Justice Washington, after remarking that the question vras a doubtful one, said : " If I could rest my opinion in favor of the constitutionality of the law ... on no other ground than this doubt, so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the . . . legislative body by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond all reasonable doubt. This has always been the language of this court when that subject has called for its decision ; and I know it ex- presses the hoHest sentiments of each and every member of this bench." In the Sink- ing Fund Cases, 99 U. S. 700 (1878), Chief Justice Waite, for the court, said: "This declaration [that an Act of Congress is unconstitutional] should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule." In Wellington et al., Petitioners, 16 Pick. 87 (1834), Chief Justice Shaw, for the court, remarked that it was proper " to repeat what has been so often suggested by courts of justice, that when called upon to pronounce the invalidity of an Act of legislation {they !• Commonwealth v. Smith, 4 Bin. 117. 156 BYKNE V. STEWART. [CHAP. I. will] never declare a statute void unless the nullity and invalidity of the Act are placed, in their judgment, beyond reasonable doubt." On this subject see Cooley, Const. Lim., 6th ed. 216, and Thayer's Origin and Scope of the American Doct. of Const. Law, 12-30. In the last-named pamphlet, the follow- ing passage is found at page 27 : — " Finally, let me briefly mention one or two discriminations which are often over- looked, and which are important in order to a clear understanding of the matter. Judges sometimes have occasion to express an opinion upon the constitutionality of a statute, when the rule which we have been considering has no application, or a dif- ferent application from the common one. There are at least three situations which should be distinguished: (1) where judges pass upon the validity of the acts of a co-ordinate department j (2) where they act as advisers of the other departments; (3) where, as representing a government of paramount authority, they deal with acts of a department which is not co-ordinate. " (1) The case of a court passing upon the validity of the act of a co-ordinate de- partment is the normal situation, to which the previous observations mainly apply. I need say no more about that. " (2) As regards the second ca.se, the giving of advisory opinions, this, in reality, is not the exercise of the judicial function at all, and the opinions thus given have not the quality of judicial authority.' A single exceptional and unsupported opinion upon this subject, in the State of Maine, made at a time of great political excitement,'' and a doctrine in the State of Colorado, founded upon considerations peculiar to the Con- stitution of that State,^ do not call for any qualification of the general remark, that such opinions, given by our judges, — like that well-known class of opinions given by the judges in England when advising the House of Lords, which suggested our own practice, — are merely advisory, and in no sense authoritative judgments.* Under our constitutions such opinions are not generally given. In the six or seven States where the constitutions provide for them, it is the practice to report these opinions among the regular decisions, much as the responses of the judges in Queen Caroline's Case, and in MacNaghten's Case, in England, are reported, and sometimes cited, as if they held equal rank with true adjudications. As regards such opinions, the scruples, cautions, and warnings of which I have been speaking, and the rule about a reasonable doubt, which we have seen emphasized by the courts as regards judicial decisions upon the constitutionality of legislative Acts, have no application. What is asked for is the judge's own opinion. " (3) Under the third head come the questions arising out of the existence of our double system, with two written constitutions, and two governments, one of which, within its sphere, is of higher authority than the other. The relation to the States 1 Commonwealth v. Green, 12 Allen, 163 ; Taylor v. Place, 4 R. I. 362. See Thayer's' Memorandum on Advisory Opinions (Boston, 1885), Jameson, Const. Conv., 4th ed.. Appendix, note e, 667, and a valuable article by H. A. Dubuque, in 24 Am. Law Rev. 369, on " The Duty of Judges as Constitutional Advisers." ^ Opinion of Justices, 70 Me. .583 (1880). Contra, Kent, J., in 58 Me. 573 (1870) : "It is true, unquestionably, that the opinions given under a requisition like this have no judicial force, and cannot bind or control the action of any officer of any department. They have never been regarded as binding on the body asking for them." And so Tapley, J., lb. 615: "Never regarding the opinions thus formed as conclusive, but open to review upon every proper occasion ; " and Libby, J., in 72 Me. 562-563 (1881 ) : "Inasmuch as any opinion now given can have no effect if the matter should be judi- cially brought before the court by the proper process, and lest, in declining to answer, I may omit the performance of a constitutional duty, I wiU very briefly express my opinion upon the question submitted." Walton, J., concurred; the other judges said nothing on this point. * In re Senate BiU, 12 Colo. 466, — an opinion which seems to me, in some respects, ill considered. * Macqueen's Fract. Ho. of Lords, 49, 50. SECT. II.] THORPE V. EUTLAND AND BURLINGTON RAILROAD. 157 In Thorpe v. Rutland & Burlington B. B. Co., 27 Vt. 140 (1854), there was an action on the case to recover damages for sheep of the plaintiff killed by one of the defendants' locomotives, upon their railroad track, where said sheep had escaped in consequence of there being no cattle-guard at a farm-crossing, across the defendants' railroad on the plaintiffs land in Charlotte. The only question reserved at the trial in the County Court was, whether the defendants were bound by the provi- sion in the general raih-oad Act of 1849, requiring railroad companies to construct and maintain cattle-gnards ; there being no such obligation imposed upon the defendants by their charter, which was granted in 1843. In holding that they were so bound, the court (Redfield, C. J.) said : " The present case involves the question of the right of the legis- lature to require existing railways to respond in damages for all cattle killed or injured by their trains until they erecf suitable cattle-guards of the paramount government as a whole, and its duty in all questions involving the powers of the general government to maintain that power as against the States in its fulness, seem to fix also the duty of each of its departments ; namely, that of main- taining this paramount authority iu its true and just proportions, to be determined by itself. If a State legislature passes a law which is impeached in the due course of liti- gation before the national courts, as being in conflict with the supreme law of the land, those courts may have to ask themselves a question different from that which would be applicable if the enactments were those of a co-ordinate department. When the question relates to what is admitted not to belong to the national power, then whoever construes a State constitution, whether the State or national judiciary, must allow to that legislature the full range of rational construction. But when the question is whether State action be or be not conformable to the paramount constitution, the su- preme law of the land, we have a different matter in hand. Fundamentally, it involves the allotment of power between the two governments, — where the line is to be drawn. True, the judiciary is still debating whether a legislature has transgressed its limit ; but the departments are not co-ordinate, and the limit is at a different point. The judiciary now speaks as representing a paramount constitution and government, whose duty it is, in all its departments, to allow to that constitution nothing less than its just and true interpretation to be fixed by itself ; and having fixed this, to guard it against any inroads from without. " I have been speaking of the national judiciary. As to how the State judiciary should treat a question of the conformity of an Act of their own Legislature to the paramount constitution, it has been plausibly said that they should be governed by the same rule that the Federal courts would apply. Since an appeal lies to the Federal courts, these two tribunals, it has been said, should proceed on the same rule, as being parts of one system. But under the Judiciary Act an appeal 5oes not lie* from every decision; it only lies when the State law is sustained below. It would perhaps be sound on general principles, even if an appeal were allowed in all cases, here also to adhere to the general rule that judges should follow any permissible view which the coordinate legislature has adopted. At auy rate, under existing legislation it seems proper in the State court to do this, for the practical reason that this is necessary in order to preserve the right of appeal." ' — Ed. 1 Gibson, J., in Eakin v. Raub, 12 S. cSb E. 357. Compare lb. 352. The same result is reached by the court, on general principles, in The Tonnage Tax Cases, 62 Pa. St. 286 : " A case of simple doubt should he resolved favorably to the State law, leaving the correction of the error, if it be one, to the Federal judiciary. The presumption in favor of a co-ordinate branch of the State government, the relation of her courts to the State, and, above all, the necessity of preserving a financial system so vital to her wel- fare, demand this at onr hands." — Agnew, J., for the court. 158 THORPE V. RUTLAND AND BURLINGTON RAILROAD. [CHAP. L at farm-crossings. No question could be made where such a requisition was contained in the charter of the corporation, or in the general laws of the State at the date of the charter. But where neither is the case, it is claimed that it is incompetent for the legislature to impose such an obligation by statute, subsequent to the date of the charter. It has never been questioned, so far as I know, tliat the American legislatures have the same unlimited power in regard to legislation which resides in the British Parliament, except where tliey are restrained bj- written con- stitutions. That must be conceded, I thinlc, to be a fundamental prin- ciple in the political organizations of the American States. "We cannot well comprehend how, upon principle, it should be otherwise. The people must of course possess all legislative power original!}'. The^- have committed this ia the most general and unlimited manner to the several State legislatures, saving only such restrictions as are imposed hy the Constitution of the United States, or of the particular State in question. I am not aware that the Constitution of this State contains any restriction upon the legislature in regard to corporations, unless it be that where ' any person's property is taken for the use of the public, the owner ought to receive an equivalent in money ; ' or that there is any such restriction in the United States Constitution, except that pro- hibiting the States from ' passing anj- law impairing the obligation of contracts.' It is a conceded point, upon all hands, that the Parliament of Great Britain is competent to make an\- law binding upon corpora- tions, however much it may increase their burdens or restrict their powers, whether general or organic, even to the repeal of their charters. This extent of power is recognized in the case of Dartmo\i,th College v. Woodward^ 4 Wheaton, 518, and the leading authorities are there re- ferred to. Any requisite amount of authorit}-, giving this unlimited power over corporations to the British Parliament, may readily be found. And i^, as we have shown, the several State legislatures have the same extent of legislative powei-, with the limitations named, the inviolability of these artificial bodies rests upon the same basis in the American States with that of natural persons, and there are, no doubt, many of the rights, powers, and functions of natural persons which do not come within legislative control. Such, for instance, as are purely and exclusivel}- of private concern, and in which the bod^' politic, as such, have no special interest." -^ . 1 "The legislative power of a State extends to everything within the sphere of such power, except as it is restricted by the Federal Constitution or that of the State." — SwATNE, J. (for the court), in Township v. Talcott, 19 Wall. p. 576 (1873). "The State does not act by its people in their collective capacity, but through such political agencies as are duly constituted and established. The legislative power is the supreme authority except as limited by the Constitution of the State, and the sovereignty of the people is exercised through their representatives in the legislature, unless by the fundamental law power is elsewhere reposed." — Fdllek, C. J. (for the court), in McPheraon v. Blacker, 146 U. S. p. 25. " Irrespective of the operation of the Federal Constitution and restrictions asserted to be inherent in the nature of American institu- tions, the general rule is that there are no limitations upon the legislative power of the legislatoie of a State, except those imposed by its written Constitution." — Fitli-eb, C. J. (for the court), in Giozma v. Tieman, 148 U. S. p. 661. — Ed. SECT. II.] TAYLOR V. PLACE. 159 TAYLOR V. PLACE. Supreme Court of Rhode Island. 1856. [4 R. I. 324.] 1 James TillingJiast and Bradley, for the plaintiffs ; Currey, for the defendants. Ames. C. J. ... In some cases, it is difficult to draw and apply the precise line separating the different powers of government which, under our political systems, Federal and State, are, without exception, care- fully distributed between the legislative, the executive, and the judicial departments. To some extent, and in some sense, each of the powers appropriated to diflFerent departments in the above distribution must be exercised by every other department of the government, in order to the proper performance of its duty. As illustrated by Mr. Justice McLean, in 'giving the judgment of the Supreme Court of the United States, in the case of Watkins v. Holman et al., 16 Pet. 60, 61. " The executive, in acting upon claims for services rendered, may be said to exercise, if not in form, in substance, judicial power. And so a court, in the use of a discretion essential to its existence, by the adoption of rules or otherwise, may be said to legislate. A legislature, too, in pro- viding for the payment of a claim, exercises a power in its nature judicial ; but this is coupled with the paramount and remedial power." In an earlj- case, which we shall have occasion hereafter to use for another purpose, the question came before the courts of the United States, under the clause of the Constitution of the United States dis- tributing the different powers of the Federal government amongst its different departments, whether a power lodged, by an Act of Congress, in the Circuit Courts of the United States, to inquire into and to take evidence of the claims of invalid pensioners, and to transmit the result of their inquiries to the Secretary of War, for his action and that of Congress thereon, was judicial power, and so the exercise of it impera- tive upon the Circuit judges. The unanimous opinion of the Circuit Court for the district of New York, tlien consisting of Jay, Chief Justice, Gushing, Justice, and Duane, District Judge ; of the Circuit Court for the district of Pennsylvania, then consisting of Wilson and Blair, Jus- tices, and of Peters, District Judge ; and of the Circuit Court for the district of North Carolina, then consisting of Iredell, Justice, and of Sitgreaves, District Justice, — was, that the power thus vested was not judicial, and that consequently they were not bound to exercise it." The reasons given by them were, in substance, that the Act of Congress did not contemplate this power as judicial, inasmuch as it subjected the decisions of the courts, in the matter to which it related, to the consid- eration and suspension of the Secretary of War, and again to the revision 1 The statement of facte and a part of the case are omitted. 2 These were not judicial utterances. See ante, p. 105, n. — Ed. 160 TAYLOR V. PLACE. [CHAP. I. of Congress ; whereas, bj' the Constitution, neither the Secretary of War, nor anj- other executive officer, nor even the legislature, were author- ized to sit, as a court of errors, on the judicial acts or opinions of the courts of the United States. The judges composing the Circuit Court of New York, however, consented, on account of the benevolence which had dictated the passage of the pension Act in question, person- ally to execute the duties imposed upon them in the character of commissioners appointed bj* official instead of personal descriptions ; deeming themselves at liberty, as individuals, to accept or decline the offli;e thus tendered to them. See the opinions in the note illustrating Hayhurris Case, 2 Dallas, 410, 411, 412, and in 1 Curtis's Decis. Sup. Ct. U. S. 9, 10, and 11. In Watkins v. Holman et al., before quoted, the question arose before the Supreme Court of the United States, under the Constitution of Alabama, containing a like distribution of powers with our own, whether an Act of the Legislature of that Statef authorizing an administratrix residing in another State, to sell and con- vej', by certain attorneys named in the Act, the real estate of her in- testate husband in Alabama, for the paj-ment of his debts, her attornej-s giving bond with sureties for the faithful payment of the proceeds of sale to the administratrix, ' " to be appropriated to the payment of the debts of the deceased," was a judicial Act, and so within the inhibition of the Constitution of Alabama. The court held the Act to be valid, as the exercise, not of judicial, but of legislative power; the Act pro- viding a special remed\', merely, for a case which, on account of its cir- cumstances, though within the spirit, was not within the letter of the General Statute of Alabama, which directed the mode in which the real estate of a deceased debtor should be sold and applied to the payment of his debts. Again, in the late case of United States v. Ferreira, 13 Howard, 40, 48, the same court held that an Act of Congress, empow- ering the district judge of Florida, under the treaty with Spain of 1819, commonlj' called the Florida treaty, to examine and adjudge claims for injuries made bj- the Spanish inhabitants of Florida, provided for by a clause in that treaty-, and to report his decisions, if favorable to the claimants, with the evidence, to the Secretary of the Treasurj', for his discretionary action thereon, did not confer upon the District Court of Florida judicial power, in the sense of the Constitution of the United States, in that matter ; and hence, that no appeal from the award of the judge, thus acting merely as a commissioner, could be brought to the Supreme Court of the United States. The court followed precisely the line of reasoning which must have been adopted by the judges in HayhurrHs Case, in 1792, as illustrated by the opinions given in the note to that case, which the court recite at large. In the opinion of the court, delivered b\' the present venerable Chief Justice, he says : " The powers conferred by these Acts of Congress upon the judge, as well as the secretarj', are, it is true, judicial in their nature ; for judg- ment and discretion must be exercised by both of them. But it is nothing more than the power ordinarily given by law to a commissioner SECT. II.] TAYLOR V. PLACE. 161 appointed to adjust claims to lands or mone3', under a treaty ; or special powers to inquire into or decide any otlier particular class of controversies in wliich the public or individuals may be concerned. A power of this description may constitutionally be conferred on a secretary as well as a commissioner, but is not judicial in either case, in the sense in which judicial power is granted by the Constitution, to the courts of the United States ; " and see American his Go. v. Carter, 1 Peters, 511 ; Benner v. Porter, 9 Howard, 235 ; United States v. Ritchie, 17 Howard, 533, 534. Upon the same principle, the decisions of the vari- ous State auditors of this and other States, or even of the Court of Claims, recently- established at Washington, though this latter sits as a court, takes and receives evidence, and hears counsel as a court, sub- ject, as the\- all ai'e, to the revision and control of their respective legis- latures or of Congress, are not judicial decisions, in the sense of the Constitution of the States, or of the United States. They may, and the latter does, task high judicial capacity, learning, and experience, and is called a court ; but after all, these officers, and the members of this tribunal, sit as auditors only, and not as judges, in any constitu- tional sense. " That the auditing of tlie accounts of a receiver of pub- lic moneys," saj-s Mr. Justice Curtis, in recently delivering the opinion of the Supreme Court in Murray's lessee et al. v. Hbbohen Land and Improvement Company, 18 Howard, 28Q, " may be, in an enlarged sense, a judicial act, must be admitted. So are those administrative duties, the performance of which involves an inquiry into the existence of facts, and the application to them of rules of law. In this sense, the act of the President in calling out the militia, under the Act of 1795, or of a commissioner, who makes a certificate for the extradition of a crim- inal, under a treatj', is judicial. But it,is not sufficient to bring such matters under the judicial power, that they involve the exercise of judgment upon law and fact." One of the points decided in this case was, that the auditing of an account, and ascertaining a balance, by the first Auditor of the Treasury of the United States, and the issue of a distress warrant by the Solicitor of the Treasury, under an Act of Con- gress, b}' virtue of and under which the lands of a defaulting collector of the customs were seized and held to satisf3" the balance ascertained by the auditor to be due to the treasurj', were not acts of judicial power, in the sense of the Constitution ; that they might, therefore, under the law, be Constitutionally, and with effect, done by 'those officers, although neither of them constituted a court, nor were so connected with a court as to perform an}', even of the ministerial duties, which arise out of judicial proceedings. Murray's lessee et al. v. Hdbohen Land and Improvement Company, 18 Howard, 275. On the other hand, it may safely be said, that to hear and decide adversary suits at law and in equity, with the power of rendering judg- ments and entering up decrees according to the decision, to be executed by the process and power of the tribunal deciding, or of another tribunal acting under its orders and according to its direction, is the exercise of VOL. I. — 11 162 TAYLOK V. PLACE. [CHAP. I. judicial power, in the constitutional sense ; and that it is so» whether the decision be final, or subject to reversal on error or appeal. It is preciselj- thus, that the great exemplar of constitutional law, the Consti- tution of the United States, defines this power ; for, after vesting, b^- the first section of its third article, " the judicial power of the United States," in " one supreme court, and in such inferior courts as Con- gress maj-, from time to time, order and establish ; " and after, in the same section, fixing the tenure and mode of compensating the judges of the courts of the United States ; it proceeds, in the second section of the same article, to define this power, by stating the cases and controver- sies in law and equitj-, and of admiralty and maritime jurisdiction, to which, from the nature of the questions involved in them, or of the prin- ciples of decision to be applied to them, or from the character or citi- zenship of the parties to them, or to be affected hy them, this power, whether original or appellate, shall extend. In Osborn v. The Bank of the United States, 9 Wheaton, 319, Chief Justice Marshall, in deliv- ering, the opinion of the court, after saying that the second article of the Constitution vests the whole executive power in the President, and that the third article, among other things, declares, " that the judicial power shall extend to all cases in law and equitj-, arising under this Constitu- tion, the laws of the United States, and treaties made, or which shall be made under their authority," thus speaks of the effect and extent of the latter : " This ^clause enables the judicial department to receive ju- risdiction to the full extent of the Constitution, laws, and treaties of the United States, when anj- question respecting them shall assume such a form that the judicial power is capable of acting upon it. That power is capable of acting onlj- when the subject is submitted to it bj' a partj' who asserts his rights in the form prescribed bj- law. It then becomes a case ; and the Constitution declares that the judicial power shall extend to all cases arising under the Constitution, laws, and treaties of the United States." The judicial power is exercised in the decision of cases ; the legislative, in making general regulations, by the enactment of laws. The latter acts from considerations of public policj' ; the former is guided by the pleadings and evidence in the case. Per Mr. Justice McLean. State of Pennsylvania v. Wheeling ( " The question whether the Act under consideration is a valid exercise of legislative power is to be determined solely by reference to constitutional restraints aud prohibi- tions. The legislative power has no other limitation. If an Act can stand when brought to the test of the Constitution the question of its validity is at an end, and neither the executive or judicial department of the government can refuse to recognize or enforce it. The theory that laws may be declared void when deemed to be opposed to natural justice and equity, although they do not violate any constitutional provision, has some support in the dicta of leariipd judges, but has not been approved, so far as we know, by any authoritative adjudication, and is repudiated by numerous authori- ties. Indeed, under the broad and liberal interpretation now given to constitutional guaranties, there can be no violation of fundamental rights by legislation which will not fall within the express or implied prohibition and restraints of the Constitution, SECT. II.] LOAN ASSOCIATION V. TOPEKA. 169 and it is unnecessary to seek for principles outside of the Constitution, under which such legislation may be condemned. . . . " Admitting, as we do, the soundness of this view, and fully approving it, we come back to the proposition that no law can be pronounced invalid, for the reason simply that it violates our notions of justice, is oppressive and unfair in its operation, or be- cause, in the opinion of some or all of the citizens of the State, it is not justiiied by public necessity, or designed to promote the public welfare. We repeat; if it violates no constitutional provision, it is valid and must be obeyed. The remedy for unjust or unwise legislation, not obnoxious to constitutional objections, is to be found in a change by the people of their representatives, according to the methods provided by the Constitution." The same principle is affirmed in People v. Gillson, 109 N. Y. 398. " The rule of law upon this subject appears to be, that, except where the Constitu- tion has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the represeutar tives of the people. If this fail, the people in their sovereign capacity can correct the evil ; but courts cannot assume their rights. The judiciary can only arrest the execu- tion of a statute when it conflicts with the Constitution. It cannot run a race of opin- ions upon points of right, reason, and expediency with the law-making power. Any legislative Act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced, unless restrictions upon the legislative authority can be pointed out in the Constitution, and the case shown to come within them. . . . " The accepted theory upon this subject appears to be this : In every sovereign State there resides an absolute and uncontrolled power of legislation. In Great Britain this complete power rests in the Parliament ; in the American States it resides in the people themselves as an organized body politic. But the people, by creating the Constitution of the United States, have delegated this power as to certain subjects, and under certain restrictions, to the Congress of the Union; and that portion they cannot resume, ex- cept as it may be done through amendment of the national Constitution. For the exercise of the legislative power, subject to this limitation, they create, by their State Constitution, a legislative department upon which they confer it ; and granting it in general terms, they must be understood to grant the whole legislative power which they possessed, except so far as at the same time they saw fit to impose restrictions. While, therefore, the Parliament of Britain possesses completely the absolute and un- controlled power of legislation, the legislative bodies of the American States possess the same power, except, first, as it may have been limited by the Constitution of the United States ; and, second, as it may have been limited by the Constitution of the State. A legislative Act, cannot, therefore, be declared void, unless its conflict with one of these two instruments can be pointed out." Cooley, Const. Lim. (6th ed.) ' 200. In Loan Association v. Topeka, 20 Wall. 655, 662 (1874) Miller, J. (for the court), on error to the United States Circuit Court for the District of Kansas, in holding a State statute invalid as imposing taxation for a merely private purpose, said : " We have referred to this history of the contest over aid to railroads by taxation, to show that the strongest advocates for the validity of these laws never placed it on the ground of the unlimited po.wer in the State legislature to tax the people, but conceded that where the purpose for which the tax was to be issued could no longer be justly claimed to have this public character, but was purely in aid of private or personal objects, the law authorizing it was beyond the legislative power, and was an unauthorized invasion of private right. Olcolt v. Supervisors, 16 Wallace, 689; People v. Salem, 20 Mich. 452 ; Jenkins v. Andover, 103 Mass. 94 ; Dillon on Municipal Corporations, § 587 ; 2 Redfield's Laws of Railways, 398, rule 2. It must be conceded that there are such rights in every free government beyond the control of the State. A government 170 CHICAGO, ETC. RAILWAY CO. V. WELLMAN. [OHAP. L which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. The theory of our governments. State and National, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these govern- ments, are all of limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of in- dividual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other .should be so no longer, but that A. should thereafter be the hus- band of C, and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B. Whiting v. Fond du Lac, 25 Wis. 188 ; Cooley on Constitutional Limitations, 129, 175, 487 ; Dillon on Municipal Corporations, § 587." In Munn v. Illinois, 94 U. S. 113, 124 (1876), Waite, C. J. (for the court) said: " When the people of the United Colonies separated from Great Britain, they changed the form, but not the substance, of their government. They retained for the purposes of government all the powers of the British Parliament, and through their State con- stitutions, or other forms of social compact, undertook to give practical effect to such as they deemed necessary for the common good and the security of life and property. All the powers which they retained they committed to their respective States, unless in express terms or by implication reserved to themselves. Subsequently, when it was found necessary to establish a national government for national purposes, a part of the powers of the States and of the people of the States was granted to the United States and the people of the United States. This grant operated as a; further limitation upon the powers of the States, so that now the governments of the States possess all the powers of the Parliament of England, except such as have been delegated to the United States or reserved by the people. The reservations by the people are shown in the prohibitions of the constitutions." In Chic. ^ Grand Tr. Ry. Co. v. Wellman, 143 U. S. 389 (1891), on error to the Supreme Court of Michigan, a question involving the validity, under the Constitution of the United States, of a State law regulating the charges of a railroad corporation, had been raised on an agreed statement of facts, supplemented by the evidence of two witnesses. In sustaining the decision of the State court, which had refused to hold the law unconstitutional, the Supreme Court of the United States (Bkewer, J.) said : " The Supreme Court of Michigan in passing upon the present case, felt constrained to make this observation : ' It being evident from the record that this was a friendly suit between the plaintiff and the defendant to test the constitutionality of this legislation, the Attorney-General, when it was brought into this court upon writ of error, very properly interposed and secured counsel to represent the public interest. In the stipu- lation of facts or in the taking of testimony in the court below, neither the Attorney- General nor any other person interested for or employed in behalf of the people of the State took any part. What difference there might have been in the record had the people been represented in the court below, however, under our view of the case, is not of material inquiry.' " Counsel for plaintiff in error, referring to this, does not question or deny, but says : ' The Attorney-General speaks of the case as evidently a friendly case, and Justice Morse, in his opinion, also so speaks of it. This may be conceded ; but what of it ? There is no ground for the claim that any fraud or trickery has been practised in presenting the testimony.' " We think there is much in the sugge-stiou. The theory upon which, apparently, this suit was brought is that parties have an appeal from the legislature to the courts ; SECT. II.J NOTE. 171 NOTE. I. Administrative Rules in Constitutional Law. " The following general propositions," it is remarked by Cooley (Principles of Con- stitutional Law, 2d ed. 152),i "will be found to state the -obligations of duty and of forbearance for such cases which are generally recognized. " 1 . The duty to pass upon a question of constitutional law may devolve upon a court of any grade, and of either the Federal or the State jurisdiction. Wherever the -qnes- tion can arise in court of the conformity of a statute to the Constitution, the court to whom the question is addressed must in some manner dispose of it, and the power of the court to' apply the law to the case necessarily embraces the power to determine what law controls. In the absence of authoritative precedents, there can be no other test of this than the judgment of the court. The validity of a Federal statute may therefore be a necessary question for consideration in a State court, and that of a State statute in a Federal court. Nevertheless, when the court to whom the question is addressed is not the court of last resort in respect thereto, it may well be expected to proceed with more than ordinary caution and hesitation, and to abstain altogether from declaring a statute invalid unless in the clearest cases, especially if, without serious detriment to justice, the decision can be delayed until the Superior Court can have opportunity to pass upon it. There may be cases where, by inadvertence or accident, a bill which has gone througli all the forms required for valid legislation is, neverthe- less, clearly and without question invalid ; but except in such cases the spectacle of an and that the latter are given an immediate and general supervision of the constitu- tionality of the Acts of the former. Such is not true. Whenever, in pursuance of an honest and actual antagonistic assertion, of rights by one individual against another, there is presented a question involving the validity of any Act of any Legislature, State or Federal, and the decision necessarily rests on the competency of the legisla- ture to so enact, the court must, in the exercise of its solemn duties, determine whether the Act be conistitutional or not ; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity, in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legisla- ture could transfer to the courts au inquiry as to the constitutionality of the legislac tive Act. " These observations are pertinent here. On the very day the Act went into force the application for a ticket is made, a suit commenced, and within two months a judg- ment obtained in the trial court ; a judgment rendered not upon the presentation of all the facts from the lips of witnesses, and a full inquiry into them, but upon an agreed statement which precludes inquiry into many things which necessarily largely enter into the determination of the matter in controversy. A single suggestion in this direction ; It is agreed that the defendant's operating expenses for 1888 were $2,404,- 516.54. Of what do these operating expenses consist ? Are they made up partially of extravagant salaries ; fifty to one hundred thousand dollars to the president, and in like proportion to subordinate officers t Surely, before the courts are called upon to adjudge an Act of the Legislature fixing the maximum passenger rates for railroad companies to be unconstitutional, on the ground that its enforcement would prevent the stockholders from receiving any dividends on their investments, or the bondholders any interest on their loans, they should be fully advised as to what is done with the receipts and earnings of the company ; for if so advised, it might clearly appear that a prudent and honest management would, within the rates prescribed, secure to the bondholders their interest, and to the stockholders reasonable dividends." — Ed. 1 Quoted by permission of the author, and of the publishers, Messrs. Little, Brown, and Co., of Boston. — Ed. 172 NOTE. [chap. L inferior magistrate, having merely police or other limited jurisdiction, assuming to pass judgment upon the legislation of his State or country, and declare it invalid, can only be ludicrous.' " 2. The judicial sense of propriety and of the importance of the occasion will gener- ally incline the court to refuse a consideration of a constitutional question without the presence of a full bench of judges. With many courts this is a rule to which few exceptions are admitted, and those only which seem to be imperative. " 3. Neither, as a rule, will a court express an opinion adverse to the validity of a statute, unless it becomes absolutely necessary to the determination of a cause before it. Therefore, in any case where a constitutional question is raised, if the record pre- sents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterialto the case, the court will adopt that course, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when, con- sequently, a decision upon such question will be unavoidable. This course has not always been followed ; but it has seldom occurred that a constitutional question has been considered settled, or been allowed to remain without further dispute and ques- tion where the opinion given upon it was rendered in a case not necessarily requiring it. Want of jurisdiction of the particular case is always reason why the court should abstain from expressing opinions on other questions which parties may attempt to raise. " 4. The court will not listen to an objection made to the constitutionality of an Act hy one whose rights are not affected by it, and who consequently can have no interest in defeating it. For example, one who has received compensation for property appro- priated by statute to a public use will not be suffered afterwards to dispute the consti- tutional validity of the statute. The statute is assumed to be valid until some one complains of it whose rights it invades. The power of the court can be invoked only when it is found necessary to secure and protect a party before it against an unwar- ranted exercise of legislative power to his prejudice. " 5. Nor can a court declare a statute unconstitutional and void when the objection to it is merely that it is unjust and oppressive, and violates rights and privileges of the citizen, unless it can be shown that such injustice is prohibited, or such rights and privileges guaranteed, by the Constitution. The propriety or justice or policy of legis- lation, within the limits of the Constitution, is exclusively for the legislative depart- ment to determine ; and the moment a court ventures to substitute its own judgment for that of the legislature, it passes beyond its legitimate authority, and enters a field where it would be impossible to set limits to its interference, except as should be pre- scribed in its own discretion. The protection against unwise or oppressive legisla- tion, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil, but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It cannot run a race of opinions upon points of rights reason, and expediency, with the law-making power. The question of the validity of a statute must always be one of legislative competency to enact it ; not one of policy, propriety, or strict justice. " 6. Nor can a statute be declared unconstitutional merely because in the opinion of the court it violates one or more of the fundamental principles of republican liberty, 1 Some courts have intimated that only the superior courts should assume to deny validity to a statute. Ortman v. Greenman, 4 Mich. 291. Compare Maiiberry v. Kelly, 1 Kans. 116. [It is a rule of practice in some States, that a single judge shall never hold a statute invalid. In Rhode Island (Pub. St. R. I., 1882, c. 220), it is pro- vided that in cases before a magistrate or court other than the Supreme Court, on an objection to the constitutionality of a legislative Act, the court or magistrate shall hold the Act valid, and if judgment goes against the party raising this objection, the case shall be certified to the Supreme Court for its decision. An instance of this pro- cedure is found in Com. v. Amery, 12 R. I. 64. — Ed.] SECT. II.] NOTE. 173 unless it shaU be found that those principles are placed beyond legislative encroach- ment by the provisions of the Constitution itself. The principles of republican gov- ernment are not a set of inflexible rules, vital aud active iu the Constitution even when unexpressed ; but they are subject to variation and modiiicatiou from motives of policy and public necessity, and it is only in those particulars in which experience has demonstrated that any departure from the settled course must work injustice and con- fusion, that it is customary tp incorporate them in the Constitution in such a way as to make them definite rules of action and decision. The following are illustrations. The principle that taxation and representation go together is important aud valuable, and should never be lost sight of in legislation ; but, as commonly understood, it can never be applied universally without admitting every person to the elective franchise ; for taxes in some form fall upon all, — the rich and the poor, the infant and the adult, the male and the female, and Federal taxes reach the unrepresented Territories as well as the represented States. So the principle that local affairs shall be managed in local districts, and that these shall choose their own local officers, constitutes one of the chief excellencies of our system of government ; but in applying it the difficulty is at once encountered of determining what are local concerns and what general ; and it may perhaps be found in a given case tliat the concerns that are set apart as local, if neglected or imperfectly performed, subject the whole State to embarrassment, so that State intervention becomes necessary. And it is obvious that, wherever a recog- nized principle of free government requires legislation for its practical application aud enforcement, the body that passes laws for the purpose must determine, in its dis- cretion, what are the needs of legislation and what its proper limits. The courts can- not take such principles as abstract rules of law, and give them practical force. " 7. When a question of Federal constitutional law is involved, the purpose of the Constitutipn, and the object to be accomplished by any particular grant of power, are often most important guides in reaching the real intent ; and the debates in the Consti- tutional Convention, the discussions in the Federalist and in the conventions of the States, are often referred to as throwing important light on clauses in the Constitur tion which seem blind or of ambiguous import. We may discover from these what the general drift of opinion was as to the division line between Federal and State power on many subjects, and we can sometimes judge from that whether a particular authority lies on one side of the line or on the other. But we shall be misled if we attempt in this manner to judge of State legislative power when the limitations of the Federal Constitution are not in question. We cannot test the validity of any State statute by a general spirit which is supposed to pervade the State Constitution, but IS not expressed in words. Presumptively, when the people of the State, by their Constitution, call into existence a, legislative department, and endow it with the function of making laws, they confer upon it the full and complete legislative power,— as full and complete as the people, in the exercise of sovereignty, could themselves have wielded it,— subject onlv to such restrictions as were by the same mstrnment imposed. 'The law-making power of the State recognizes no restramts, and is bound by none except such as are imposed by the Constitu- tion. That instrument has been aptly termed a legislative Act by the people them- selves, in their sovereign capacity, and is therefore the paramount law. Its object IS, not to grant legislative power, but confine and restrain it. Without the consti- tutional hmitations, the power to make laws would be absolute. These limitations are created and imposed by express words, or arise by necessary implication. The leading feature of the Constitution is the separation and distribution of the powers of the gov- ernment. It takes care to separate the executive, legislative, and judicial powers, and to define their limits. The executive can do no legislative act, nor the legislature any executive act, and neither can exercise judicial authority.' Presumptively, therefore, if an Act of the legislative department is not an encroachment upon executive or judi- cial power, it is valid. To show its invalidity, it is necessary to point out some partic- ular in which, either in form or substance, it is inconsistent with the Constitution. The inconsistency may consist, either, (1 ) in the failure to observe some constitutional form which is made essential to a valid enactment, such as the taking of the final vote thereon by yeas and nays when the Constitution requires it; or (2) in the disregard of 174 NOTE. [chap. I. an expiess prohibition, as where it consists in a special charter of incoi'poration when the Constitution forbids incorporation except under general laws ; or (3) in the dis- regard of some fundamental riglit declared in the bill of rights, as would be a statute compelling support of sectarian worship or schools when the Constitution proclaims religious liberty. And in all these cases it is not the spirit of the Constitution that must be the test of validity, but the written requirements, proliibitious, and guar- anties of the Constitution itself. " 8. A statute may sometiihes be valid in part and invalid in other particulars. This often happens under State constitutions that require an Act to contain but one object which shall be expressed in the title. If in such a case the Act embraces two objects while the title expresses but one, the Act will be unconstitutional and void as to the cue not so expressed. So in the absence of such a requirement the Act might be void as to one object because the legislation attempted was expressly forbidden by the Consti- tution, while in other particulars it was plainly within the legislative competency. The general rule therefore is, that the fact that part of a, statute is unconstitutional does not justify the remainder being declared invalid also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be pre- sumed the legislature would have passed the Act otherwise than as a whole. It is im- material how closely the valid and invalid provisions are associated in the Act; they may even be contained in the same section, and yet be perfectly distinct and separable, so that the one may stand though the other fall. If, when the unconstitutional por- tion is stricken out, that which remains is complete in itself, and capable of being exe- cuted in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. But if the intent of the Act is to accom- plish a single purpose only, and some provisions are void, the whole must fail unless sufficient remains to effect the object without the invalid portion. And if they nre so mutually connected with and dependent on each other as conditions, considerations, or compensations, as to warrant the belief that the legislature intended them as a whole, and that, if all could not he carried into effect, the legislature would not pass the resi- due independently, then, if some parts are unconstitutional, all the provisions that are thus dependent, conditional, or connected must fall with them. " 9. A doubt of the constitutional validity of a statute is never snfllcient to warrant its being set aside. ' It is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be con- sidered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.' ' It is but a decent respect dne to the wisdom, the integrity, and the patriot- ism of the legislative body by which any law' is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond all reasonable doubt.' To be in doubt, therefore, is to be resolved, and the resolution must support the law. " This course is the opposite to that which is required of the legisilature in consider- ing the question of passing a proposed law. Legislators have their authority meas- ured by the Constitution ; they are chosen to do what it permits, and nothing more, and they take solemn oath to obey and support it. When they disregard its provisions, they usurp authority, abuse their trust, and violate the promise they have confirmed by an oath. To pass an Act when they are in doubt whether it does not violate the Constitution, is to treat as of no force the most imperative obligations any person can assume. A business agent who would deal in that manner with his principal's busi- ness would be treated as untrustworthy ; a witness in court who would treat his oath thus lightly, and affirm things concerning which he was in doubt, would be held a criminal. Indeed, it is because the legislature has applisd the judgment of its mem- bers to the question of its authority to pass the proposed law, and has only passed it after being satisfied of the authority, that the judiciary waive their own doubts, and give it their support.! P Perhaps more exactly, because it is the duty of the legislature to do this, and SECT. II.] NOTE. 175 " 10. The validity of legislation can never be made to depend on the motives which have secured its adoption, vfhether these be public or personal, honest or corrupt. There is ample reason for this in the fact that the people have set no authority over the legislators with jurisdiction to inquire into their conduct, and to judge what have been their purposes in the pretended discharge of the legislative trust. This is a juris- diction which they have reserved to themselves exclusively, and they have appointed frequent elections as the occasions and the means for bringing these agents to account. A further reason is, that to make legislation depend upon motives would render all statute law uncertain, and the rule wliich should allow it could not logically stop short of permitting a similar inquiry into the motives of those who passed judgment. There- fore the courts do not permit a question of improper legislative motives to be raised, but they will in every instance assume that the motives were public and befitting the station. They wiU also assume that the legislature had before it any evidence neces- sary to enable it to take the action it did take. " H. When a legislative enactment proves to be invalid, it is for all legal purposes as if it had never been. It can support no contract, it can create no right, it can give protection to no one who has acted under it, it can make no one an offender who has refused obedience to it. And this is true of any particular provision of a statute which proves invalid, while the remainder is sustained. It is true that one who assumes to disobey a statute as invalid does so at the risk of being punished for his disobedience if the law is sustained ; but this is a risk which every one takes when he acts in any matter in respect to which the law is in doubt." II. Advisory Opinions. The giving of such opinions by judges is not an exercise of the judicial function. The relation of the English judges to the king, in former days, and their ancient place as assistants to the House of Lords, led to a practice, on the part of that House, as well as the king, of calling on them for advisory or " consultative " opinions. This may be traced very far back in our records, e. g., in 1387 (2 Stat. Realm, 102-104), King Rich- ard II. puts to his judges a long string of questions. In this country the constitutions of seven States have provided for obtaining opinions from the judges of the highest court upon application by the executive or the legislature, viz., of Massachusetts, New Hampshire, Maine, Rhode Island, Florida, Colorado, and South Dakota. In one other State, Missouri, a similar clause was intro- duced in the Constitution of 1865, just after the war; but it continued only ten years, and was left out of the Constitution of 1875. It dates in Massachusetts from 1780, — Part II., c. iii. o. 2; in New Hampshire from 1784, — Part II., title. Judiciary Power; in Maine (formerly a part of Massachusetts) from 1820, — Art. VI., s. 3; in Rhode Island, from 1 842, — Art. X., s. 3 ; in Florida, from 1868, — Art. V., s. 16, amended in 1875, — Amendment XI. ; in Colorado, from 1886, — Amendment to Art. VI., s. 3 ; in South Dakota, from 1889, — Art. V., s. 13. In the first three States, the judges are to give their opinions " upon important questions of law and upon solemn occasions." In Rhode Island, " upon any question of law, whenever requested," &o. In Florida, at any time, upon the Governor's request " as to the interpretation of any portion of this Constitu- tion, or upon any point of law ; " this was amended by limiting the last alternative to " any question affecting his executive powers and duties." In Colorado, the provision reads : " The Supreme Court shall give its opinion upon important questions upon solemn occasions, when required by the Governor, the Senate, or the House of Repre- because a failure on the part of the legislature to do its duty will not justify the judiciary in trying to mend matters by a breach of its own duty. Cooley, in another place (Const. Lira., 6th ed., 68), says: "Cases must sometimes occur when a court should refrain from declaring a statute unconstitutional because not clearly satisfied that it is so, though, if the judges were to act as legislators upon the question of its enactment, they ought, with the same views, to withhold their as- sent, from grave doubts upon that subject." — Ed.] 176 NOTE. [chap. I. sentatives : and all such opinions shall he published in connection with the reported decisions of the court." This has been held (In the Matter of Senate Bill No. 65, 12 Colo. 466, in 1889) to be limited to questions of law and such as are questions pub- lid juris, and tocaU not merely, as elsewhere generally held, for the opinions of the juistices, but for authoritative judgments of the court. The resort to this power in Colorado was prompt and troublesome. See a group of opinions in 9 Col. 620-642. In South Dakota, the Governor may " require the opinions of the judges of the Supreme Court upon important questions of law involved in the exercise of his executive powers, and upon solemn occasions." In Missouri, the provision only varied from that in Massachusetts, by the insertion of a word, — " upon important questions of consti- tutional law," &c. In the Federal Convention of 1787, it was proposed that " each branch of the legis- lature, as well as the supreme executive, shall have authority to require the opinions of the Supreme Judicial Court upon important questions of law, and upon solemn occa- sions." 5 EU. Deb. 445. But nothing came of it. It is, however, interesting to see that the first President, who had also presided over the Convention, aslied for an opinion from the justices. " Washington, in 1 793, sought to take the opinion of the judges of the Supreme Court of the United States as to various questions arising under our treaties with France. They declined to respond. The President and Cabinet came to the conclusion to ask this opinion from the judges on July 12, 1793. Those who were at hand appear to have suggested delay until they could communicate with their absent associates. A letter of July 23, from the President to Chief Justice Jay and his brethren, is preserved, in which he assents to this delay, but expresses the pleasure that he shall have in receiving the opinion at a convenient time. (Sparks's Washington, X. 359.) The date was but a little later, — not far from Aug. 1, as it would seem, — of which Marshall speaks when he says (Life of Washington, V. 441, Philadelphia, 1807) : 'About this time it is probable that the difficulties felt by the judges of the Supreme Court in expressing their sentiments on the points referred to them were communicated to the Executive. Considering themselves merely as con- stituting a legal tribunal for the decision of controversies brought before them in legal form, these gentlemen deemed it improper to enter the field of politics by declaring their opinion on questions not growing out of the case before them.' It was, perhaps, fortunate for the judges and their successors that the questions then proposed came in so formidable a shape as they did. There were twenty-nine of them, and they fill three large octavo pages in the Appendix to the tenth volume of Sparks's Washington. Had they been brief and easily answered the court might, not improbably, have slipped into the adoption of a precedent that would have engrafted the English usage upon our national system. As it is, we may now read in 2 Story, Const, sec. 1571, that while the President may require the written opinion of his Cabinet, ' he does not possess a like authority in regard to the judicial department.' " — *rHATER'8 Mem. on Admsory Opinions, 13. It may be added that the Constitution of the Havfaiian Islands of 1887, Art. 70 (5 Haw. Rep. 716), gives " the King, His Cabinet, and the Legislature . . . authority to require the opinions of the justices of the Supreme Court upon important ques- tions of law, and upon solemn occasions." This provision is said to run back through the Constitution of 1864 (art. 70) to that of 1852 (art. 88), where it seems to have been first introduced, in a slightly different form. A number of such opinions are preserved in the Hawaiian Reports, beginning with one entitled The Segregation of L^ers, 5 Haw, Rep. 162 (May, 1884). — Ed. SECT, n.] GREEN V. THE COMMONWEALTH. 177 GREEN V. THE COMMONWEALTH. Supreme Judicial Court of Massachusetts. 1866. [12 AUen, 155.] Reed, Attorney-General, for the Commonwealth. a. W. Paine, and iVi St. J. Green, for the petitioner. BiGELOw, C. J. The petitioner in this case stands convicted upon his own confession in open court of the crime of murder in the first degree, and is now awaiting the execution of sentence of death awarded against him on such conviction at a term of this court for the count^^ of Middlesex, held at the city of Lowell, on the third Monday of April, 1864. Under the provisions of Gen. St. c. 146, § 13, he made appli- cation by petition to a "justice of this court on the 21st day of March last, for a writ of error on said judgment." His petition is accom- panied by an assignment of certain errors, which he alleges to exist in the record. With the assent of counsel, who appear in his behalf, and in conformitj- to the precedent established in Webster v. The Common- wealth, 5 Cush. 386, the hearing of this petition was adjourned into the full court. The grounds upon which the alleged errors are supposed to rest have been presented to our consideration with great fulness and ability by learned counsel, and the case now stands for our final adjudi- cation on the causes of error assigned in support of the petition. It is hardly necessarj- for us to saj- that we have considered the questions thus brought before us with the most anxious solicitude, and that we have examined and deliberated upon them under a deep sense of the responsibility which rests upon us, in view of the solemn and momen- tous consequences to the petitioner involved in our decision. But it is not for this reason onlj' that we have been earnest in our desire to weigh with the utmost caudor and impartiality the causes of error assigned by him. Some of the points now relied on as affording suflBcient ground for a reversal of the judgment against him have been heretofore called to our attention. B3' an order of the Governor and Council passed on the 31st day of October, 1864, in pursuance of the provision of the Constitution, c. 3, § 2, the inquirj' was propounded to us " whether it was competent for this court, especially when held by a single justice, to enter up a final judgment against a prisoner, and award the sentence of death, upon his own plea of guilty of murder in the first degree ; or whether, on the contrary, it is not necessary to record the plea as a general plea of guilty, and either enter judgment as of murder in the second degree, or else submit the question of the degree of murder to be found by a jury." To this inquiry, in compli- ance with the duty imposed by the Constitution, an answer, signed by all the justices of this court, covering, as we then supposed, the entire subject-matter concerning which information was sought, was returned to the Governor and Council, which- stated in substance that the convic- voL. I. — 12 178 OPINION OF THE JUSTICES. [CHAP. I. tion was not irregular or informal on the grounds which were under- stood to be suggested bj' the inquiry ; and that the judgment and sentence were dul^' 'entered up and recorded. 9 Allen, 585. The opinion thus given, like all others of a similar character, was formed without the aid of counsel learfied in the law, or any statement of the reasons on which the regularity or validity of the proceedings had been called in question. Although it is well understood and has often been declared by this court that an opinion formed, and expressed under such circumstances cannot be considered in any sense as conclusive or binding on the rights of parties, but is reg«i'ded as being open to recon- sideration and revision, 3'et it necessarily presupposes that the subject to which it relates has been judicially examined and considered, and an opinion formed thereon. We have therefore felt it to be our duty most sedulously to guard against any influence which might flow from our previous consideration of some of the causes of error now assigned as the ground for a reversal of the judgment. . . . The result is, that the prayer of the petitioner is denied. The prisoner was accordingl3' hung. OPINION OF THE JUSTICES. The Justices of the Supreme Judicial Court op Massachu- setts. 1878. [126 Mass. 557. J . . . The Justices of the Supreme Judicial Court, having now fully considered the questions upon which their opinions have been required by the Honorable Senate and the Honorable House of Representatives respectively, and the precedents communicated to them by the joint order of the two Houses, and other precedents and authorities on the subject, respectfully submit the following opinion : The Constitution of the Commonwealth provides as follows : " All monej- bills shall originate in the House of Representatives ; but the Senate may propose or concur with amendments, as on other bills." Chap. 1, sect. 3. art. 7. The questions proposed by the two Houses, although differing in form, appear to us to present substantially one and the same question ; namel}',. whether a bill which appropriates money from the treasury of the Commonwealth, and does not provide for levj'ing such mone3- upon the people, by tax or otherwise, is a money bill, which must, bj' this provision of the Constitution, originate in the House of Rep- resentatives. Upon first taking np this question, some of us had doubts whether it was one upon which we could properly express an opinion. Althougl) a consideration of the precedents dispelled those doubts, it has seemed SECT. II. J 'OPINION OF THE JUSTICES. 179 to US proper, in order to show that, in undertaking to define the con- stitutional authority of a branch of the legislature, we have been cau- tious not to exceed our own, that we should state the reasons on which it has appeared to us to be our duty to answer the question to the best of our information and abilities. The question is indeed, in one aspect, a question of parliamentaiy privilege and of parliamentary procedure ; but it is also a question of the construction of the Constitution of the Commonwealth, which is on this subject the supreme law. Tlie Constitution 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 occasions." Chap. 3, art. 2. This article, as reported in the Convention that framed the Constitution, limited the authority to the Governor and Council and the Senate, and was extended b}- the Convention so as to include the House of Repre- sentatives ; Journal of Convention of 1779-80 (ed. 1832), 211, 242; and, as may be inferred from the form in which it was originally pre- sented, evidently had in view the usage of the English Constitution, b}- which the king, as well as the House of Lords, whether acting in their judicial or in their legislative capacity, had the right to demand the opinions of the twelve judges of England. The practice of the Stuart kings,, in taking extrajudicial opinions of the judges upon questions about to come before them judiciallj', was an unconstitutional abuse of the royal authority in this respect. Staf- ford's Case, Year-Book, 1 H. Vll.fol. 26, pi. 1 ; Lord Coke, in Peach- am's Case, 2 Howell's State Trials, 871 ; 3 Inst. 29 ; Foster's Crown Law, 200; Co. Lit. 110, Hargrave's note. But, since the Revolution of 1688, so sturdy an assertor of the independence of the judges as Lord Holt joined with the other judges of the time in opinions to King William IH. upon the extent of the power of pardon ; Fenwick's Case, Fortescne, 385 ; and to Queen Anne upon the question whether a wiit of error should be granted as of right ; Paty's Case ; 14 East, 92, note ; 14 Howell's State Trials, 861, note. And, as late as 1760, Lord Mans- field, Chief Justice Willes, and other judges, gave an opinion to King George IL upon the jurisdiction of a court-martial to try an officer, after his dismissal from the army, for a military offence committed while in actual service. Lord Oeorge Sackville's Case, 2 Eden, 371. So, under the Constitution of the Commonwealth, opinions have been given by the justices of the Supreme Judicial Court to the Governor and Council upon questions of the exercise of the power of pardon, 13 Gray, 618, the issue of death-warrants, 11 Cush. 604, the validity of the proceedings of a court-martial, 3 Cush. 586, and the authority of the Governor, as commander-in-chief, over the militia. 1 Allen, 197, note. We are not aware of any instance since 1760 in which the Crown has exei'cised the power of asking the opinion of the judges. But the 180 OPINION OF THE JUSTICES." [CHAP. I. right of the House of Lords to put abstract questions of law to the judges, the answer to which might be necessary to the House in its legislative capacitj', has been often acted on in modern times. M'Nhghten's Case (1843), 10 CI. & Fin. 200, 212-214. . . . In this Commonwealth, the privileges of the two Houses do not, as in England, rest merely upon legislative resolves and usages ; but they are defined bj- the written Constitution. Burnham's Case, 14 Gray, 226, 238; Whitcomb's Case, 120 Mass. 118, 122. The same Consti- tution whicli defines these privileges declares that each branch of the legislatui-e, 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 occasions. The opinions of the justices can be required only " upon important questions of law," not upon questions of fact ; Opinion of Justices, 120 Mass. 600 ; " and upon solemn occasions," that is to sa}-, when such questions of law are necessarj- to be determined bj' the body making the inquiry, in the exercise of the legislative or executive power intrusted to it by the Con- stitution and laws of the Commonwealth. Answer of Justices, 122 Mass. 600. No other limit of the authoritj- to require the opinions of the justices is expressed in the Constitution. In giving such opinions, the justices do not act as a court, but as the constitutional advisers of the other departments of the government, and it has never been considered essential that the questions proposed should be such as might come before them in their judicial capacity.^ . . . The interesting character of the precedents to which we have re- ferred, and the want of anj- published collection in which thej' may be readily found, maj-, we trust, excuse the fulness with which we have stated the considerations which have satisfied us that the orders of the Senate and of the House of Representatives present an important question of law, arising upon a solemn occasion, and upon which the two Houses are empowered b^- the Constitution to require our opinion. Any embarrassment that we might have felt in giving an opinion to one House upon a question aflTecting the constitutional powers of both has been removed by the facts that each House has proposed a similar ^ It has been sometimes asked, whether the opinions of the judges onght not to govern the decision of the House. They have never had that effect even wh?n unani- mous ; and it is not easy to .see how they could so operate when conflicting and op- posed. The House pays great regard to the opinions of the judges, especially when concurrent ; hut the House cannot transfer to. others the constitutional responsibility which attaches to the adjudication of causes in the court of last resort, -r- Macqueek, AppeUate Jtirisd. of the House of Lords, 49-50. This is the iirst time, since the adoption of the Constitution, that this question has been hionght judicially to the attention of the court. The advice, or opinion, given by the judges of this court, when requested, to the Governor, or to either House of the General Assembly, under the 3d section of the 10th article of the Constitution, is not a decision of this court ; and given, as it must be, without the aid which the court derives, in adversary f ases, from able and experienced counsel, though it may afford much light, from the reasonings or research displayed in it, can have no weight as a precedent. — Ames, C. J. (for the court), in Taijlor v. Place, 4 R. I. 362 (1856). — Ed. SECT. II.j APPLICATION OF THE SENATE. 181 question and that the two Houses have joined in an order transmitting to us all the precedents that either House deemed of sufficient impor- tance to be considered. . . . The result is, that, having regard to the history- of the subject, to the settled meaning of the words " money bills " at the time of the adop- tion of the Constitution of the Commonwealth, and to the contempora- neous construction of that Constitution by the justices of the Supreme Judicial Court and by both Houses of the Legislature, aflflrmed bj' a continuous and uniform practice of eightj'-flve j-ears, we are of opinion that the exclusive constitutional privilege of the House of Representa- tives to originate money bills is limited to bills that transfer money or property from the people to the State, and does not include bills that appropriate money from the treasury of the Commonwealth to particular uses of the government, or bestow it upon individuals or corporations. . . . HoKACE Grayj Marcus Mokton, James D. Colt, William C. Endicott, Seth Ames, Otis P. Lord, Augustus L. Soule. Boston, December 31, 1878. In the Matter of THE APPLICATION OF THE SENATE. Supreme Court of Minnesota. 1865. [10 Minn. 78.] At a session of the Legislature of this State in 1865, the following resolution was adopted by the Senate, to wit : Hesolved, That the Supreme Court be and they are hereby respect- fully requested to furnish the Senate their opinion upon the following questions. ... Whereupon the court, in answer to such resolution, returned to the Senate the following opinion. Br THE Court (McMillan, J.). A copy of the resolution of the Senate requesting the Supreme Court to furnish the Senate with their opinion upon certain questions stated in the resolution was communi- cated to the court yesterdaj'. We have had the matter under advisement, and given it that con- sideration which a communication from so high a source is entitled to receive. The resolution, we presume, was passed in View of sec. 15, ch. 4, Comp. Stat, which provides that " either House may, by resolution, request the opinion of the Supreme Court, or any one or more of the judges thereof, upon a given subject, and it shall be the duty of such court or judges when so requested, respectively, to give such opinion in writing." 182 APPLICATION QF THE SENATE. [CHAP. I. We are aware of but two instances under our State organization, in which similar resolutions have been passed, and in both cases replies were made declining to express auj- opinion upon the points submitted. Journal of the Senate, 1858, 718 ; lb. 1863, 75. We might be justified in resting on these precedents. But we perceive that in neither case was the resolution considered by all the members of the court ; nor does either of the opinions given by the judges cover the whole ground of the power of the legislature and the court under resolutions of this kind. We, therefore, deem it proper out of respect to the Senate, and in view of the importdtat principles involved, to state briefly the reasons for the conclusions at which we have arrived. Bj' the Constitution the power of the State government is divided into three distinct departments, legislative, executive, and judicial. The powers and duties of each department are distinctly defined. The de^ partments are independent of each other to the extent, at least, that neither can exercise any of the powers of the others, not expressly pro- vided for. Constitution, art. 3, sec. 1. This not only prevents an assumption by either department of power not properly belonging to it, but also prohibits the imposition, by one, of any dutj' upon either of the others not within the scope of its juris- diction ; and " it is the duty of each to abstain from and to oppose en- croachments on either." Any departure from these important principles must be attended with evil. This question is well considered in a note to Hayburn's Case, 2 Dall. 409 et seq., in which the Circuit Court for the District of New York,* Jay, Chief Justice, saj-s : "That neither the legislative nor the execu- tive branches can constitutionally assign to the judicial, any duties but such as are properly judicial and to be performed in a judicial manner." The duty sought to be imposed b}' the section of the Act referred to, is clearly neither a judicial act nor is it to be performed in a judicial manner. It constitutes the Supreme Court the advisers of the legisla- ture, nothing more. This does not come within the provisions of the Constitution, and, as the Constitution now stands, would be, in our opinion, not only inconsistent with judicial duties, but a dangerous pre- cedent. The impropriety of an unauthorized expression of opinion by a judge or court, especially one of last resort, upon a matter which maj' subsequently come before the court for adjudication, will immediately suggest itself. If the statute under consideration is in conflict with the Constitution it imposes no dutj', and any opinion expressed in pursu- ance of action under it is extra-judicial, and no oflScial responsibility attaches to the judge or court voluntarily giving it. The evils which might result to the people from such a source will suggest themselves on a moment's reflection. In all the instances to which we have had an opportunity' of referring, where courts have responded to resolutions of this character in other 1 See ante, p. 105, n. — Ed. SECT. II.] APPLICATION OF THE SENATE. 183 States, provision Las been made therefor in the State Constitution. Const, of Mass. ch. 3, sec. 2 ; Const, of New Hampshire, sec. 74 ; and of course in such case official responsibility attaches to the discharge of the duty, and thus one serious objection is removed. Althougli we con- fess that, for other reasons, such a constitutional provision does not address itself to our minds with any favor. Whether under the territorial organization the statute referred to could have been sustained, we need not consider, since only Such terri- torial laws as are not inconsistent with the Constitution, are preserved by the schedule to that instrument. We are, therefore, unanimously of opinion that the section referred to authorizing the action of the Senate is unconstitutional and void, and therefore imposes no duty on the court. And we are prevented from voluntarily coDjplying with the request, by the views we entertain of our judicial duty and the injurious tendency of such a precedent. We must, therefore, respectfully decline to comply with the request contained in the resolution.^ 1 A statute similar to that declared unconstitutional in Minnesota, is found in Vermont (Eev. St. Vt. (1880) § 795) : "The Governor, when the interests of the State demand it, may require the opinion of the judges of the Supreme Court or a majority of them upon questions of law connected with the discharge of his duties." So in New York, by a provision first introduced in 1829 (2 Rev. St., ed. 1829, 658 ; Part iv. tit. 1, §§ 13, 14), when a person was convicted and sentenced to death, the presiding judge was re- quired to inform the Governor and to send to him the judge's, notes of the testimony ; whereupon the Governor might " require the opinion of the Chancellor, the justices of the Supreme Court, and of the Attorney-General, or of any of them, upon any state- 1 ment so furnished." A case in which an opinion was given under this statute is People V. Green, 1 Denio, 614 (1845). By a statute of 1847, the judges of the Court of Ap- peals were substituted for the Chancellor ; and the law so stands now. (N. Y. Code Crim. Proc. §§ 493, 494.) Without any such statute, and without any constitutional requirement, the judges have sometimes been called on for such extra-judicial advice and aid, and have given it. There are indications that this was done, more or less, during the colonial period, — as in the expressions of Mr. Justice Howell {ante, p. 76) in the Rhode Island caSe of Trevett V. Weeden in 1 786. Ou February 25, 1 780, the Constitutional Convention of Massachu- setts voted "to signify to the judges of the Superior Court in writing the request of this Convention that they would give their attendance this evening, as matters of im- portance are to be acted on." (Journal of Conv. of 1779-80, 142.) In Pennsylvania (Archives, vols. 8, 11, and 12) there are various instances of opinions given by the jus- tices to the executive department between 1780 and 1790. An account of such an opinion is found in Respubhca v. De Longchamps, 1 Dall. Ill, 115-116 (1784) ; and an opinion or "report" is found in 3 Binney, Appendix, 598 (1808). For other like opin- ions, given upon request, without any legal requirement, see Jameson, Const. Conv., 4th ed. 663 (in New York), In re Power of the. Governor, 79 Ky. 621 (1881), and 55 N. W. Rep. 1092 (Nebraska, 1893). In this last case, Norval, J., gives strong reasons for refusing to join with his brethren in giving the opinion. It seems to have been not an uncommon practice in Nebraska to give them. In England the judges are sometimes called upon to exercise what is there called a " consultative " function ; but its non-judicial quality is distinctly asserted. Ex parte Co. Council of Kent [1891], 1 Q. B. 725; compare Overseers v. L. ^ N. W.R'y. Co., 4 App. Cas. 30. — Ed. 184 HOUSTON V. WILLIAMS. [CHAP. I, HOUSTON V. WILLIAMS. Supreme Court of California. 1859. [13 Cal. 24.] Appeal from the Third District. This was an action of ejectment. The defendant recovered judgmenjt in the District Court.. On appeal, the judgment was reversed by the Supreme Court from the bench — no opinio%in writing being delivered. The reasons for the decision were stated orally. The counsel for the plaintiff afterwards presented a petition asking the court to file a written opinion. Wm. T. Wallace, for petitioner. Spencer & Rhodes, for respondent. Field, J., delivered the opinion of the court — Teert, C. J., con- curring. At the present term the judgment in this case was reversed, without any opinion being given setting forth the reasons for the reversal. The appellant now moves the court to file an opinion, and cites section 69 of the statute of Maj- lath, 1854, amending the Practice Act, which pro- vides that " all decisions given upon an appeal in any Appellate Couit of this State, shall be given in writing, with the reason therefor, and filed with tlie clerk of the court," except in cases tried in the County Court, on appeal from a justice's court. The provisions of the statute had not been overlooked when the jJe- cision was rendered. It is but one of nianj- provisions embodied in different statutes by which control over the judiciary department of the government has been attempted by legislation. To accede to it any obligatory force, would be to sanction a most palpable encroachment upon the independence of this department. If the power of the legisla- ture to prescribe the mode and manner in which the judiciary shall discharge their official duties be once recognized, there will be no limit to the dependence of the latter. If the legislature can require the reasons of our decisions to be stated in writing, it can forbid their statement in writing, and enforce their oral announcement, or prescribe the paper upon which thej' shall be written, and the ink which shall be used. And yet no sane man will justify anj- such absurd pretension, but where is the limit to this power if its exercise in anj' particular be admitted ? The truth is, no such power can exist in the legislative department, or be sanctioned b3' anj' court which has the least respect for its own dignity and independence. In its own sphere of duties, this court can- not be ti-ammelled b}- anj- legislative restrictions. Its constitutional duty is discharged b}' the rendition of decisions. The legislature can no more require this court to state the reasons of its decisions, than this court can requii'e, for the validity of the statutes, that the legislature SECT. 11.] HOUSTON V. WILLIAMS. 185 shall accompany them with the reasons for their enactment. The prin- ciples of law settled are to be extracted from the records of the cases in which the decisions are rendered. The reports are full of 'adjudged cases, in which opinions were never delivered. The facts are stated by the reporter, with the points arising thereon, and are followed by the judgments rendered, and yet no one ever doubted that the courts, in the instances mentionted, were discharging their entire constitutional obligations. (See, bj' way of illustration, cases in 1 Day's Conn. Re- ports ; in 1 Brockenborough's Va. Cases ; and in 4 Harris & McHenry's Maryland Reports.) The practice of giving the reasons in writing for judgments, has grown into use in modem times. Formerlj', the reasons, if any were given, were generally stated orally by the judges, and taken down by the reporters in short-hand. 1 Blackstone, 71. In the judicial records of the King's Courts, " the reasons or causes of the judgment," saj-s Lord Coke, " are not expressed, for wise and learned men do, before they judge, labor to reach to the depth of all the reasons of the case in question, but in their judgments express not anj' ; and, in truth, if judges should set down the reasons and causes of their judgments within every record, that immense labor should withdraw them from the necessary services of the commonwealth, and their records should grow to be like Elephantini lAhri^ of infinite length, and, in mine opinion, lose somewhat of their present authority and rev- erence ; and this is also worthy for learned and grave men to imitate." Coke's Rep., part 3, pref. 5. The opinions of the judges, setting forth their reasons for their judg- ments, are, of course, of great importance in the information they impart as to the principles of law which govern the court, and should guide litigants ; and right-minded judges, in important cases — when the pressure of other business will permit — will give such opinions. It is not every case, however, which will justify the expenditure of time necessarj' to write an opinion. Many cases involve no new principles, and are appealed onlj' for delay. It can serve no purpose of public good to repeat elementary principles of law which have never been questioned for centuries. The court must therefore exercise its own discretion as to the necessity of giving an opinion upon pronounc- ing judgment, and if one is given, whether it shall be orally or in writing. In the exercise of that discretion, the authority of the court is absolute. The legislative department is incompetent to touch it. "With the expression of these views, we might close this opinion, by denying the motion, but it will not be impertinent to the matter under consideration, to say a few words as to the control of the court over its opinions and records. There are some misapprehensions on the subject, arising chiefly from a confusion of terms, and from a mis- conception of the relation of the different departments of government to each other, and the entire independence in its line of duties of the 186 HOUSTON V. WILLIAMS. [CHAP. L judiciarj'. The terms "opinions" and "decisions" are often con- founded, 'yet there is a wide difference between them, and in ignorance of this. Or by overlooking it, what has been a mere revision of an opinion, has been sometimes regarded as a mutilation of a record. A decision of the court is its judgment, the opinion is the reasons given for that judgment. The former is entered of record immediatelj' upon its rendition, and can only be changed through a regular application to the court, upon a petition for a rehearing, or a modification. The latter is the property of the judges, subject to their revision, correction, and modification, in any particular deemed advisable, until, with the appro- bation of the writer, it is transcribed in the records. In the haste of composition, some errors will occur; in the copj-ing, several; in the printing, manj'. There will also be, at times, expressions of opinion on incidental questions, too strong and unqualified. All these errors, whether in language, form, or substance, should be corrected before a publication is permitted, as an authoritative exposition of the law, and, as such, binding upon the court. The power of enforcing a correct publication, when the publication is authorized, cannot reasonably be denied. In no civilized State, except in California, has the existence of this power ever been doubted. Every judge, from the Chief Justice of the Supreme Court of the United States, down, claims and exercises, without question, the right of revision, including thereby modification and partial suppression of his opinions. In the recent case in relation to the Sutter grant, we are informed that application was made for a copy of the opinion delivered, and that the application was refused, on the ground that Mr. Justice Campbell, who delivered it, wished to revise it before it left the clerk's ofHce. When the opinions have been revised and finallj- approved and recorded, then they cease to be the subject of change. They then become like judgment records, and are bej-ond the interference of the judges, except through regular proceedings before the court by petition. The records of the courts are necessarily subject to the control of the judges, so far as may be essential to the proper administration of justice. The court hears arguments upon its records ; it decides upon its records ; it acts by its records ; its openings, and sessions, and ad- journments, can be proved only by its records ; its judgments can only be evidenced by its records ; in a word, without its records it has no vitalit}'. Legislation, which could take from its control its records, would leave it impotent for good, and the just object of ridicule and contempt. The clerk, it is true, is a constitutional officer — not subject to appointment or removal bj' the court — but subject, in the control of the records, to its orders. It is true the court cannot, without great abuse of its powers, take, directly or indirectly, from the clerk, the perquisites of his office for copies of opinions, and papers on file, nor authorize the destruction or mutilation of any of the records, but, sub- ject to these limitations, it must necessarily exercise control that justice may be done to litigants before it. SECT. II.] IN KE SANBORN. 187 The power over our opinions and the records of our court we shall exercise at all times while we have the honor to sit on the bench, against all encroachments from any source, but in a manner, we trust, befitting the highest tribunal in the State. We cannot possiblj- have any interest in the opinions except that they shall embody the results of our most mature deliberation, and be presented to the public in an authentic form, after they have been subjected to the most careful revision. Motion denied.^ U In re SANBORN. Supreme Court of the Ukited States. 1892. [148 U. S. 222.] The case is stated in the opinion. Mr. George A. JSing (with whom were Mr. Charles King and Mr. William B. King on the brief), for petitioner. Mr. Assistant Attorney- General Maury opposing. Mr. Justice Shiras delivered the opinion of the court. A claim of John B. Sanborn, presented in the Department of the Interior, for certain fees under a contract with Sisseton and Wahpeton Indians, of ten per cent of the amount appropriated for said Indians by section 27 of the Indian Appropriation Act of March 3, 1891, 26 Stat. 989, c. 543, was referred by the Secretary of that Department, with tlie consent of the claimant, to the Court of Claims, in pursuance of § 12 of the Act of March 3, 1887, 24 Stat. 505, c. 359 ; 1 Sup,. Rev. Stat. 2d ed. 561. That court having concluded that Sanborn was not entitled to recover, and having reported its findings of fact and conclu- sions of law to the department, Sanborn, on the 6th day of July, 1892, asked for the allowance of an appeal to the Supreme Court of the United States. This application, being made in a vacation of the Court of Claims, was heard and denied by the Chief Justice, but was renewed and argued before all the judges on November 2, 1892, and was denied by the court, which adopted the opinion of the Chief Justice previously filed upon the motion before him. Thereupon Sanborn filed, in this court, his petition praying that a writ of mandamus be allowed to the Chief Justice and judges of the Court of Claims, commanding them to allow his appeal as prayed for. The question for us to answer is whether, where a claim or matter is pending in one of the executive departments, which involves contro- verted questions of fact or law, and the head of such department, with 1 In Ex parte Griffiths, Reporter, 118 Ind. 83 (1888), it was held beyond the power of the legislature to require the judges of the Supreme Court to write headuotes for their opinions. — Ed. 188 IN EE SANBORN. [CHAP. L the consent of the claimant, has transmitted the claim, with the vouchers^ papers, proofs and documents pertaining thereto, to the Court of Claims, and that court has reported its findings of fact and law to the depart^ meut by which it was transmitted, the claimant has a right by appeal to bring the action of that court before us for review. The petitioner does not complain of any illegality on the part of the court below in dealing with his claim. He concedes that the action of that court had been invoked with his consent. What he complains of is the refusal of the court to allow his appeal ; and we learn, from the opinion of the court, that its refusal to alloir the appeal was not put upon any irregularity or defect in the claim, or in the application for the allowance of an appeal, but upon its view that the proceedings before it .were not the subject of appeal to this court. We must find an answer to the question thus put to us by a construc- tion of the Act of March 3, 1887, read in the light of the previous legislation establishing the Court of Claims, and regulating the subject of appeals from its judgments to this court. This suljject came, for the first time, before this court in the case of Gordon v. The United Stales, 2 Wall. 561, wherein it was held that, as the law then stood, no appeal would lie from the Court of Claims to this court. The reasons for this conclusion are stated in the opinion of Chief Justice Taney, reported in the appendix to 117 U. S. 697, and interesting as his last judicial utterance. .Briefly stated, the court held that as the so-called judgments of the Court of Claims were not obliga- tor}' upon Congress or upon the executive department of the govern- ment, but were merely opinions which might be acted upon or disregarded by Congress or the departments, and which this court had no power to compel the court below to execute, such judgments could not be deemed an exercise of judicial power, and could not, there- fore, be revised by this court. A similar question arose in this court as early as 1794, in the case of the United States v. Yale Todd, an abstract of which case appears in a note by Chief Justice Taney to the later case of the United States v. Ferreira, 13 How. 52, and wherein it was held that an Act of Congress conferring powers on the judges of the Circuit Court to pass upon the rights of applicants to be placed upon the pension lists, and to report their findings to the Secretary of War, who had the right to revise such finditigs, was not an Act conferring judicial power, and was, therefore, unconstitutional.^ The case of the United States v. Ferreira was that of an appeal from the District Court of the United States for the District of Florida. The judge of that court had acted in pursuance of certain Acts of Con- gress, directing the judge to receive, examine and adjust claims for losses suffered by Spaniards by reason of the operations of the Ameri- can army in Florida. It was decided that the judge's decision was not 1 SenMe, an error. See ante, p. 105 n. — Ed. SECT. II.] IN EE SANBORN. 189 the judgraent of the court, but a mere award, with a power to review it conferred upon the Secretary of the Treasury, and that from such an award no appeal could lie to this court. Afterwards, and perhaps in view of the conclusion reached by this court in these cases, on March 17, 1866, 14 Stat. 9, c. 19, Congress passed an Act giving an appeal to the Supreme Court from judgments of the Court of Claims, and repealing those provisions of the Act of March 3, 1863, which practically subjected the judgments of the Su- preme Court to the re-examination and revision of the departments, and since that time no doubt has been entertained that the Supreme Court can exercise jurisdiction on appeal from final judgments of the Court of Claims. United States v. Alire, 6 Wall. 573 ; United /States v. 0' Grady, 22 Wall. 641 ; United States v. Jones, 119 U. S. 477. Express provision for such appeals was made by section 707 of the Revised Statutes, as follows : " An appeal to the Supreme Court shall be allowed, on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff, in any case where the amount in controversj' exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of said court" Additions were made to the statutory law on this subject bj- the Act of March 3, 1887, 24 Stat. 505, c. 359 (1 Sup. Rev. Stat. 2d ed. 559), the 9th section of which is as follows : " That the plaintiff or the United States, in any suit brought under the provisions of this Act, shall have the same rights of appeal or writ of error as are now reserved in the statutes of the United States in that case made, and upon the conditions and limitations therein contained. The modes of procedure in claim- ing and perfecting an appeal or writ of error shall conform in all respects and as near as may be to the statutes and rules of court gov- erning appeals and writs of error in like causes." The 12th section of the statute is in the following words: "That when any claim or matter may be pending in any of the executive de- partments which involves controverted questions of fact or law, the head of such department, with the consent of the claimant, may trans- mit the same, with the vouchers, papers, proofs, and documents per- taining thereto, to said Court of Claims, and the same shall be there proceeded in under such rules as the court shall adopt. When the facts and conclusions of law shall have been found, the court shall report its findings to the department by which it was transmitted." With these statutory provisions and decisions of the Supreme Court before it, the court below held that a finding of fact and law made, at the request of a head of a department, with the consent of the claimant, and transmitted to such department, is not a judgment within the meaning of the 9th section of the Act of March 3, 1887, or of the 707th section of the Revised Statutes, and is not, therefore, appealable to this court. Such a finding is not made obligatory on the department to which it 190 IN BE SANBORN. [CHAP. I. is reported — certainly not so in terms, — and not so, as we think, by any necessary implication. We regard the function of the Court of Claims, in such a case, as ancillary and advisory only. The finding or conclusion reached by that court is not enforceable by any process of execution issuing from the court, nor is it made, by the statute, the final and indisputable basis of action either by the department or by Congress. It is, therefore, within the scope of the decision in Gordon v. United States. The provisions providing for appeals, in the 9th section of the Act of 1887, have reference to cases under the prior sections of the Act which treat of cases or suits brought against the United States, whether in the District Courts, Circuit Courts, or Court of Claims, and wherein final judgments or decrees shall be entered. This seems to be clear from the terms used — " the plaintiff or the United States, in any suit brought under the provisions of this Act, shall have the same rights of appeal or writ of error as are now reserved in the statutes of the United States in that behalf made, and upon the limitations and conditions therein contained." The reference here is to the 707th section of the Revised Statutes, which, as already said, provides for an "appeal to the Supreme Court on behalf of the United States, from all judgments of the Court of Claims, adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars." In the case before us there was, as held by the Court of Claims, no final judgment obligatory upon the Department of the Interior, or en- forceable bj' execution from any court. Moreover, there was reallj' no suit to which the United States were parties. The claimant did not pretend that the government owed him anything for property sold or services rendered. His effort was to get the Department of the Interior, which was paying money over to Indians under treaties, to withhold from them an agreed percentage thereof for services rendered by him to the Indians. While such a claim may be rightfully regarded as a matter pending in one of the executive departments, which involves controverted questions of fact or law, within the meaning of the 12th section of the Act of 1887, we are unable to regard it as a suit brought against the United States, within the contemplation of the 9th section of that Act. It is true that, by several statutes which appear in a com- pendious form in sections 2103, 2104 and 2105 of the Revised Statutes, the form and substance of contracts between Indians and agents or attorneys, for services to be performed in reference to claims by such Indians against the United States, are prescribed, and the approval of such contracts b^' the Secretary of the Interior and the Indian Commis- sioner is made necessary. But such enactments, intended to protect the Indians from improvident and unconscionable contracts, by no means create a legal obligation on the part of the United States to see that the Indians perform their part of such contracts. Section 2104 provides that " the Secretary of the Interior and Com- SECT. II.] LUTHER V. BORDEN. 191 missioner of Indian Affairs shall determine therefrom whether, in their judgment, such contract or agreement has been complied with or ful- filled ; if so, the same may be paid, and if not, it shall be paid in proportion to the services rendered under the contract." Such a claim may be, as already said, a matter pending in the De- partment of the Interior, within the meaning of the 1 2th section of the Act of 1887, but it is plainly not a suit against the United States, with respect to which an appeal is provided for by the 9th section. The application for a writ of mandamus must, therefore, be Denied.^ LUTHER V. BORDEN. Supreme Court of the United States. 1848. [7 How. 1.] The first of these cases came up by a writ of error, the second upon a certificate of division of opinion by the judges of the Circuit Court of the United States for the District of Rhode Island. The first case is stated in the opinion of the court. The second requires no statement, as it went off' for want of jurisdiction. Hallett and (Jlifford, for the plaintifi'. Webster and Whipple, contra. Taney, C. J., delivered the opinion of the court. This case has arisen out of the unfortunate political differences which agitated the people of Rhode Island in 1841 and 1842. It is an action of trespass brought by Martin Luther, the plaintiff" in error, against Luther M. Borden and others, the defendants, in the Cir- cuit Court of the United States for the District of Rhode Island, for breaking and entering the plaintiffs house. The defendants justify upon the ground that large numbers of men were assembled in different 1 The Court of Claims declined to go behind the treaty of 1846 upon the ground that it was not within the province of a court, either of law or equity, to determine that a treaty or an Act of Congress had been procured by duress or fraud, and declare it inoperative for that reason. Fletcher v. Peck, 6 Cranch, 87, 130 ; Ex parte Mc- Cardie, 7 Wall. 506, 514 ; People v. Draper, 15 N. Y. 545, 555 ; Railroad Company v. Cooper, 33 Penn. St. 278 ; Wright v. Defrees, 8 Indiana, 302. And while it was conceded that Congress might confer upon that court extra- judicial powers, yet the court was of opinion that this could not be held to have been done by the Act authorizing the institution of this suit, since it was therein provided that whatever judgment might be rendered, whether for the complainants or defend- ants, might be appealed to the Supreme Court, whose jurisdiction, as defined by the Constitution, was strictly judicial, and could neither be enlarged nor diminished by legislative authority. Gordon v. United States, 2 WaU. 561 ; Taney, C. J., 117 U. S. 697, Appx. ; In re Sanborn, (fnte, 222. — Fuller, C. J. (for the court) in U. S. v. Old Settlers, 148 U. S. 466. — Ed. 4 192 tUTHEE V. BORDEN. [CHAP. I. parts of the State for the purpose of overthrowing the government by military' force, and were actually levying war upon the State ; that, in order to defend itself from this insurrection, the State was declared by competent authority to be under marti'al law ; that the plaintiff was en- gaged in the insurrection ; and that the defendants, being in the military service of the State, by command of their superior oflSeer, broke and entered the house and searched the rooms for the plaintiff, who was supposed to be there concealed, in order to arrest him, doing as little damage as possible. The plaintiff replied, that the trespass was com- mitted by the defendants of their own proper wrong, and without any such cause ; and upon the issue joined on this replication, the parties proceeded to trial. . . . [The case involved the question which of two organizations was the legal government of Rhode Island.] Moreover, the Constitution of the United States, as far as it has pro- vided for an emergency of this kind, and authorized the general govern- ment to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of that department. The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion ; and on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence. / Under this article of the Constitution it rests with Congress to de- cide what government is the established one in a State. For as the United States guarantee to each State a republican government, Con- gress 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 recognized by the proper constitutional authority. And its decision is binding on every other di^artment of the government, and could not be questioned in a judicial tribunal. It is true that _the contest in this case did not last long enough to bring the matter to this issue ; and as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head. Congress was not called upon to de- ^ cide the controversy. Yet the right to decide is placed there, and not in the courts. So, too, as relates to the clause in the above-mentioned article of the Constitution, providing for cases of domestic violence. It rested wiih Congress, too, to determine upon the means proper to be adopted to fulfil this guarantee. They might, if they had deemed it most advisable to do so, have placed it in the power of a court to decide when the con- tingency had happened which required the Fedei'al government to inter- fere. But Congress thought otherwise, and no doubt wisely ; and by SECT. II.] LUTHER V. BORDEN. 193 the Act of February 28, 1795, provided that, "in case of an insurrec- tion 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 suflScient to suppress such insurrection." By this Act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. He is to act upon the appUcation of the legislature, or of the executive, and consequently he must determine ■what body of men constitute the legislature, and who is the Governor, before he can act. The fact that both parties claim the right to the government, cannot alter the case, for both cannot be entitled to it. If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrecr tion against the lawful government. And the President must, of neces- sity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the dutj- imposed upon him by the Act of Congress. / After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right? Could the court, while the parties were actually contending in arms for the possession of the government, call witnesses before it, and inquire which party represented a majority of the people ? If it could, then it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States, or the government which the President was endeavoring to maintain. If the judicial power extends so far, the guarantee con- tained in the Constitution of the United States is a guarantee of anarchy, and not of order. Yet if this right does not reside in the courts when the conflict is raging — if the judicial power is, at that time, bound to follow the decision of the political, it must be equallj' bound when the contest is over. It cannot, when peace is restored, punish as offences and crimes the acts which it before recognized, and was bound to recog- nize, as lawful. It is true that in this case the militia were not called out by the Presi- dent. But upon the 'application of the Governor under the charter gov- ernment, the President recognized him as the executive power of the State, and took measures to call out the militia to support his authority, if it should be found necessary for the general government to interfere ; and it is admitted in the argument that it was the knowledge of this decision that put an end to the armed opposition to the charter govern- ment, and prevented any further efforts to establish by force the pro- posed Constitution. The interference of the President, therefore, by announcing his determination, was as effectual as if the militia had been VOL. I. — 13 194 LUTHEE V. BOEDEN. [CHAP. 1 assembled under his orders. And it should be equally authoritative. For certainly no court of the United States, with a linowledge of this i decision, would have been justified in recognizing the opposing party as the lawful government, or in treating as wrong-doers or insurgents the officers of the government which the President had recognized, and was prepared to support by an armed force. In the case of foreign nations, the government aclinowledged by the President is alwaj's recognized in the courts of justice. And this principle has been applied by the Act of Congress to the sovereign States of the Union. It is said that this power in the Presiderit is dangerous to libert}', and may be abused. All power may be abused if placed in unworthy hands.- But it would be difficult, we think, to point out any other hands in which this power would be more safe, and at the same time equally eflfectual. When citizens of the same State are in arms against each other, and the constituted authorities unable to execute the laws, the interposition of the United States must be prompt, or it is of little value. The ordi- nary course of proceedings in courts of justice would be utterlj- unfit for the crisis. And the elevated office, of the President, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a wilful abuse of power as human prudence and foresight could well provide. At all events, it is conferred upon him by the Constitution and laws of the United States, and must, there- Vfore, be respected and enforced in its judicial tribunals. A question very similar to this arose in the case of Martin v. Mott, 12 Wheat. 29-31. The first clause of the first section of the Act of Februarj- 28, 1795, of which we have been speaking, authorizes the President to call out the militia to repel invasion. It is the second clause in the same section which authorizes the call to suppress an in- surrection against a State government. The power given to the Presi- dent in each case is the same, with this difference only, that it cannot be exercised bj' him in the latter case, except upon the application of the legislature or executive of the State. The case above mentioned arose out of a call made by the President, by virtue of the power con- ferred by the first clause ; and the court said that " whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts." The grounds upon which that opinion is maintained are set forth in the report, and, we think, are conclusive. The same principle applies to the case now before the court. Undoubtedly, if the President, in exercising this power, shall fall into error, or invade the ~\ rights of the people of the State, it would be in the power of Congress to apply the proper remedy. But the courts must administer the law as they find it. . . . Much of the argument on the part of the plaintiff turned upon politi- cal rights and political questions, upon which the court has been urged SECT. II.] LUTHER V. BOKDEN. 195 to express an opinion. We decline doing so. The high power has been conferred on this court of passing judgment upon the acts of the State sovereignties, and of the legislative and executive branches of the Fed- eral government, and of determining whether thej' are beyond the limits of power marked but for them respectively by the Constitution of the • United States. This tribunal, therefore, should be the last to overstep the boundaries which limit its own jurisdiction. And while it should always be ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action, and to take care not to involye itself in discussions which properly be- long to other forums. No one, we believe, has ever doubted the propo-^- sition that, according to the institutions of this country, the sovereignty in every State resides in the people of the State, and that thej- may alter and change their form of government at their own pleasure. But whether they have changed it or not, by abolishing an old government, and establishing a new one in its place, is a question to be settled by the political power. And when that power has decided, the courts are ^ bound to take notice of its decision, and to follow it. The judgment of the Circuit Court must, therefore, be affirmed.* 1 And so Ccesar Griffin's Case, Chase's Dec. 364, 412 (1869) ; and, as to the con- tinued existence of an Indian tribe, United States v. Hollidai/, 3 WaU. 407, 419. See Martin v. Mott, 12 Wheat. 19, and compare Opinion of Justices, 8 Mass. 548. In Com. of Kentucky v. Dennison, Governor of Ohio, 24 How. 66 (1860), on an appli- cation to the Supreme Court of the United States for a writ of mandamus to the defendant to compel the delivery of an alleged fugitive from justice, charged with assisting the escape of a fugitive slave, the court denied the application. In the course of the opinion of the court, Taney, C. J., said : " The demand being thus made, the Act of Congress declares that ' it shall be the duty of the executive authority of the State ' to cause the fugitive to be arrested and secured, and delivered to the agent of the demanding State. The words ' it shall be the duty;' in ordinary legislation, imply the assertion of the power to command and to coerce obedience. But looking to the subject-matter of this law, and the relations which the United States and the several States bear to each other, the court is of opinion, the words ' it shall be the duty ' were not used as mandatory and compulsory, but as declaratory of the moral duty which this compact created, when Congress had provided the mode of carrying it into execution. . . . But if the Governor of Ohio refuses to discharge this duty, there is no power delegated to the General Government, either through the Judicial Depart- ment or any other department, to use any coercive means to compel him. And upon this ground the motion for the mandamus must be overruled." — Ed. 196 STATE OF MISSISSIPPI V. JOHNSON. [CHAP. L STATE OB' MISSISSIPPI v. ANDREW JOHNSON, President OP THE United States. Supreme Court of the United States. 1866. [4 Wall. 475.] This was a motion made by Messrs. Sharkey and H. J. Walker, on behalf of the State of Mississippi, for leave to file a bill in the name of the State praying this court perpetually to_ efljoin and restrain Andrew Johnson, a citizen of the State of Tennessee and President of the United States, and his ofHcers and agents appointed for that purpose, and especially E. 0. C. Ord, assigned as militarj' commander of the district where the State of Mississippi is, from executing or in any man- ner carrying out two Acts of Congress named in the bill, one "An Act for the more Efficient Government of the Rebel States," passed March 2, 1867, notwithstanding the President's veto of it as unconstitutional, and the other an Act supplementary to it, passed in the same way March 23, 1867 ; Acts commonly called the Reconstruction Acts. . . . The bill set out the political history of Mississippi so far as related to its having become one of the United States ; and " that forever after it was impossible for her people, or for the State in its corporate capacity, to dissolve that connection with the other States, and that anj- attempt to do so b}' secession or otherwise was a nullity;" and she "now solemnly' asserted that her connection with the Federal government was not in anj-wise therebj- destroj-ed or impaired ; " and she averred and charged "that the Congress of the United States cannot constitution- ally expel her from the Union, and that any attempt which practically does so is a nullity." . . . It then charged that, from information and belief, the said Andrew Johnson, President, in violation of the Constitution, and in violation of the sacred rights of the States, would proceed, notwithstanding his vetoes, and as a mere ministerial dutj', to the execution of said Acts, as though they were the law of the land, which the vetoes prove he would not do if he had any discretion, or that in doing so he performed any- thing more than a mere ministerial duty ; and that with the view to the execution of said Acts he had assigned General E. 0. C. Ord to the command of the States of Mississippi and Arkansas. Upon an intimation made a few days before by Mr. Sharkey, of his desire to file this bill, the Attorney-General objected to it in limine, as containing matter not fit to be received. The Chief Justice then stated that while as a general thing a motion to file a bill was granted as of coarse, yet if it was suggested that the bill contained scandalous or impertinent matter, or was in other respects improper to be received, the court would either examine the bill or refer it to a master for exam- ination. The only matter, therefore, which would now be considered was the question of leave to file the bill. SECT. II.] STATE OF MISSISSIPPI V. JOHNSON. 197 Messrs. Sharkey, R. J. Walker, and Garland, by briefs filed. . . . Mr. Stanbery, A. G., contra. . . . Now, I beg attention to the cases upon wliich tlie counsel rely, not as in point, but as in close analogy ; and, first of all, is what was decided in the case of Burr, by Chief Justice Marshall. In the course of the prosecution against Colonel Burr, his counsel deemed it necessary that tliey should have possession of a certain letter written to the then Presi- dent, Mr. Jefferson, by General Williinson. It did not exactly appear whether it was a private letter or an official letter, but it was said to be a letter in the possession of the President. The counsel of Colonel Burr moved for a subpoena to be issued by the court to the President, commanding him to appear and bring with him that paper. The ques- tion was argued by the counsel for the United States, and by the coun- sel for Colonel Burr ; and, although the counsel for the United States did not admit that such process could be issued against the President, the}- waived the point, and the whole argument was upon the right of the party to have the paper itself. Thej* got upon that side issue, and did not arguC; but merely stated the other point, that, according to their idea, a subpoena could not issue against the President. However, when Chief Justice Marshall came to decide the matter, undoubtedly he was- of opinion that a subpoena might issue against the President, as Presi- dent, to produce a paper in his possession as President. Counsel in this case argue from that, if the President is liable to the process of the court by subpoena to testify, he is liable to the process and the action of the court as a partj' to abide an}- order which the court maj- make. I will go a step or two further with that case, to show how, notwith- standing the opinion that was delivered by the Chief Justice, the court came to a point in which they would not talje another step. When the subpoena was received by the President, Mr. Jefferson, he did not give to it any notice. He did not even make any return to the court, nor any excuse to the court. He simply wrote a letter to the disti'ict attorney, in which he stated, that he could not conceive how it was that, under such circumstances, the court should order him to go there by subpoena ; that he would not go ; that he did not propose to go ; but he said to the district attorney that there was no difficulty in obtaining the paper in the proper way. But he would pay no respect to the subpoena. Thereupon Colonel Burr himself moved for compul- sory process to compel the President to come. Of course that was legitimate. If the court, in saying that the President was amenable to subpoena, was right, the court was bound, at the instance of the defend- ant, to follow it up by process of attachment to compel obedience to its lawful order. At that point, however, the court hesitated, and not a step further was taken toward enforcing the doctrine laid down bj' the Chief Justice. It then became quite too apparent that a very great error had been committed. I say a very great error, with the greatest submission to the great Chief Justice, who, on circuit, at nisi prius,, 198 STATE OF MISSISSIPPI V. JOHNSON. [OHAP. L suddenly, on a motion of this kind, had held that the President of the United States was liable to the subpoena of any court as President. . . . It is with the approbation, advice, and instruction of the President that I appear here to make this objection. I should have felt bound to make it on my own motion, as the law officer of the government. But although counsel, in their bill, have said that the President has vetoed these Acts of Congress as unconstitutional, I must say, in defence of the President, this, that when the President did that, he did everything he intended to do in opposition to these laws. From the moment tlie3- were passed over bis veto there was but one dut^- in his estimation resting upon him, and that was faithfully to carry out and execute these laws. He has instructed rae to say that in making this objection, it is not for the purpose of escaping from anj' responsibility either to per- form or to refuse to perform. . . . The Chief Justice delivered the opinion of the court. A motion was made, some days since, in behalf of the State of Mis- sissippi, for leave to file a bill in the name of the State, pra3ing this court perpetually to enjoin and restrain Andrew Johnson, President of the United States, and E. O. C. Ord, general commanding in the Dis- trict of Mississippi and Arkansas, from executing, or in any manner carrying out, certain Acts of Congress therein named. The Acts referred to are those of March 2, and March 23, 1867, commonly known as the Reconstruction Acts. The Attorne3'-General objected to the leave asked for, upon the ground that no bill which makes a President a defendant, and seeks an injunction against him to restrain the performance of his duties as President, should be allowed to be filed in this court. This point has been fully argued, and we will now dispose of it. We shall limit our inquiry to the question presented by the objection, without expressing any opinion on the broader issues discussed in argument, whether, in any case, the President of the United States may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case, otherwise than by impeachment for crime. The single point which requires consideration is this : Can the Presi- dent be restrained bj' injunction from carrying into effect an Act of Congress alleged to be unconstitutional? It is assumed by the counsel for the State of Mississippi, that the President, in the execution of the Reconstruction Acts, is required- to perform a mere ministerial dutj\ In this assumption there is, we think, a confounding of the terms ministerial and executive, which are by no means equivalent in import. A ministerial duty, the performance of which may, in proper cases, be required of the head of a department, by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law. SECT. II.] STATE OF MISSISSIPPI V. JOHNSON. 199 The case o? Marbury v. Madison, Secretary of State, 1 Cranch, 137, furnishes an illustration. A citizen had been nominated, confirined, and appointed a justice of the peace for the District of Columbia, and his commission had been made out, signed, and sealed. Notliing remained to be done except deliverj', and the duty of delivery was im- posed by law on the Secretary of State. It was held that the perform- ance of this, duty might be enforced by mandamus issuing from a court having jurisdiction. So, in the case o^ Kendall, Postmaster- General, v. Stockton & Stokes, 12 Peters, 527, an Act of Congress had directed the Postmaster-Gen- eral to credit Stockton & Stokes with such sums as the Solicitor of the Treasury should find due to them ; and that officer refused to credit them with certain sums, so found due. It was held that the crediting of this money was a mere ministerial dut^', the performance of which miglit be judicially enforced. In each of these cases nothing was left to discretion. There was no . room for the exercise of judgment. The law required the performance of a single specific act ; and that performance, it was held, might be required by mandamus. Very different is the duty of the President in the exercise of the power to see that tlie laws are faithfully executed, and among these laws the Acts named in the bill. By the first of these Acts he is required to assign generals to command in the several military districts, and to detail sufficient military force to enable such officers to discharge their duties under the law. By the supplementarj' Act, other duties are im- posed on the several commanding generals, and these duties must necessarily be performed under the supervision of the President as Com- mander-in-Chief. The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political. An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshall, as " an absurd and excessive extravagance." It is true that in the instance before us the interposition of the court is not sought to enforce action by the executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial inter- ference with the exercise of executive discretion. It was admitted in the argument that the application now made to us is without a precedent ; and this is of much weight against it. Had it been supposed at the bar that this court would, in any case, interpose, by injunction, to prevent the execution of an unconstitutional^ Act of Congress, it can hardly be doubted that applications with that object would have been heretofore addressed to it. Occasions have not been wanting. The constitutionality of the Act for the annexation of Texas was 200 STATE OF MISSISSIPPI V. JOHNSON. [CHAP. L vehemently denied. It made important and permanent changes in the relative importance of States and sections, and was by many supposed to be pregnant with disastrous results to large interests in particular States. But no one seems to have thought of an application for an injunction against the execution of the Act by the President. And yet it is diflficult to perceive upon what principle the application now before us can be allowed and similar applications in that and other cases have been denied. The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such applicar tion should be entertained. It will hardly be contended that Congress [the judges] can interpose, in anj' case, to restrain the enactment of an unconstitutional law ; and yet how can the right to judicial interposition to prevent such an enactment, when the purpose is evident and the execution of that pur- pose certain, be distinguished, in principle, from the right to such inter- position against the execution of such a law bj' the President? The Congress is the legislative department of the government ; the President is the executive department. Neither can be restrained in its action by the judicial department ; though the acts of both, when performed, are, in proper cases, subject to its cognizance. The impropriet}' of such interference will be clearly seen upon con- sideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the Presi- dent complies with the order of the court and refuses to execute the Acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? Maj' not the House of Eepresentatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered b}' compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt bj' this court to arrest proceedings in that court? These questions answer themselves. It is true that a State may file an original bill in this court. And it may be true, in some cases, that such a bill maj' be filed against the JJnited States. But we are fully satisfied that this court has no juris- diction of a bill to enjoin the President in the performance of his oflicial duties ; and that no such bill ought to be received by us. It has been suggested that the bill contains a praj-er that, if the relief sought cannot be had against Andrew Johnson, as President, it may be granted against Andrew Johnson as a citizen of Tennessee. But it is plain that relief as against the execution of an Act of Congress by Andrew Johnson, is relief against its execution by the President. A bill praying an injunction against the execution of an Act of Congress SECT. II.] STATE OF GEORGIA V. STANTON. 201 by the incumbent of the Presidential office cannot be received, whether it describes him as President or as a citizen of a State. The motion for leave to file the bill is, therefore, Denied, STATE OF GEORGIA v. STANTON. Supreme Court of the United States. 1867. [6 Wall. 50.] This was a bill filed April 15, 1867, in this court, invoking the exer- cise of its original jurisdiction, against Stanton, Secretary of War, Grant, General of the Armj-, and Pope, Major-General, assigned to the command of the Third Military District, consisting of the States of Georgia, Florida, and Alabama (a district organized under thp Acts of Congress of the 2d March, 1867, entitled "An Act to provide for the more Efficient Government of the Eebel States," and an Act of the 23d of the same month supplementary thereto), for the purpose of restrain- ing the defendants from carrying into execution the several provisions of these Acts; Acts known in common parlance as the " Reconstruc- tion Acts." Both these Acts had been passed over the President's veto. . . . The bill set forth the existence of the State of Georgia, the com- plainant, as one of the States of this Union under the Constitution ; the Civil War of 1861-1865 in which she was involved ; the surrender of the Confederate armies in the latter year, and submission to the Constitution and laws of the Union ; the withdrawal of the military government from Georgia by the President, Commander-in-Chief of the army ; and the revival and reorganization of the civil government of the State with his permission ; and that the government thus reorgan- ized was in the possession and enjoyment of all the rights and privileges in her several departments — executive, legislative, and judicial — be- longing to a State in the Union under the Constitution, with the excep- tion of a representation in the Senate and House of Representatives of the United States. It set forth further that the intent and design of the Acts of Con- gress, as was apparent on their face and by their terms, was to over- throw and to annul this existing State government, and to erect 1 As to the power of courts to control the action of other departments, see I Tuck- er's Bl. 358, note; I Burr's Trial (Phila. 1808), 114, 127, 131, 180, 249, 254; Low v. Towns, 8 Ga, 360, 372 ; Appeal of Bartranfl, Governor, 85 Pa. St. 433 ; s. c. Thayer's Cas. Ev. 1153; Martin f. Ingham, 38 Kans. 6,41 ; In re Gunn, 50 Kans. 155 (1893). In the dissenting opinion of Allen, J., in the case last named, the authorities are very fully cited. See also United Slates v. Guthrie, 17 How. 284, as to the limits of the power to con- trol the action of a subordinate member of the executive department. — Ed. 202 STATE OF GEORGIA V. STANTON. [CHAP. I. another and different government in its place, unauthorized by the Constitution and in defiance of its guarantees ; and that, in further- ance of this intent and design, the defendants (the Secretary of War, the General of the Armj', and Major-General Pope), acting under orders of the President, were about setting in motion a portion of the array to take militarj" possession of the State, and threatened to subvert her government, and to subject her people to military rule ; that the State was wholly inadequate to resist the power and force of the Ex- ecutive Department of the United States. She therefore insisted that such protection could, and ought to be afforded by a decree, or order, of this court in the premises. . , . Mr. Stanhery, A. G., at the last term moved to dismiss the bill for want of jurisdiction. Messrs. Charles O'Connor, B. J. Walker (with whom were Messrs. Sharkey, Black, Brent, and E. Cowan); contra. The bill having been dismissed at the last term, Mr. Justice Nelson now delivered the opinion of the court. A motion has been made by the counsel for the defendants to dismiss the bill for want of jurisdiction, for which a precedent is found in the case of The State of Rhode Island \. The State of Massachusetts, 12 Peters, 669. It is claimed that the court has no jurisdiction either over the subject-matter set forth in the bill or over the parties defendants. And, in support of the first ground, it is urged that the matters involved, and presented for adjudication, are political and not judicial, and, there- fore, not the subject of judicial cognizance. This- distinction results from the organization of the government into the three great departments, executive, legislative, and judicial, and from the assignment and limitation of the powers of each bj- the Consti- tution. The judicial power is vested in one supreme court, and in such in- ferior courts as Congress may ordain and establish : the political power of the government in the other two departments. The distinction between judicial and political power is so generally acknowledged in the jurisprudence both of England and of this country, that we need do no more than refer to some of the authorities on the subject. They are all in one direction. Nabob of Camatic v. The East India Co., 1 Vesey, Jr., 375-393, S. C, 2 lb. 56-60; Penn v. Lord Baltimore, 1 Vesey, 446-447; New York v. Connecticut, 4 Dallas, 4-6 ; The Cherokee Nation v. Georgia, 5 Peters, 1, 20, 29, 30, 51, 75 : The State of Rhode Island v. The State of Massachusetts, 12 lb., 657, 733, 734, 737, 738. It has been supposed that the case of 27ie State of Rhode Island v. The State of Massachusetts, 12 Peters, 657, is an exception, and affords an authority for hearing and adjudicating upon political ques- tions in the usual course of judicial proceedings on a bill in equity. But it will be seen on a close examination of the case, that this is a mis- take. It involved a question of boundary between the two States. Mr. SECT. II.] STATE OF GEORGIA V. STANTON. 203 Justice Baldwin, who delivered the opinion of the court, states the objec- tion, and proceeds to answer it. He observes (p. 736), " It is said that this is apolitical, not civil controvers}-, between the parties; and, so not within the Constitution, or thirteenth section of the Judiciary Act. As it is viewed by the court, on the bill alone, had it been demurred to, a controversy as to the locality of a point three miles south of the southernmost point of Charles River, is the only question that can arise under the charter. Taking the case on the bill and plea, the question is, whether the stake set up on Wrentham Plain by Wood- ward and Saffrey, in 1842, is the true point from which to run an east and west line as the compact boundary between the States. In the first aspect of the case it depends on a fact ; in the second, on the law of equity, whether the agreement is void or valid ; neither of which present a political controversj', but one of an ordinary judicial nature of frequent occurrence in suits between individuals." In another part of the opinion, speaking of the submission by sovereigns or States, of a Qontroversj' between them, he observes, " From the time of such sub- mission the question ceases to be a political one, to be decided by the sic volo, sic jubeo, of political power. It comes to the court to be decided by its judgment, legal discretion, and solemn consideration of the rules of law, appropriate to its nature as a judicial question, de- pending on the exercise of judicial powers, as it is bound to act by known and settled principles of national or municipal jurisprudence, as the case requires." And he might have added, what, indeed, is probably implied in the opinion, that the question thus submitted by the sovereign or State, to a judicial determination, must be one appro- priate for the exercise of judicial power ; such as a question of bound- ary, or as in the case of Fenti v. JOord Baltimore, a contract between the parties in respect to their boundary. Lord Hardwicke places his right in that case to entertain jurisdiction upon this ground. The objections to the jurisdiction of the court in the case of Rhode Island against Massachusetts were, that the subject-matter of the bill involved sovereignty and jurisdiction, which were not matters of prop- ertj', but of political rights over the territor}' in question. They are forcibly stated by the Chief Justice, who dissented from the opinion. 12 Peters, 752, 754. The very elaborate examination of the case by Mr. Justice Baldwin, was devoted to an answer and refutation of these objections. He endeavored to show, and, we think, did show, that the question was one of boundary, which, of itself, was not a political ques- tion, but one of property, appropriate for judicial cognizance ; and, that sovereignty and jurisdiction were but incidental, and dependent upon the main issue in the case. The right of property was undoubtedly involved ; as in this countr}', where feudal tenures are abolished, in cases of escheat, the State takes the place of the feudal lord, bj- virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction. In the case of The State of Florida y.. Georgia, 17 Howard, 478, 204 STATE OF GEORGIA V. STANTON. [CHAP. I. the United States were allowed to intervene, being the proprietors of a large part of the land situated within the disputed boundary-, ceded by Spain as a part of Florida. The State of Florida was also deeply- inter- ested as a proprietor. The case, bearing most directlj- on the one before us, is The Chero- kee Nation v. The State of Georgia, 5 Peters, 1. A bill was filed in that case and an injunction prated for, to prevent the execution of cer- tain Acts of the Legislature of Georgia within the territory of the Cheroliee Nation of Indians, they claiming a right to file it in this court, in the exercise of its original jurisdiction, as a foreign nation. The Acts of the Legislature, if permitted to be carried into execution, would have subverted the tribal government of the Indians ; and sub- jpcted them to the jurisdiction of the State. The injunction was denied, on the ground tliat the Cherokee Nation could not be regarded as a foreign nation within the Judiciary Act ; and, that, therefore, they had no standing in court. But Chief Justice Marshall, who delivered the opinion of the majoritj-, verj- strongly intimated, that the bill was untenable on another ground, namelj-, that it involved simplj' a political question. He observed, "That the part of the bill which respects the land occupied bj- the Indians, and praj'S the aid of the court to pro- tect their possessions, may be more doubtful. The mere question of right might, perhaps, be decided by this court in a proper case with proper parties. But the court is asked to do more than decide on the title. The bill requires us to control the Legislature of Georgia, and to restrain the exertion of its phj'sical force. The propriety of such an interposition by the court ma}- be well questioned. It savors too much of the exercise of political power, to be within the province of the judi- cial department." Several opinions were delivered in the case ; a very elaborate one, by Mr. Justice Thompson, in which Judge Story con- curred. The}' maintained that the Cherokee Nation was a foreign nation within the Judiciary Act, and competent to bring the suit ; but agreed with the Cliief Justice, that all the matters set up in the bill involved political questions, with the exception of the right and title of the Indians to the possession of the land which they occupied. Mr. Justice Thompson, referring to this branch of the case, observed : " For the purpose of guarding against an}- erroneous conclusions, it is proper I should state, that I do not claim for this court, the exercise of juris- diction upon any matter properly falling under the denomination of political power. Relief to the full extent prayed for by the bill may be beyond the reach of this court. Much of the matters therein contained by way of complaint, would seem to depend for relief upon the exer- cise of political power ; and, as such, appropriately devolving upon the executive, and not the judicial department of the government. This court can grant relief so far, only, as the rights of persons or property '' are drawn in question, and have been infringed." And, in another part of the opinion, he returns, again, to this question, and is still more emphatic in disclaiming jurisdiction. He observes : " I certainly do SECT. II.] STATE OF GEORGIA V. STANTON. 205 not claim, as belonging to the judiciary, the exercise of political power. That belongs to another branch of the government. The protection and enforcement of aiany rights secured by treaties, most certainly do not belong to the judiciary. It is only where the rights of persons or prop- erty are involved, and when such rights can be presented under some judicial form of proceedings, that courts of justice can interpose relief. This court can have no right to pronounce an abstract opinion upon tlie constitutionality of a State^Iaw. Such law must be brought into actual, or threatened operation upon rights properly falling under judicial cog- nizance, or a remedy is not to be had here." We have said Mr. Justice Story concurred in this opinion ; and Mr. Justice Johnson, who also delivered one, recognized the same distinctions. 5 Peters, 29-30. By the second section of the third article of the Constitution " the judicial power extends to all cases, in law and equity, arising under the Constitution, the laws of the United States," &c., and as applicable to the case in hand, "to controversies, between a State and citizens of another State," — which controversies, under the Judiciary Act, may be brought, in the first instance, before this court in the exercise of its original jurisdiction, and we agree, that the bill filed, presents a case, which, if it be the subject of judicial cognizance, would, in form, come under a familiar head of equity jurisdiction, that is, jurisdiction to grant an injunction to restrain a party from a wrong or injury to the rights of another, where the danger, actual or threatened, is irreparable, or the remedy at law inadequate. But, according to the course of proceeding under this head in equitj-, in order to entitle the partj- to the remedy, a case must be presented appropriate for the exercise of judicial power ; the rights in danger, as we have seen, must be rights of persons or propertj', not merely political rights, which do not belong to the juris- diction of a court, either in law or equity. The remaining question on this branch of our inquiry is, whether, in view of the principles above stated, and which we have endeavored to explain, a case is made out in the bill of which this court can talie judicial cognizance. In looking into it, it will be seen that we are called upon to restrain the defendants, who represent the executive authority of the government, from carrying into execution certain Acts of Congress, inasmuch as such execution would annul, and totally abolish the existing State government of Georgia, and establish another and different one in its place ; in other words, would overthrow and destroy the corporate existence of the State, by depriving it of all the means and instrumentalities whereby its existence might, and, other- wise would, be maintained. This is the substance of the complaint, and of the relief prayed for. The bill, it is true, sets out in detail the different and substantial changes in the structure and organization of the existing govern- ment, as contemplated in these Acts of Congress ; which, it is charged, if carried into effect by the defendants, will work this destruction. But thej' are grievances, because they necessarily and inevitably tend to the 206 STATE OF GEORGIA V. STANTON. [CHAP. L overthrow of theState as an organized political body. ' They are stated, in detail, as laying a foundation for the interposition of the court to prevent the specific execution of them ; and the resulting threatened mischief. So in respect to the prayers of the bill. The first is, that the defendants may be enjoined against doing or permitting any act or thing, within or concerning the State, which is or may be directed, or required of them, by or under the two Acts of Congress complained of ; and the remaining four prayers are of the same character, except more specific as to the particular acts threatened to be committed. That these matters, both as stated in the body of the bill, and in the prayers for relief, call for the judgment of the court upon political questions, and, upon rights, not of persons or propertj', but of a political character, will hardlj' be denied. For the rights for the protection of which our authority is invoked, are the rights of sovereignty, of politi- cal jurisdiction, of government, of corporate existence as a State, with all its constitutional powers and privileges. No case of private rights or private property infringed, or in danger of actual or threatened infringement, is presented by the bill, in a judicial form, for the judg- ment of the court. It is true, the bill, in setting forth the political rights of the State, and of its people to be protected, among other matters, avers, that Georgia owns certain real estate and buildings therein. State Capitol, and ex- ecutive mansion, and other real and personal property ; and that put- ting the Acts of Congress into execution, and destroj-ing the State, would deprive it of the possession and enjoyment of its property-. But, it is apparent, that this reference to propert3- and statement concerning it, are only by way of showing one of the grievances resulting from the threatened destruction of the State, and in aggravation of it, not as a specific ground of relief. This matter of property is neither stated as an independent ground, nor is it noticed at all in the prayers for relief Indeed the case, as made in the bill, would have stopped far short of the relief sought by the State, and its main purpose and design given up, b}' restraining its remedial effect, simply to the protection of tlie title and possession of its pi'operty. Such relief would have called for a very different bill from tlie one before us. Having arrived at the conclusion that this court, for the reasons above stated, possesses no jurisdiction over the subject-matter pre- sented in the bill for relief, it is unimportant to examine the question as it respects jurisdiction over the parties defendants. The Chief Justice : Without being able to yield my assent to the grounds stated in the opinion just read for the dismissal of the com- plainant's bill, I concur full}' in the conclusion that the case made by the bill, is one of which this court has no jurisdiction. BiU dismissed for want of jurisdiction. CHAP. II.J MAKING AND CHANGING WKITTEN CONSTITUTIONS. 207 CHAPTER II. MAKING AND CHANGING WKITTEN CONSTITUTIONS. 1. Constitution of the United States. "In 1774, Massachusetts recommended the assembling of a Continen- tal Congress to deliberate upon the state of public affairs ; and accord- ing to her recommendation, delegates were appointed by the colonies for a congress to be held in Philadelphia in the autumn of the same j'ear. In some of the legislatures of the colonies, which were then in session, delegates were appointed by the popular or representative branch ; and in other cases they were appointed by conventions of the people in the colonies. The congress of delegates (calling them- selves in their more formal acts ' the delegates appointed by the good people of these colonies') assembled on the 4th of September, 1774; and having chosen oflflcers, they adopted certain fundamental rules for their proceedings. " Thus was organized under the auspices and with the consent of the people, acting directly in their primary, sovereign capacity, and with- out the intervention of the functionaries, to whom the ordinary powers of government were delegated in the colonies, the first general or na- tional government, which has been very aptly called ' the revolutionary government,' since in its origin and progress it was wholl3' conducted upon revolutionarj' principles. The congress thus assembled, exercised de facto and dejure a sovereign authority ; not as the delegated agents of the governments de facto of the colonies, but in virtue of original powers derived from the people. The revolutionary government, thus formed, terminated only when it was regularlj' superseded by the con- federated government under the articles finally ratified, as we shall hereafter see, in 1781. . . . "In Ware v. Hylton, 3 Ball. 199, Mr. Justice Chase (himself also a Revolutionary statesman) said : ' It has been inquired, what powers Congress possessed from the first meeting in September. 1774, until the ratification of the confederation on the 1st of March, 1781. It appears to me that the powers of Congress during that whole period were derived from the people they represented, expressly given throuo-h the medium of their State conventions or State legislatures ; or that after they were exercised, they were impliedly ratified by the acquies- cence and obedience of the people, &c. The powers of Congress origi- nated from necessity, and arose out of it, and were only limited by events; or, in other words, they were revolutionary in their nature. Their extent depended on the exigencies and necessities of public 208 MAKING AND CHANGING WRITTEN CONSTITUTIONS. [CHAP. U. affairs. I entertain this general idea, that the several States retained all internal sovereignty ; and that Congress properly possessed the. rights of external sovereignt3-. In deciding on the powers of Congress, and of the several States before the confederation, I see but one safe rule, namely, that all the powers actually exercised bj' Congress before that period were rightfully exercised on the presumption not to be con- troverted, that they were so authorized by the people they represented, by an express or implied grant ; and that all , the powers exercised by the State conventions or State legislatures were also rightfully exer- cised'on the same presumption of authority tfrom the people.' . . . " On the llth of June, 1776, the same day on which the committee for preparing the Declaration of Independence was appointed, Con- gress resolved that ' a committee be appointed to prepare and digest the form of a confederation to be entered into between these colonies ; ' and on the next day a committee was accordingly appointed, consist- ing of a member from each colony. Nearly a j-ear before this period {viz., on the 21st of Jul}', 1776), Dr. Franklin had submitted to. Con- gress a sketch of Articles of Confederation, which does not, however, appear to have been acted on. These articles contemplated a union until a reconciliation with Great Britain, and, on failure thereof, the confed- eration to be perpetual. " On the 12th of July, 1776, the committee appointed to prepare Arti- cles of Confederation presented a draft, which was in the handwriting of Mr. Dickenson, one of the committee, and a delegate from Pennsyl- vania. The draft, so reported, was debated from the 2 2d to the 31st of July, and on several days between the 5th and 20th of August, 1776. On this last day Congress, in committee of the whole, reported a new draft, which was ordered to be printed for the use of the members. " The subject seems not again to have been touched until the 8th of April, 1777, and the articles were debated at several times between that time and the 15th of November of the same year. On this last da}' the articles were reported with sundry amendments, and finally adopted by Congress. A committee was then appointed to draft, and they accordingly drafted a circular letter, requesting the States re- spectively to authorize their delegates in Congress to subscribe the same in behalf of the State. . . . " Many objections were stated, and many amendments were proposed. All of them, however, were rejected by Congress, not probably because they were all deemed inexpedient or improper in themselves, but from the danger of sending the instrument back again to all the States for reconsideration. Accordingly, on the 26th of June, 1778, a copy, engrossed for ratification, was prepared, and the ratification began on the 9 th day of July following. It was ratified by all the States, except Delaware and Maryland, in 1778 ; by Delaware in 1779, and by Marj'- land on the 1st of March, 1781, from which last date its final ratifica- tion took effect, and was joj-fully announced by Congress. . . . " Such is the substance of this celebrated instrument, under which the III CHAP. II.] MAKING AND CHANGING WKITTEN CONSTITUTIONS. 209 treaty of peace, acknowledging our independence, was negotiated, the War of the Revolution concluded, and the Union of the States main- tained until the adoption of the present Constitution. . . . " The leading defects of the confederation may be enumerated under the following heads : — " In the first place, there was an utter want of all coercive authority to carry into effect its own constitutional measures. This, of itself, was sufficient to destroj' its whole efficiency, as a superintending govern- ment, if that may be called a government which possessed no one solid attribute of power. It has been justly observed that, ' a government authorized to declare war, but relying on independent States for the means of prosecuting it ; capable of contracting debts, and of pledging the public faith for their payment, but depending on thirteen distinct sovereignties for the preservation of that faith, could only be rescued from ignominy and contempt by finding those sovereignties adminis- tered by men exempt from the passions incident to human nature.' That is, by supposing a case in which all human governments would become unnecessary, and all differences of opinion would become im- possible. In truth. Congress possessed only the power of recommenda- tion. It depended altogether upon the good-will of the States, whether a measure should be carried into effect or not. And it can furnish no matter of surprise, under such circumstances, that great differences of opinion as to measures should have existed in the legislatures of the different States ; and that a poUcj', strongly supported in some, should have been denounced as ruinous in others. Honest and enlightened men might well divide on such matters ; and in this perpetual conflict of opinion the State might feel itself justified in a silent or open disre- gard of the Act of Congress. . . . " In this state of things, commissioners were appointed by the Legisla- tures of Virginia and Maryland, early in 1785, to form a compact rela- tive to the navigation of the rivers Potomac and Pocomoke, and the Chesapeake Bay. The commissioners having met at Alexandria in Virginia in March, in that year, felt the want of more enlarged powers, and particularly of powers to provide for a local naval force and a tariff of duties upon imports. Upon receiving their recommendation, the Legislature of Virginia passed a resolution for laying the subject of a tariff before all the States composing the Union. Soon afterwards, in Januarj', 1786, the legislature adopted another resolution, appointing commissioners, ' who were to meet such as might be appointed by the other States in the Union at a time and place to, be agreed on, to take into consideration the trade of the United States ; to examine the rela- tive situation and trade of the States ; to consider how far a uniform system in their commercial relations may be necessary to their com- mon interest and their permanent harmony; and to report to the several States such an Act, relative to this great object, as, when unani- mously ratified by them,, will enable the United States in Congress assembled to provide for the same.' VOL. I. — 14 210 MAKING AND CHANGING WEITTEN CONSTITUTIONS. [CHAP. 11, . "These resolutions were communicated to the States, and a conven- tion of commissioners from five States only, namelj-, New Yorl{, New Jersej-, Pennsylvania, Delaware, and Virginia, met at Annapolis in September, 1786. After discussing the subject, they deemed more ample powers necessar\-, and as well from this consideration, as be- cause a small number onlj- of the States was represented, thej- agreed to come to no decision, but to frame a report to be laid before the seve- ral States, as well as before Congress. In this report they recommended the appointment of commissioners from all the States, ' to meet at Philadelphia on the second Mondaj- of Maj-, then next, to take into consideration the situation of the United States ; to devise snch further provisions as shall appear to them necessarj- to render the Constitution of the Federal government adequate to the exigencies of the Union ; and to report snch an Act for that purpose to the United States in Con- gress assembled, as, when agreed to hy them, and afterwards confirmed bj- the legislature of every State, will effectually provide for the same.' " On receiving this report, the Legislature of Virginia passed an Act for the appointment of delegates to meet such as might be appointed by other States, at Philadelphia. The report was also received in Congress. But no step was taken until the Legislatui-e of New York instructed its delegation in Congress to move a resolution, recommending to the seve- ral States to appoint deputies to meet in convention for the purpose of revising and proposing amendments to the Federal Constitution. On the 21st of Februarj-, 1787, a resolution was accordinglj- moved and carried in Congress, recommending a convention to meet in Philadel- phia, on the second Monday in Maj' ensuing, ' for the purpose of I'evis- ing the Articles of Confedei'ation, and reporting to Congress and the several legislatures such alterations- and provisions therein, as shall, 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 alarming insurrection then existing in Massachusetts, without doubt, had no small share in producing this result. The report of Congress on that subject at once demonstrates their fears and their political weakness. " At the time and place appointed, the representatives of twelve States assembled. Rhode Island alone declined to appoint any on this mo- mentous occasion. After verj- protracted deliberations, the convention finally adopted the plan of the present Constitution on the 17th of Sep- tember, 1787 ; and by a contemporaneous resolution, directed it to be ' laid bofoi'e the United States in Congress assembled,' and declared their opinion, ' that it should afterwards be submitted to a convention of delegates chosen in each State by the people thereof, under a recom- mendation of its legislature for their assent and ratification ; ' and that each convention assenting to and ratifying the same should give notice thereof to Congress. The convention, b}- a further resolution, declared their opinion, that as soon as nine States had ratified the Constitution, Congress should fix a day on which electors should be appointed by the CHAP. II.] MAKIifG AND CHANGING WRITTEN CONSTITUTIONS. 211 States which should have ratified the same, and a daj- on which the elec- tors should assemble and vote for the president, and time and place of commencing proceedings under the Constitution ; and that after such publication the electors should be appointed and the senators and repre- sentatives elected. The same resohition contained further recommen- dations for the purpose of carr^-ing the Constitution into effect. . . . " Congress, having received the report of the convention on the 28th of September, 1787, unanimously resolved, ' that the said report, with the resolutions and letter accompanying the same, be transmitted to the several legislatures in order to be submitted to a convention of dele- gates chosen in each State by the people tiiereof, in conformity to the resolves of the convention, made and provided in that case.' " Conventions in the various States which had been represented in the general convention were accordingly called by their respective legisla- tures ; and the Constitution having been ratified by eleven out of the twelve States, Congress, on the 13th of September, 1788, passed a reso- lution appointing the first Wednesday in January following for the choice of electors of president ; the first Wednesday of February fol- lowing, for the assembling of the electors to vote for a president ; and the first Wednesday of March following, at the then seat of Congress [New York], the time and place for commencing proceedings under the Constitution. Electors were accordingly appointed in the several States, who met and gave their votes for a president ; and the other elections for senators and representatives^ having been duly made, on Wednesday, the 4lh of March, 1789, Congress assembled and com- menced proceedings under the new Constitution. A quorum of both Houses, however, did not assemble until the 6th of April, when, the votes for President being counted, it was found that George Washing- ton was unanimouslj- elected President, and John Adams was elected Vice-President. On the 30th of April President Washington was sworn into oflBce, and the government then went into full operation in all its departments. " North Carolina had not, as yet, ratified the Constitution. The first convention called in that State, in August, 1788, refused to ratify it without some previous amendments' and a declaration of rights. In a second convention, however, called in November, 1789, this State adopted the Constitution. The State of Rhode Island had declined to call a convention; but finally, by a convention held in Maj', 1790, its assent was obtained ; and thus all the thirteen original States became parties to the new government." — 1 Story's Commentaries on the Con- stitution of the United States (5th ed.), §§ 200, 201, 216, 222-224, 225, 242, 248, 272-276, 277-280.' ^ Eeprinted by permission. — Ed. 212 MAKING AND CHANGING WRITTEN CONSTITUTIONS. [CHAP. II. NOTE. For the methods of changing the Constitution of the United States, see Article y. of that instrument. Can it legally be changed in any other way 'i See Jameson, Const. Conv. (4th ed.) s. 575. It should, however, be carefully noted that the term " sovereignty," as long as it is accurately employed in the sense in which Austin sometimes (compare Austin, Juris- prudence, i. (4th ed.) p. 268) uses it, is a merely legal conception, and means simply the power of law-making unrestricted by any legal limit. If the term " sovereignty " be thus used, the sovereign power under the English'*Constitution is clearly " Parfia- ment." But the word " sovereignty " is sometimes employed in a political rather than in a strictly legal sense. That body is " politically " sovereign or supreme in a State the will of which is ultimately obeyed by the citizens of the State. In this sense of the word the electors of Great Britain may be said to be, together with tlie Crown and the Lords, or perhaps in strict accuracy independently of the King and the Peers, the body in which sovereign power is vested. For, as things now stand, the will of the electorate and certainly of the electorate in combination with the Lords and the Crown is sure ultimately to prevail on all subjects to be determined by the British Govern- ment. The matter indeed may be carried a little further, and we may assert that the arrangements of the Constitution are now such as to insure that the will of the electors shall by regular and constitutional means always in the end assert itself as the pre- dominant influence in the country. But this is a political, not a legal fact. The elec- tors can in the long run always enforce their will. But the courts will take no notice of the will of the electors. The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors. The political sense of the word " sovereignty " is, it is true, fully as important as the legal sense or more so. But the two significations, though intimately connected together, are essen- tially different, and in some parts of his work Austin has apparently confused the one sense with the other. — Dicet, Law of the Constitution (4th ed.), 69, 71. In spite of the doctrine enunciated by some jurists that in every country there must be found some person or body legally capable of changing every institution thereof, it is hard to see why it should be held inconceivable i that the founders of a polity should have deliberately omitted to provide any means for lawfully changing its bases. Such an omission would not be unnatural on the part of the authors of a Federal union, since one main object of the States entering into the compact is to prevent further encroachments upon their several State rights ; and in the fifth article of the United States Constitution may still be read the record of an attempt to give to some of its provisions temporary immutability. The question, however, whether a Federal Constitution necessarily involves the existence of some ultimate sovereign power authorized to amend or alter its terms is of merely speculative interest, for under existing Federal governments the Constitution will be found to provide the means for its own improvement. It is, at any rate, certain that whenever the foun- 1 Eminent American lawyers, whose opinion is entitled to the highest respect, maintain that under the Constitution there exists no person, or body of persons, pos- sessed of legal sovereignty, in the sense given by Austin to that term, and it is diffi- cult to see that this opinion involves any absurdity. Compare Constitution of United States, art. 5. It would appear further that certain rights reserved under the Con- stitution of the German Empire to particular States cannot under the Constitution be taken away from a State without its assent. (See Reichsverfassung, art. 78.) The truth is that a Federal Constitution partakes of the nature of a treaty, and it is quite conceivable that the authors of the Constitution may intend to provide no constitu- tional means of changing its terms, except the assent of all the parties to the treaty. CHAP. II.] MAKING AND CHANGING WRITTEN CONSTITUTIONS. 213 ders of a Federal government hold the maintenance of a Federal system to be of pri- mary importance, supreme legislative power cannot in a confederacy be vested in any ordinary legislature acting under the Constitution.! For so to vest legislative sover- eignty would be inconsistent with the aim of Federalism, namely, tlie permanent division between the spheres of the National Government and of the several States. If Congress could change the Constitution, New York and Massachusetts would have no legal guarantee for the amount of independence reserved to them under the Constitu- tion, and would be as subject to the sovereign power of Congress as is Scotland to the sovereignty of Parliament ; the Union would cease to be a Federal State, and would become a unitarian republic. K, on the other hand, the Legislature of South Caro- lina could of its own will amend the Constitution, the authority of the central gov- ernment would (from a legal point of view) be illusory ; the United States would sinlc from a nation into a collection of independent countries united by the bond of a more or less permanent alliance. Hence the power of amending the Constitution has been placed, so to speak, outside tlie Constitution, and one may say, with sufficient accuracy for our present purpose, that the legal sovereignty of the United States resides in the majority of a body constituted by the joint action of three fourths of the several States at any time belonging to the Union. See Constitution of U. S., art. 5. Now from the necessity for placing ultimate legislative authority in some body outside the Constitu- tion a remarkable consequence ensues. Under a federal as under a unitarian system there exists a sovereign power, but the sovereign is in a Federal State a despot hard to rouse. He is not, like the English Parliament, an ever-wakefnl legislator, but a monarch who slumbers and sleeps. The sovereign of the United States has been roused to serious action but once during the course of ninety years. It needed the thunder of the Civil War to break his repose, and it may be doubted whether any- thing short of impending revolution will ever again arouse him to activity. But a monarch who slumbers for years is like a monarch who does not exist. A Federal Constitution is capable of change, but for all that, a, Federal Constitution is apt to be unchangeable. /6. 137-140. — Ed. 2. State CoNSTirvTiONS. " When the colonies entered upon that course of opposition to the Crown which ripened into the Revolution, it was neither their intention nor their desire to effect a separation from Great Britain. .• . . The organizations provided were of the simplest character, consisting of Provincial Conventions or Congresses, modelled on the same plan as the General Congress at Philadelphia, comprising a single chamber, in which was vested all the powers of government. These bodies, found in all the colonies, save Connecticut and Rhode Island, whose Assemblies, fairly chosen by the people, it was not found necessary to supersede, were made up of deputies elected by the con- stituencies established under the Crown, or appointed by meetings of the principal citizens or by the municipal authorities of the chief towns and cities. All legislative authority was exercised by those bodies directly. Their executive functions were intrusted to Committees of Correspondence, of Public Safety, and the like, appointed by themselves, and during the sittings of the Conventions or Congresses, were dis- charged under their own supervision. In the interims between their sessions, however, the powers of those committees were substantially absolute. ' Under the Constitntion of the German Empire the Imperial legislative body can amend the Constitution. But the character of the Federal Council (Bundesrath) gives ample security for the protection of State rights. No change in the Constitution can be effected which is opposed by fourteen votes in the Federal Council. This gives a veto on change to any one of three States and to combinations of minor States. The extent to which national sentiment and State patriotism respectively predominate under -d, Federal system may be conjectured from the nature of the autliority which has the right to modify the Constitution. . . . 214 MAKING AND CHANGING WRITTEN CONSTITUTIONS. [CHAP. II. " Under organizations thus loose and nnrestricted, goremment was carried on in the colonies for many months, and that without protest or discontent, so long as the general expectation of a return to allegiance, following upon a redress of grievances, continued to exist. As time advanced, however, and it became evident, on the ono hand, that the mother country would not purchase the submission of her revolted subjects by compromise or even by conciliation, and, on the other, that the work of subduing them, if possible at all, could be accomplished only by a long and bloody contest, there arose a general desire for the establishment of more regular gorern- ments tlian those by Congresses and committees. Thus, in May, 1775, the Provincial Convention of Massachusetts, charged with the government of the colony, applied to the Congress at Philadelphia for explicit advice respecting the proper exercise of the powers of government. In reply, after declaring that no obedience was due to the Act of Parliament lately passed for altering her charter, that body recommended that the convention should write letters to the several towns entitled to representation in the Assembly, requesting them to choose representatives to form an Assembly, and to instruct the latter, when convened, to elect counsellors ; adding their wish, that the bodies thus formed should exercise the powers of government until a governor of the king's appointment would consent to govern the colony according to its charter. This answer was made in June, 1775, and the advice given was followed, and the govern- ment thus constituted was the only one Massachusetts had until the establishment of her first Constitution in 1780. In October, 1775, the delegates to the Continental Congress from New Hampshire laid before that body instructions, received by them from the New Hampshire Convention, to obtain the advice and direction of Congress in relation to the establishment of civil government in that colony. Similar requests were, about the same time, sent up from the Provincial Conventions of Virginia and South Carolina. At length, on the 3d and 4th of November, 1775, Congress agreed upon a reply to these applications, in which those bodies were advised ' to call a full and free representation of the people, in order to form such a form of government as, in their judgment, would best promote the happiness of the people, and most effectu- ally secure peace and good order in their provinces during the continuance of the dis- pute with Great Britain.' . . " The first colony to act upon the recommendations of Congress was New Hamp- shire. In less than a fortnight after the passage by Congress of the resolutions of November 3d, 1775, the Provincial Convention of that Colony took into consideration the mode in which ' a full and free representation ' for the purpose indicated by Congress .should be constituted. It was finally determined that it should take the form of a new convention, to be summoned by the Provincial Convention, and that for the purpose of apportioning fairly the delegates to be chosen to it, a census of the inhabi- tants should be taken. It was moreover recommended, that the representatives chosen ' should be empowered by their constituents to assume government, as recom- mended by the General Congress, and to continue for one whole year from the time of such assumption.' Having recommended this plan, and 'sent copies of it to the sev- eral towns, the convention dissolved.' In pursuance of the recommendations accom- panying the plan, a new convention was chosen, and assembled on the 21st of December following, by which the first Constitution of New Hampshire was framed, and her first formal government, independent of the Crown, established. According to Dr. Belk- nap, the historian of the State, ' as soon as the new convention came together, they drew up a temporary form of government ; and, agreeably to the trust reposed in them by their constituents, having assumed the name and authority of a House of Repre- sentatives, they proceeded to choose twelve persons, to be a distinct branch of the legislature, by the name of a council.' This form of government was practically lim- ited to a single year by an ordinance providing ' that the present Assembly should subsist one year, and if the dispute with Great Britain should continue longer, and the General Congress should give no directions to the contrary, that precepts should be issued annually ' for the return of ' new Counsellors and Representatives.' By the con- vention thus called and organized were assumed all the powers of government. In a word, it was a revolutionary convention. As distinguished from the Dody itself, there was no judiciary, and no executive. The only feature in which it resembled a regularly CI-IAP. II.] MAKING AST) CHANGING WRITTEN CONSTITUTIONS. 215 constituted goverument, was in its division into two chamhers. But even this resemblance vanishes, when it is considered that it was a voluntary division, the council being its own creation, and, of course, as little independent of the main body as any one of its committees. AU the powers of the State were concentrated in that single body, which was revolutionary not only in its proceedings, but in its origin, as called by one revo- lutionary convention at the instance of another, and as exercising, when assembled, the functions of a goverument, provisioually, in place of that by which it waa con- vened. " The people of New Hampshire, however, becoming dissatisfied with the temporary Constitution of 1776, an attempt was made three years later to frame a new one. A convention of delegates, chosen for that purpose, under the direction, of tlie existing government, drew up and presented to the people a form of a constitution, but so deficient in its principles and so inadequate in its provisions, that, being proposed to the people in their town-meetings, it was rejected. On the failure to adopt this, a new convention was elected for the same purpose, and commenced its sessions in 1781. The year before, Massachusetts had adopted a constitution, in the main from a draft prepared by John Adams, which was supposed to be an improvement on all that had been framed in America. Having the advantage of this, the New Hampshire Conven- tion digested a plan and submitted it to the people in their town-meetings, with a request that they should state their objections distinctly to any particular part, and return them to the convention at a fixed time. The objections were so many and various, that it became necessary to alter the form and send it out a second time. The second plan was generally approved by the people, and thus, finally, after nine sessions of the convention, running through more than two years, a constitution was adopted and put in operation, — the instrument being completed October 31, 1783, and estab- lished with religious solemnities June 2, 1784. " Of these two last conventions, it is to be noted, that, unlike the first, they were, in the strict sense of the term, constitutional conventions. They were initialed by the existing goverument of the State, which, whatever may be thought of its legitimacy or regularity, was a de facto government, by revolution placed in power, and made the basis on which the political structure of the State has ever since rested ; the people were fairly represented in them ; they confined themselves strictly to their constitu- tional duty, that of proposing a code of organic laws, abstaining from all usurpation of governmental powers; and, finally, they severally submitted their projected consti- tutions to a vote of the electors of the State, in their town-meetings — an act which, as we shall see, constitutes the best guarantee of the sovereign right of the people over the form of their goverument that has ever been devised." — Jameson, Const. C'onv. (4th ed.) ss. 126, 127, 131, 132.1 # " At a quite early date, June 6, 1776, a proposition was made in the General Court ^ that a committee should be appointed to prepare a form of government, and such committee was appointed ; but the business was not proceeded in, as the opinion was generally expressed that the subject should originate with the people, who were the proper source of the organic law. The House therefore contented themselves with recommending to their constituents to choose their deputies to the next General Court with power to adopt a form of government for the State ; and, to give greater effect to this recommendation, it was re- newed more formally in the following spring. In this interval, a con- 1 Reprinted by permission of the publishers, Messrs. Callaghan & Co. of Chicago, and of the owners of the copyright. — Ed. 2 Of Massachusetts. The facts relating to the formation of this particular consti- tution are here given because it is the oldest of those now existing, and for other reasons, indicated at pp. 54-55, ante. — Ed. 216 MAKING AND CHANGING WEiri'EN CONSTITUTIONS. [CHAP. II. vention was held in the county of Worcester of the Committees of Safet}' from a majorit}' of the towns, who voted that it would be im- proper for the existing General Court to form a constitution, but that a convention of delegates from all the towns in the State should be called for that purpose. " How far the decision of this convention influenced the action of the people does not appear ; but a majority of the towns in the State, it would seem, chose their representatives for the next annual session of the General Court with a special view, or, at least, with an implied consent, to the formation of a constitution b^- that bod^'. The citizens of Boston, and of a number of other towns, as well as the Committees of Safetj- in the county of Worcester, were opposed to this proceeding, and favored the calling of a convention of delegates. . . . "At the usual time the General Court was convened; and, a few weeks after the opening 'of its sessions, a committee was appointed, consisting of four members of the Council and eight members of the House, for the purpose of preparing a constitution. Of the proceedings of this committee but little is known, as their records have not been published ; but the result of their deliberations was a draft of a constitution, which was debated at length, approved by the conven- tion, February 28, 1778, presented to the legislature, and submitted to the people, by whom it was rejected. . . . " The opinion was still current that a convention was the proper body to decide upon a Constitution for the State, and that no other body could successfully discharge that dutj'. A majority of the people, therefore, favored the calling of such a convention ; and, at the annual election in the following j'ear, by the advice of the General Court pre- viously given, the returns from the towns were so conclusive that pre- cepts were issued for the choice of delegates, to meet at Cambridge in the ensuing September." — 3 Barry's Hist. Mass. 173-176. Ik the House of RepeesehtativeS, Feb. 19, 1779. Wfiereas, the Constitution or Form of Civil Government, which was proposed by the late convention of this State to the people thereof, bath been disapproved by a majoritj' of the inhabitants of said State, — And whereas, It is doubtful from the representations made to this court,' what are the sentiments of the major part of the good people of this State, as to the expediency of now proceeding to form a new constitution of government, — Therefore resolved. That the selectmen of the several towns within this State cause the freeholders and other inhabitants in their respective towns, duly qualified to vote for representatives,'' to be lawfully warned to meet together in some convenient place therein, on or before the last Wednesday of May next, to consider of, and determine upon, the fol- lowing questions : 1 For the property qualifications of such electors see the Province Charter. 1 Acts and Kesolves of the Province, 11-12 ; 1 Poore's Charters, 949. — Ed. CHAP. II.J MAKING AND CHANGING WRITTEN CONSTITUTIONS. 217 First. — Whether they choose, at this time, to have a new consti- tution or form of government made. Secondly Whether tliey will empower their representatives for the next year to vote for the calling a State convention, for the sole purpose of forming a new constitution ; provided it shall appear to them, on examination, that a major part of the people present and voting at the meetings, called in the manner and for the purpose afore- said, shall have answered the first question in the affirmative? And in order that the sense of the people may be known thereon, — Be it further resolved. That the selectmen of each town be and hereby are directed to return into the secretary's oflBce, on or before the first Wednesday in June next, the doings of their respective towns, on the first question above mentioned, certifying the numbers voting in the affirmative, and the numbers voting in the negative, on said question. Sent up for concurrence. John Pickering, Speaker. In Codncil, February 20, 1779. Bead and concurred. John Avery, D. Secretary. Journal of Mass. Convention, 1779-80, pp. 189, 190. Ik the House of Representatives, June 15, 1779. Whereas, Bj' the returns made into the secretary's office, from more than two thirds of the towns belonging to this State, agreeably to a Kesolve of the General Court, of the 20th of February last, it appears, that a large majority of the inhabitants of such towns, as have made return as aforesaid, think it proper to have a new constitution or form of government, and are of opinion, that the same ought to be formed bj- a convention of delegates, who should be specially authorized to meet for this purpose. Therefore resolved. That it be, and it hereby is recommended to the several inhabitants of the several towns in this State to form a convention, for the sole purpose of framing a new constitution, con- sisting of such number of delegates, from each town throughout this State, as every different town is entitled to send representatives to the General Court, to meet at Cambridge, in the county of Middlesex, on the first daj- of September next. And the selectmen of the several towns and places within this State, empowered by the laws thereof to send members to the General Assembly, are hereby authorized and directed to call a meeting of their respective towns, at least fourteen days before the meeting of said convention, to elect one or more dele- gates, to represent them in said convention, at which meeting, for the election of such delegate or delegates, every freeman, inhabitant of such town, who is twenty-one years of age, shall have a right to vote. Be it also resolved. That it be, and it hereby is recommended, to the inhabitants of the several towns in this State, to instruct their respecti'>'e delegates, to cause a printed copy of the form of a constitution 218 MAKING AND CHANGING WRITTEN CONSTITUTIONS. [CHAP. 11. they ma^- agree upon in convention, to be transmitted to the selectmen of eacli town, and the committee of each plantation ; and the said selectmen and committees are hereby empowered and directed to lay the same before their respective towns and plantations, at a regular meeting of the male inhabitants thereof, being free and twenty-one years of age, to be called for that purpose, in order to its being duly considered and approved or disapproved bj' said towns and planta- tions. And it is also recommended to the several towns within this State, to instruct their respective representatives to establish the said form of a Constitution, as the Constitution and form of government of the State of Massachusetts Bay, if, upon a fair examination, it shall appear, that it is approved of by at least two thirds of those, who are free and twentj--one years of age, belonging to this State, and present in the several meetings. Sent up for concurrence. .John Hancock, Speaker'. In Council, June 17, 1779. Read and concurred. John Avert, Deputy Secretary. Consented to by a major part of the Council. A true copy. Attest, John Avert, Deputy Secretary. lb. 5, 6. The Convention met at Cambridge, September 1, 1779. In CoNVEifTiON, March 2, 1780. Hesoloed, That this convention be adjourned to the first Wednesday in June next, to meet at Boston ; and that eighteen hundred copies of the form of government, which shall be agreed upon, be printed ; and including such as shall be ordered to each member of the convention, be sent to the selectmen of each town, and the committees of each plantation, under the direction of a committee to be appointed for the purpose : and that they be requested, as soon as may be, to laj' them- before the inhabitants of their respective towns and plantations. And if the major part of the inhabitants of the said towns and plantations disapprove of any particular part of the same, that they be desired to state their objections distinctly, and the reasons therefor : and the select- men and committees aforesaid are desired to transmit the same to the secretarj' of the convention, on the first Wednesday in June, or if may be, on the last Wednesday in May, in order to his la3ing the same before a committee, to be appointed for the purpose of examining and arranging them for the revision and consideration of the convention at the adjournment ; with the number of voters in the said town and plan- tation meetings, on each side of every question ; in order that the said convention, at the adjournment, may collect the general sense of their constituents on the several parts of the proposed Constitution : And if there doth not appear to be two thirds of their constituents in favor thereof, that the convention maj- alter it in such a manner as that it CHAP. 11.] MAKING AND CHANGING WRITTEN CONSTITUTIONS. 219 may be agreeable to the sentiments of two thirds of the voters through- out the State. Resolved, That it be recommended to the inhabitants of the several towns and plantations in this State, to empower their delegates, at the next session of this convention, to agree upon a time when this form of government shall talie place, without returning the same again to the people : Provided, That two thirds of tlie male inhabitants of the age of twenty-one years and upwards, voting in tlie several town and plantation meetings, shall agree to the same, or the Con- vention shall conform it to the sentiments of two thirds of the people as aforesaid. Mesolved, That the towns and plantations through this State have a right to choose other delegates, instead of the present members, to meet in convention on the first Wednesday in June next, if they see fit. A true copy. Attest, Samuel Bareett, Secretary. lb. 168, 1G9. In Convention, June 16, 1780. Whereas, Upon due examination of the returns made by the several towns and plantations, within this State, it appears that more than two thirds of the inhabitants thereof, who have voted on the same, have expressed their approbation of the form of government agreed upon by this convention, and laid before them for their consideration, in con- formity to a Resolve of the said convention, of the second day of March last. This convention do, hereupon, declare the said form to be the constitution of government established by and for the inhabitants of the State of Massachusetts Ba}'. And as the said inhabitants have authorized and empowered this convention to agree upon a time when the same shall take place, in order that the good people of this State may have the benefit thereof, as soon as conveniently may be. It is resolved, That the said Constitution or frame of government shall take place on the last Wednesday in October next ; and not before, for any purpose, saVe only for that of making elections agree- able to this resolution. And the first General Court under the same shall be holden on the said last Wednesday in October, at the State-House in Boston, at ten o'clock in the forenoon. And in order thereto, there shall be a meeting of the inhabitants of each town and plantation in the several counties within this State, legally warned and held, on the first Monday in September next, for the purpose of electing a governor, lieutenant- governor, and persons for councillors and senators. And there shall also be a meeting of the Inhabitants of the several towns within this State, duly warned and held, some time in October next, and ten days at the least before the last Wednesday in the same month, for the pur- pose of choosing representatives to serve in the said General Court. And the selectmen are hereby enjoined to call such meetings and to 220 MAKING AND CHANGING WEITTEN CONSTITUTIONS. [CHAP. II. preside at the same. And in all elections, and in making, receiving, and examining returns, and in conducting the whole business of oi-gan- izing and establishing the said General Court, the same rules are to be observed, that are prescribed in the form of government for making such elections, and for the constituting the first General Court ; saving onl}' the difference of time.* And be it further resolved, That Samuel Barrett, Esq. (secretary to this convention), do, on or before the fifteenth daj' of July next, cause printed copies of this resolution to be sent to the selectmen of the several towns, and the assessors of the* several plantations afore- said, who are respectively to perform the duties required bj- this resolu- tion, and to make seasonable and regular returns of the persons elected to the several oflflces herein mentioned, into the secretarj-'s office of this State, agreeably to the rules contained in the form of government above referred to. In the name, and pursuant to a resolution of the convention. James Bowdoin, President. Attest, Samuel Barrett, Secretary. lb. 186, 187. NOTE. No steps were taken in 1795 towards revising the Constitution of Massachusetts under Part II. c. 6, art. 10, — the only provision made for that purpose in the instra- ment. Nevertheless, in 1820, the legislature passed an Act submitting to the electors the question whether it was expedient to hold a convention for " revising or altering " the Constitution, and providing, in case of an affirmative vote, for the subsequent elec- tion of delegates and the holding of the convention. In accordance with this law, » convention met in 1820, and fourteen amendments were submitted to the people (i. e., electors), of which nine were adopted. The last of these, Art. IX., will be found below, in the Appendix to Part I. p. 399, n. In 185.3, another convention was called for the same purpose and in the same manner as that of 1820. It submitted to the people a new draft of the Constitution ; this was rejected. As regards the now prevalent mode of amending, by means of a legislative proposal submitted to the people, — adopted in the ninth Massachusetts Amendment, — the origin of it is traced to the Articles of Confederation, Art. XIII-, requiring that any alteration should be " agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State." And so the Constitution of the United States, Art. v., provided for amendments through a legislative proposal ratified by the States. As among State constitutions, Connecticut seems to have been the first to introduce it. An intelligent and accurate French writer has said : " La procedure inangur^e au Massachusetts [II. c. 6, 10] ctait bonne pour une revision totale, mais cette occurrence dtait rare et, dans les cas de plus en plus frequents oil Ton d^sirait une revision par- tielle, ne comportant parfois qu'un seul amendement, I'election d'une convention, apres consultation prealable du peuple, etait un moyen cofiteux, encombrant. et susceptible de provoqner une agitation inutile. II appartenait ^ un autre Etat de la Nouvelle- Angleterre de donner sa formule a la m^thode qui devait r^pondre k cette necessity nonvelle et prevaloir ^galement pen a peu dans I'Union. "En 1818, lorsque 1 antique charte dn Connecticut, depassee par le progres de cette d^mocratie dont elle avait elle-meme fraye le chemin, fut remplac^e par la Constitution I Eor the property qualifications of the electors under the new Constitution, see Const. Mass. Part II. c. 1, § 2, art. 2, and § 3, art. 4; and c. 2, § 1, art. 3. — Ed. CHAP. II.] OPINION OF THE JUSTICES. 221 actuelle, la convention d'Hartford, avant de soumettre son oeuvre an peuple, y insdra Tarticle suivant : — " ' Art. II. — Lorsque la chambre des representants jugera n^cessaire d'apporter des amendements ou des modifications k cette Constitution, la majority pourra en faiie la proposition. Lea amendements projetes seront renvoye's k la pruchaiue assemble ge'nerale et publics avec les lois qui pourront avoir ^t^ faites pendant la session. Si, par un vote de division provoquc au cours de la session suivante, les deux tiers des membres de chaque cliambre approuvent les dits amendements, ils seront transmis pai le chancelier aux secretaires muuicipaux {town clerks) de chacunes des communes de I'feat. " ' Ces derniers auront & les soumettre aux habitants, pour €tre examines, dans un town meeting legalement convoque et tenu k cet effet. S'il resulte de cette consultation, dout la loi de'terminera les formes, que ces amendements out ete' sanctionnds par la mar jorite des flecteurs presents, ils deviendront executoires comme partie integrante de cette Constitution.' " Cet article etait le re'sultat d'une transaction heureuse entre le systeme du Massa- chusetts et un autre, celui qu'avait consacre', en 1776, la Constitution du Maryland et qu'avait adopts la Caroline meridionale, en 1790, et la G^orgie en 1798. Dans ces Etats, un vote des deux chambres, r^pe'te apr&s une election gen^rale, ^tait la condition requise pour I'adoption d'un ou de plusieurs amendements constitutionnels. Cette pro- cedure facilitait, dans une certaine mesure, la revision partielle. La convention d'Hartford en fit son profit, mais sans abandonner le principe que le peuple doit avoir le dernier mot. Dans la disposition qu'elle r^digea, les de'put^s & la legislature re- ijurent le droit d'initiative, exerc^ k la majorite des deux tiers, ce qui ^tait la clause ins^- ree en 1787 dans la Constitution Federale, et les town meetings conservferent la decision, conformement aux traditions de la Nouvelle-Angleterre. " L'article passa presque aussitot dans la Constitution du Maine, vaste district du Massachusetts, dont on faisait un nouvel Etat. La Convention de Portland, qui ^abora cette Constitution, en 1819, ftait anim^e d'un esprit trfes democratique. En s'assirai- lant l'article cre'e par la Convention d'Hartford, elle y apporta, d'embl^e, une modifica- tion qui ne devait etre imit^e que beaucoup plus tard dans les autres Etats. Elle y supprima la condition de la double epreuve pour I'exercice du droit d'initiative. L'adoption par une seule leijislature, h, la majority des deux tiers des membres dans les deux chambres, lui paraissait sufiisante pour qu'un amendement pflt etre soumis au peuple." Annales de I'ifecole Libre des Sciences Politiques (1893) ; L' AaUissemenl et la Re- vision des Constitutions aux £tats-Unis d'AmSrique, by Charles Borgeaud. Jameson's note ou this subject (Const. Conv. (4th ed.) § 574 d, note) is not entirely accurate. — Ed. OPINION OF THE JUSTICES. The Justices of the Supreme Judicial Court of Massachu- setts. 1833. [6 Cush. 573.] The justices of the Supreme Judicial Court have taken into consider- ation the two questions submitted to them [by the House of Eepresenta- tives], and upon which the honorable House has requested their opinion, of the following tenor, namely : — First. Whether, if the legislature should submit to the people to vote upon the expediency of having a convention of delegates of the people, 222 OPINION OF THE JUSTICES. [CHAP. U. for the purpose of revising or altering the Constitution of the Common- wealth in any specified parts of the same ; and a majority of the people voting thereon should decide in favor thereof, could such convention holden in pursuance thereof act upon, and propose to the people, amend- ments in other parts of the Constitution not so specified ? Second. Can any specific and particular amendment or amendments to the Constitution be made in anj- other manner than that prescribed in the ninth article of the amendments adopted in 1820? And thereupon have the honor to submit the following opinion : — The court do not understand that it was* the intention of the House of Representatives to request their opinion upon the natural right of the people in cases of great emergencj", or upon the obvious failure of their existing Constitution to accomplish the objects for which it was designed, to provide for the amendment or alteration of their fundamental laws ; nor what would be the effect of any change and alteration of their Con- stitution, made under such circumstances and sanctioned bj' the assent of the people. Such a view of the subject would involve the general question of natural rights, and the inherent and fundamental principles upon which civil society is founded, rather than any question upon the nature, construction, or operation of the existing Constitution of the Commonwealth, and the laws made under it. We presume, therefore, that the opinion requested applies to the existing Constitution and laws of the Commonwealth, and the rights and powers derived from and under them. Considering the questions in this light, we are of opinion, taking the second question first, that, under and pursuant to the existing Con- stitution, there is no authority given by any reasonable construction or necessary- implication, b^' which anj- specific and particular amendment or amendments of the Constitution can be made, in any other manner than that prescribed in the ninth article of the amendments adopted in 1820. Considering that previous to 1820 no mode was provided by the Constitution for its own amendment, that no other power for that pur- pose, than in the mode alluded to, is anywhere given in the Constitu- tion, by implication or otherwise, and that the mode thereby provided appears manifestly to have been carefuU}' considered, and the power of altering the Constitution thereby conferred to have been cautiously re- strained and guarded, we think a strong implication arises against the existence of any other power, under the Constitution, for the same purposes. Upon the first question, considering that the Constitution has vested no authority in the legislature, in its ordinary action, to provide by law for submitting to the people the expediencj- of calling a convention of delegates, for the purpose of revising or altering the Constitution of the Commonwealth, it is difficult to.give an opinion upon the question, what would be the power of such a convention, if called. If, however, the people should, by the terms of their vote, decide to call a convention of delegates to consider the expediency- of altering the Constitution in some particular part thereof, we are of opinion that such delegates would CHAP. II.] IN RE THE CONSTITUTIONAL CONVENTION. 223 derive their whole authority and commission from such vote ; and, upon the general principles governing the delegation of power and authority, they would have no right, under such vote, to act upon and propose amendments in other parts of the Constitution not so specified. Lemuel Shaw, Samuel Putnam, S. S. Wilde, January 24, 1833. Marcus Moeton. In ke the constitutional CONVENTION. The Justices of the Supreme Court of Rhode Island. 1883. [14 R. I. 649.] Article 13 of the Constitution of the State of Ehode Island is as follows : " The General Assembly may propose amendments to this Constitu- tion by the votes of a majority of all the members elected to each House. Such propositions for amendment shall be published in the newspapers, and printed copies of them shall be sent by the Secretary of State, with the names of all the members who shall have voted thereon, with the yeas and nays, to all the town and city clerks in the State. The said propositions shall be, by said clerks, inserted in the warrants or notices by them issued for warning the next annual town and ward meetings in April ; and the clerks shall read said propositions to the electors when thus assembled, with the names of all the representa- lives and senators who shall have voted thereon, with the yeas and naj-s, before the election of senators and representatives shall be had. If a majority of all the members elected to each House, at said annual meeting, shall approve any proposition thus made, the same shall be published and submitted to the electors in the mode provided in the Act of approval ; and if then approved by three fifths of the electors of the State present and voting thereon in town and ward meetings, it shall become a part of the Constitution of the State." Article 10, section 3, provides, that " the judges of the Supreme Court shall . . . give their written opinion upon any question of law whenever requested ... by either House of the General Assembly." March 20, 1883, the Senate of the State adopted the following resolution : " Whereas, a diflFerence of opinion has arisen among members of the General Assembly, " I. As to the legal competency thereof under the Constitution of the State to call upon the electors to elect members to constitute a con- vention to frame a new Constitution of the State, and to provide that the new Constitution should be submitted for adoption, either to the qualified electors of the State, or to the persons who would be entitled 224 IN KE THE CONSTITUTIONAL CONVENTION. [CHAP. II. to vote under said new Constitution, for a,doption, and if a majority of sucli electors or persons voting should vote in favor thereof, whether the new Constitution would then become the legally adopted Constitution of the State and be binding as such upon all of the people thereof " II. As to whether it is legally competent for the General Assembly to submit to the qualified electors the question whether said electors will call a convention to frame a new Constitution, and to provide by law if a majority of the electors voting upon said question shall vote in favor of calling such convention, that the same be held, and the new Constitution framed by said convention be submitted to the electors for their adoption, either to the electors qualified by law, or to the persons who maj' be qualified to vote under such new Constitution, and whether if a majority of the electors, or persons voting thereon, vote for the adoption of such Constitution, whether the Constitution so to be framed and adopted would be the legal Constitution of the State, and as such be binding upon all the people thereof. ' ' And whereas, the existing Constitution provides that either House of the General Assembly maj- require the opinion of the judges of the Supreme Court upon any question of law, it is therefore hereby " Resolved, that the said judges of the said Supreme Court be, and they hereby are requested without unnecessary delay to give their opinion to the Senate upon the two questions stated in the preamble hereto, upon which diflTerences of opinion have arisen between the members of this General Assembly. " Resolved, that his Excellency the Governor be, and he hereby is, requested to forward copies of the preceding preamble and resolution to each of the judges of the said Supreme Court." Opinion of the Court.' March 30, 1883. To the Honorable the Senate, of the State of Rhode Island and Providence Plantations : We received from your Honors on the 24th inst. a resolution request- ing our opinion in regard to the legal competency of the General Assembly to call a convention for the revision of the Constitution. In reply we have to say that we are of opinion that the mode provided in the Constitution for the amendment thereof is the only mode in which it can be constitutionally amended. The ordinary' rule is that where power is given to do a thing in a particular way, there the affli-mative words, marking out the particular way, prohibit all other ways by im- plication, so that the particular way is the only way in which the power can be legally executed. The rule was recently recognized by the Supreme Court of the United States in Smith v. Stevens, 10 Wall. 321. There by Act of Congress, lands were ceded to Indians with power 1 See Taiilorv. Place, ante, 180 n. — Ed. CHAP. II.] IN EE THE CONSTITUTIONAL CONVENTION. 225 to sell them, or parts of them, in a particular manner, and the court held that a sale in any other manner was void. The rule was likewise recently recognized by the English Court of Exchequer in a case in which it was thus expressed : " If authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the Act authorized under other circum- stances than those so defined : ' Expressio u?iias est exclusio alterius.' " North Stafford Steel, &c. Co. v. Ward, L. R. 3 Exch. 172, 177. Cases to the same point might be indefinitely multiplied. 1 Kent Comment. *467, note d; 1 Sugden on Powers, 258 et seq. ; City of New Haven v. Whitney, 36 Conn. 373 ; District Township of the City of Dubuque v. The City of Dubuque, 7 Iowa, 262. It has been claimed, indeed, that the rule, though applicable in the interpretation of statutes, dpeds, wills, and other ordinary instruments, is inappli- cable in the fcterpretation of a State constitution. Tliose who assert this difference, however, do not appear to have any reason to give for it but this, namely : that under stress of strong political excitement, the rule, if it exists, is pretty sure to be disregarded, as past experi- ence proves, and therefore it is better to conclude that it does not exist. We do not consider the reason satisfactory. The rule is simply a guide to the meaning of language wlien used in a particular waj', and we do not see why it is not as trustworthy a guide to the meaning when the language so used occurs in a State Constitution, as when it occurs in a statute or a will. Men do not put awaj' their spontaneous and habitual modes of expressing themselves merely because they are en- gaged in the unaccustomed work of framing or adopting a constitution. In this view we are not without precedent. One of the greatest of modern jurists. Chief Justice Shaw, was of the same way of thinking, and con- jointly with his associates, declared it to be his opinion that the Con- stitution of Massacliusetts is constitutionally amendable only as therein provided. Opinion of the Justices, 6 Cush. 573. The provision for amendment in our Constitution is singularly explicit. The proposed amendment is first to pass the two Houses of the General Assembly by a majority of the members elected ; it is then to be published, with the vote thereon, in the newspapers, and otherwise brought to the attention of the people ; it is then to pass the Assembly elected after such publication by a majority of both Houses ; and finally it is to be submitted to the approval of the electors, and if it be approved bj' three fifths of the electors voting, and not otherwise, it is to become incorporated in the Constitution. Evidently the purpose was to insure the calm and considerate action of both the Assembly and the people. It was to pass two Assemblies, so that the members of the second, elected after publication, might, if the electors thought proper, be elected specially to consider it. The popular mind was not to be taken by surprise or to be carried away by any sudden sentiment, but it was to act deliberately after reflection. To this end a three fifths vote was required for approval. The object was not to hamper or baffie the VOL. I. — 15 226 IN KE THE CONSTITUTIONAL CONVENTION. [CHAP. 11. popular will, but to insure its full expression. Our ancestors knew, what we all know, that in spite of all precautions a majority may be worked up for an occasion, which is not the true and permanent majority., They also knew, what we all know, that many electors, perfectly satis- fled with the existing state of things, stay away from the polls on election day from mere inertness of temperament. It is. inconceivable to us, that they would have elaborated so guarded a mode of amendment, unless they had intended to have it exclusive and controlling. They doubtless did so intend, and if they did, we cannot say tliey did not, simply because since then the eonstitutioes of other States, having similar provisions, have been amended through the medium of conven- tions. The framers of our Constitution could not foreknow this action in other States, and therefore cannot have been influenced by it. If our Constitution had no provision for amendment, tlien, indeed, a power in the Assembly to call a convention or to initiate amendments iu some oilier manner might be implied ex necessitate. The Assembly, under the charter, exereised such a power because the charter had no such provision ; though it is proper to remark that under the charter the legislati\e power of the Assembly was practically unlimited. Again, if the provision for amendment was impracticable, there might be, if no legal reason, yet some excuse for disregarding it. But it is prac- ticable, as a successful resort to it in several instances has demon- strated. Tlie only things whicii can be said against it are that it is dilatory, and that it requires the assent of more than a bare majorit3". But these are the very things which recommended it to its authors, and therefore they cannot be alleged as reasons for believing that they did not mean it to l)e exclusive and controlling. Our Constitution is, by its own express declaration, the supreme law of the State ; m\y law inconsistent with it is void, and, therefore, if the provision which it contains for its own amendment is exclusive, imply- ing a prohibition of amendments in any other manner, then, of com'se, any Act of the Assembly providing for a convention to amend the Con- stitution is unconstitutional and void. An argument in fa;or of a convention has been suggested which is not speciflcaliy met in the preceding. It is this, namelj- : that though the General Assembly has no power to introduce amendments and carry them to their consummation in any manner not provided in the Consti- tution, it nevertheless has power to call a convention to frame a new constitution for submission to the people. The argument is, in our opinion, rather specious than sound. The convention, if called, would be confined by the Constitution of the United States to the formation of a constitution for a republican form of government, and our present Constitution contains the fundamental provisions, the great ground plan, of such a foi'm of government as it is known throughout the Union, Anj- changes wliich are in contemplation are merely changes of super- structure or detail. Our Coustitution, too, contains in its Bill of Rights the great historic safeguards of liberty and property, which certainly CHAP. II.] IN KE THK CONSTITUTIONAL- CONVENTION. 227 no convention would venture either materially to alter or to abolish. Any new constitution, therefore, which a convention would form, would be a new constitution only in name ; but would be in fact our present Constitution amended. It is impossible for us to imagine an}' altera- tion, consistent with a republican form of government, which canuot be effected by specific amendment as provided in the Constitution. Again, it has been maintained that the General Assembly has power to call a convention under section 10, of article 4, which provides that " the General Assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this Constitution." But, under this section, the General Assembly can only exercise powers which are not prohibited ; and, if the provision for amendment is, as we think it is, exclusive, then a power to call a convention is prohibited by implication, and, as was clearly shown in Taylor v. Place, 4 R. I. 324, an implied is as effectual as an express prohibition. Finally', it has been contended that there is a great unwritten common law of the States, which existed before the Constitution, and which the Constitution was powerless to modify- or abolish, under which the people have the right, whenever invited b^- the General Assemblj-, and as some maintain, without any invitation, to alter and amend their constitutions. If there be any such law, for there is no record of it, or of any legisla- tion or custom in this State recognizing it, then it is, in our opinion, rather a law, if law it can be called, of revolutionary than of consti- tutional change. Our Constitution is, as already- stated, by its own terms, " the supreme law of the State." We know of no law, except the Constitution and laws of the United States, which is paramount to it. We think the foregoing is in effect, if not in form, an answer to the questions propounded to us in the resolutions. The questions are ex- tremelj' important, and we should have been glad of an opportunitj* to give them a more careful study, but under the request of the Senate for our opinion, " without anj- unnecessary delay," we have thought it to be our duty to return our opinion as soon as we could, without neglect- ing other duties, prepare it. Thomas Durfee, Charles Matteson, John H. Stiness, P. E. TlI-LINGHAST, G. M. Carpenter, Jdn.* ' For the practice in different States, see a valuable pamphlet, called out by this opinion, entitled " The metlioda of changing the Constitutions of the States, especially that of Rhode Island" (Boston: Alfred Mudge & Son, Printers, 1885), written by Hon. Charles S. Bradley, formerly Chief Justice of Rhode Island. See also the comments of Judge Jameson on this opinion in Const. Conventims (4th ed.), ss. 573, 574, etseg. — Ed. 228 WELLS V. BAIN. [CHAP. n. WELLS V. BAIN. SupUEME Court op Pennsylvania. 1874. [75 Pa. St. 39.] 1 Decembek 2d, 1873. At Nisi Prius, before Gordon, J., with Agnew, C. .J., Sharswood, Williams, and Merour, JJ., as assessors. The matter considered arose upon two bills in equit}' in the Supreme Court, No. 13 and No. 14, to Januaiy Term, 1874. No. 13 was a bill filed by Francis Wetls and others, citizens and voters of Philadelphia, against James Bain and others, commissioners of the city of Philadelphia, and Edwin H. Fitler and others, commis- sioners of election under an ordinance of the convention to revise and amend the Constitution of Pennsj-lvania. No. 14 was a bill filed b\- John H. Donnellj', an inspector of elec- tions of the Fifth Ward of Philadelphia, against Edwin H. Fitler and others, commissioners of elections, &c., as above stated. An Act of the Legislature of June 2, 1871, submitted to the people the question of "calling a convention to amend the Constitution of Pennsjlvania." In pursuance of the popular vote in the aflSrmative, an Act of April 11, 1872, provided for the election of delegates to such a convention, fixing the number of members, the manner of voting, and otiier details. The convention was to meet on the second Tuesdaj* of November, 1872, and was to " have power to propose to the citizens of this Commonwealth, for their approval or rejection, a new constitution or amendments to the present one, or specific amendments to be voted for separately." It was provided that "the election to decide for or against the adoption of the new constitution or specific amendments shall be conducted as the general elections of this Commonwealth are now In- law conducted." The Constitutional Convention prepared a new constitution, and passed an " ordinance" for submitting it to the people which departed from the provisions of the statute of April 11th ; it named, for exam- ple, five persons (not the regular oflficials) who should act as commis- sioners of election in Philadelphia. fiill No. 13, above mentioned, averred that the commissioners named in this ordinance were proposing to hold an election in Philadelphia on the sixteenth of December, 1873, under the authoritj- of the ordinance, and contrary to certain provisions of the statute of April 1 1th, and that Bain and other citj- commissioners of Philadelphia were proposing to expend the money of the city for the purposes of such election ; and it prayed for an injunction restraining the said persons from holding the election and paying out the money. Bill No. 14 averred that the plaintiff was a dul}' appointed inspector of elections in the Fifth Ward of Philadelphia, and, after setting forth 1 The statement of facts is condensed. — Ed. CHAP. II.] WELLS V. BAIN. 229 the same state of facts contained in tlie other bill, it alleged that the defendants, the coinmissioners under the ordinance of the convention, designed to prevent him and the other election oflBcers of Philadelphia from performing their duties, and prayed for an injunction to restrain the defendants from interfering with the plaintiff in the exercise of their office.* The cases were argued by R. S. Ashurst, J'. E. Gowen, and B. II. Brewster, for the plaintiffs, and by G. M. Buckalew, W. H. Armstrong ., and G. TV. Biddle, for the defendants. The opinion of the court was delivered, December 6th, 1873, bj' Agnew, C.J. Since the Declaration of Independence in 1776, it has been an axiom of the American people that all just government is founded in the consent of the people. This is recognized in the second section of the Declaration of Rights of the Constitution of Pennsylvania, which affirms that the people "have at all times an inalienable and in- defeasible right to alter, reform, or abolish their government in such manner as they may think proper." A self-evident corollary is, that an existing lawful government of the people cannot be altered or abolished unless b^' the consent of the same people, and this consent must be legallj- gathered or obtained. The people here meant are the whole, — those who constitute the entire State, male and female citizens, infants and adults. A mere majority of those persons who are qualified as electors are not the people, though when authorized to do so, they maj' represent the whole people. The words " in such manner as they may think proper," in the Decla- ration of Rights, embrace but three known recognized modes by which the whole people, the State, can give their consent to an alteration of an existing lawful frame of government, viz. : — 1. The mode provided in the existing constitution. 2. A law, as the instrumental process of raising the body for revision and conveying to it the powers of the people. 3. A revolution. The first two are peaceful means through which the consent of the people to alteration is obtained, and by which the existing government consents to be displaced without revolution. The government gives its consent, either by pursuing the mode provided in the Constitution, or by passing a law to call a convention. If consent be not so given by the existing government the remedy of the people is in the third mode, — revolution. When a law becomes the instrumental process of amendment, it is not because the legislature possesses any inherent power to change the existing constitution through a convention, but because it is the only means through which an authorized consent of the whole people, the entire State, can be lawfully obtained in a state of peace. Irregular action, ' The report does not state in what manner the pleadings were concluded, or how the case was shaped. — Ed. 230 WELLS V. BAIN. [CHAP. H. whereby a certain number of the people assume to act for the whole, is evidently revolutionarj'. The people, that entire body called the State, can be bound as a whole only by an act of authority proceeding from themselves. In a state of peaceful government they have con- ferred this authorit3' upon a part to speak for the whole onlj- at an elec- tion authorized by law. It is only when an election is authorized by , law, the electors, who represent the State or whole people, are bound ^ to attend, and if they do not, can be bound by the expression of the will of those who do attend. The electors who can pronounce the voice of the people are those alone who ypssess the qualifications sanc- tioned by the people in order to represent them, otherwise they speak for themselves only, and do not represent the people. The people, having reserved the right to alter or abolish their form of government, have, in the same declaration of tlieir rights, reserved the means of procuring a law as the instrumental process of so doing. The twentieth section is as follows : — " The citizens have a right, in a peaceable manner, to assemble to- gether for their common good, and to applj- to those invested with the powers of government for redress of grievances or other proper pur- poses, by petition, address, or remonstrance." If the legislature, possessing these powers of government, be un- willing to pass a law to take the sense of the people, or to delegate to a convention all the powers the people desire to confer upon their dele- gates, the remedy is still in their own hands ; they can elect new repre- sentatives that will. If their representatives are still unfaithful, or the government becomes tjrannical, the right of revolution yet remains. To what extent the Constitution of the United States controls this it is unnecessary now to inquire. It is not pretended that the late convention sat as a revolutionary body, or in defiance of the existing government, and it did not proceed in the mode provided for amendment in the Constitution, that being a legislative proceeding onl}-. It was, therefore, the ofiPspring of law. It had no other source of existence. The process was an application or petition to the legislature to call a convention ; the passage of a law to gather the sense of the people on the question whether a convention should be called ; an election authorized by this law to take the sense of the whole people on this question, and, finallj-, the passage of a law to call the convention and define its powers and duties. A law is the onlj- form in which the legislature, the body invested with the powers of government, can act, and thereby its own consent be given and revo- lution avoided. The people having adopted a proceeding by law as the means of executing their will, having acted under it and chosen their delegates by virtue of its authority, submitted themselves to it, as their own selected and approved means of carrying out peacefully their purpose of amendment. The law, being thus the instrument of their own choice to express their will, necessarily became the channel of their authority. Having furnished no other means of arriving at their CHAP. II.] WELLS v. BAIK. 231 will, it is the onl}- channel through which it has been convej-ed. The law, therefore, being the instrument of delegation, this warrant to the delegates from the people becomes the only chart of their powers. The will of the people has been expressed in no other form, and the powers of the delegates, therefore, come in no other wise. It will not do to assert tliat the whole original power of the people was conferred by the election. This election itself was a part of the instrumental process of the law, the means provided bj- this very law, of selecting the delegates. The law was the warrant for their election, and expressed the very terms chosen and adopted by the people, under which the^- delegated their power to these agents. The delegates pos- sess no inlierent power, and when convened by the law at the time and place fixed in it, sit and act under it, as their letter of attorney from the people themselves, and can know and discover the will of the people onl^' so far as they can discern it through tliis the onlj- warrant the3- have ever received to act for the people. If the3- claim through any other source, they must be able to point to it. Outside of the law to take the sense of the people whether a conven- tion should be called, and the law to call the convention, no other source has been or can be shown. To make this more distinct, let us suppose a voluntarj' election unauthorized by law, and delegates elected. It is plain a convention composed of such delegates would possess no power to displace the existing government, and impose a new constitu- tion on the whole people. Those voting at the unauthorized election had no power to represent or to bind those who did not choose to vote. A majority- of the adult males having the qualifications of electors can bind the wliole people onl^- when thej' have authorit}' to do so. To make this still more plain. Suppose a constitution formed b}' a volunteer convention, assuming to represent the people, and an attempt to set it up and displace the existing lawful government. It is clear that neither the people as a whole nor the government having given their assent in any binding form, the executive, judiciary, and all offi- cers sworn to support the existing constitution would be bound, in maintenance of the lawfully-existing institutions of the people, to resist the usurpation, even to the whole extent of the force of the State. If overpowered, the new government would be established, not by peace- ful means, but bj' actual revolution. It follows, therefore, that in a state of peace a law is the only means by which the will of the whole people can be collected in an authorized form, and the powers of the people can be delegated to the agents who compose the convention. The form of the law is immaterial in this question of derivative authoritj'. It may be a law to confer general authoritj' or one to confer special authority. It may be an invitation in the first place, as was the Act of 1789, under which the convention of 1790 was convened, and an authority to the people to meet in pri- mary assemblies to select delegates and confer on them unrestricted powers ; or it ma3' be a law to take the sense of the people on the 232 WELLS V. BAIN. [OHAP. 11. question of calling a convention, and, then a law to make the call and confer the powers the people intend to confer upon their agents. The power to pass the law carries with it of necessity that to frame and de- clare the terms of the law. The terms of delegation, which the people themselves declare, when acting under and by virtue of the law which they have called to their aid, as the instrumental process of conferring their authorities and reaching their purpose of amendment, become of necessity the terms of their own will. All outside of this channel is revolutionary, for it has neither the consent of the government nor of the people who have called the government to their aid and acted through it. The process of amendment being through the instrumen- talit}' of legislation, these laws must be enacted in the forms of the Constitution and be interpreted by the rules which govern in the inter, pretation of laws. The next inquir}- is. What powers of the people were conferred upon the late convention? A change in the fundamental relations of the people and of that sacred compact which the^' have instituted to guard and protect their own rights and interests is one of vast, indeed most solemn import ; for to impose a new constitution without authority, or to usurp powers not delegated, may lead to bloodshed and ruin. The power to act, then, should be clearly conferred. The sacred fire from the altar of the people's authoritj- cannot be snatched bj- unhallowed hands. The present inquiry is not how much power maj- be conferred bj- law, but what power was conferred on this convention? A law must be passed according to the forms of the Constitution. One of these is that no bill shall contain " more than one subject, which shall be clearlj- ex- pressed in the title.'' The title of the Act of June 2d, 1871, is " An Act to authorize a Popular Vote upon the Question of calling a Conven- tion to amend the Constitution of Pennsj'lvania." The text of the Act is : " That the question of calling a convention to amend the Constitu- tion of this Commonwealth be submitted to a vote of the people at the general election, to be held," &c. The one subject of both title and text is the question of calling a convention. That question was author- ized to be submitted to a popular vote. In that election each elector expressed his individual opinion on that question, and that alone, by voting " for a convention" or " against a convention." This question was answered in the affirmative by a majoritj' of votes, and the people, answering the legislature, said: "You maj- call a convention." This was all the vote expressed. Each vote expressing the opinion of the elector on that question, the majority expressed no more, for the major- ity was composed of the sum total of the votes on that side. Thus an analysis of the Act, both in its title and its text, demonstrates that the vote was not a delegation of power, except to the legislature. There is no principle of sound interpretation which can extend the voice of the elector or the sum total of those voices, beyond the question each was called to answer. The result of that vote, therefore, was that the CHAP. II.] WELLS V. BAIN. 233 legislature might call a convention. It was not in itself a call, nor did it declare when, how, or on what terms the call should be made. That, the very answer to the question proposed to the electors, necessarily left to those who asked their judgment on the propriety of making the call. It was not even a mandate, further than the moral force contained in an expressed desire of the people. It is very evident, had the matter dropped there, and the legislature had made no call, no convention and no terms would ever have existed. Not a line, nor a word, nor a syllable in this Act expresses an intent of the people to make the call themselves, or on what terms it shall be made, or what powers should be conferred. Did the people by this Act, without an expressed intent, and by mere inference, intend to abdicate all their own power, their rights, their interests, and their duty to each other in favor of a body of mere agents, and to confer upon them, by a blank warrant, the abso- lute power to dictate their institutions, and to determine finallj' upon all their most cherished interests? If the argument be admitted for an instant that because nothing was said in this law on the subject of dele- gation, therefore greater powers were conferred than were granted in the subsequent Act of 1872, then all power belonging to the people passed, and they did grant by it the enormous power stated. Then, by a covert intent, hidden in the folds of this Act, the people delegated power to repeal all laws, abolish all institutions, and drive from place the legislature, the Governor, the judges, and every officer of the Common- wealth, without submitting the work of the delegates to the ratification of the people. If by an ordinance under a power derived from this Act of 1871, the delegates can set aside the lawfullj'-existing election laws for Philadelphia, where shall their power end? Can the3' draw money from the treasurj- to pay their own salaries? Can they seize and con- demn a hall for their own use under the power of eminent domain? It is not possible, by any sound rule of interpretation, natural or civil, we can attribute to the Act of 1871 such an enormous, fearful, portentous delegation of power, founded on a vote upon the mere question of call- ing a convention. The result of the vote on this question declared the sense of the greater number of electors that a convention might be called. But how called ? It was not itself a call. It left that to those invested with the powers of government. In and of itself it conferred no authority upon the delegates, but left that to a subsequent Act. The call proceeding from the legislature was necessarilj- by means of a law, for in no other form can the legislative will be expressed. When the people called in legislative aid to procure the call of a convention, they knew, therefore, that a law could be the only instrumental process the legislature could give ; and a law being invoked, they knew that the power to legislate carried with it the power to frame the terms of the law. They knew still more, when they accepted the law as the means of making the call, that they adopted its terms b}' acting under it. When, therefore, they, in 1872, elected delegates under the Act of 234 WELLS V. BAIN. [chap. IL 1872, thej"- elected them under the. terms and provisions of that law, and none other, for there was no other law under which an authorized and binding election was or could be had. The people themselves, therefore, ratified and adopted the terms of the Act of 1872, as the terms on which they delegated their powers to those elected under it. The delegates so elected are clearly estopped, by the record itself, from denying the terms under which they hold their seats, for they hold them under the Act of 1872, and no other. The entire process of raising \ convention and conferring upon it the powers of the people was a mat- ter of law, iu a state of peace, under ihe. forms of the Constitution, through which the consent both of the people and of the existing gov- ernment was given to prevent the convention from being or becoming a revolutionary body. Accordingly, the Act of April 11th, 1872, is entitled "An Act to provide for calling a Convention to amend the Constitution." The text of the Act is, " that at the general election to be held, &c., there shall be elected by the qualified voters of the Commonwealth, delegates to a convention to revise and amend the Constitution of the State," &c. The Act then provides for the election, the assembling of tlie delegates, their powers and duties, and the submission of the Constitution or amendments agreed upon to a vote of the people for adoption or rejec- tion. When the people voted under this law, did they not vote for delegates upon the express terms that thej- should submit their work to the people for approval? Did not ever^' man who went to the polls do so with the belief in his heart that, by the express condition on which his vote was given, the delegates could not bind him without his subse- quent assent to what the delegates had done? On what principle of interpretation of human action can the servant now set himself up against the condition of his master and saj' tlie condition is void ? Who made it void ? Not the electors ; they voted upon it. The people re- quired the law, as the act of the existing government, to which they had appealed under the Bill of Rights, to furnish them legal process to raise a convention for revision of their fundamental compact, and with- out which legal process the act of no one man could bind another. This law, being unrepealed, and being acted upon by the people, became their own delegation of authoritj', — the chart of the delegates to guide and control them in the duties they were elected to perform as the ser- vants of the people. Without this legislation the convention had not existed ; and to exist on terms not found in or contrarj' to the law, is to seek for a grant of powers to be found nowhere else, except in a state of revolution, and therefore do not exist in this peaceful process of amendment. The absolute necessity of the convention to claim the protection of the Act of 1872 is seen in another view. Of the one hundred and thirtj'-three members of this body, less than one hundred in number were elected b^' the people. Some never received a single vote, but eat by the appointment of men themselves not elected bj- the people at 8HAP. II.] WELLS V. BAIN. 235 large. It is not meant to discuss the wisdom or the merits of the so- called limited sj-stem of voting, by which a majority of the electors are prevented from voting against persons seeking to represent them ; but the purpose now is to show that without the authority of this very Act of 1872, more than thirty-three members of the body had no warrant whatever to represent the people. On what principle of right, domin- ion, or power, had these persons anj' claim to exercise the power of the people, and hy their votes, perhaps, to fix upon a people the3' do not represent the most odious features of a proposed constitution ? Is it not clear that their whole delegated power to speak and to vote for the people comes from the force and effort of the statute? They have that, and none other. In considering this question of delegated power some are apt to for- get that the people are already under a constitution and an existing frame of government instituted by themselves, which stand as barriers to the exercise of the original powers of the people, unless in an author- ized form. They glide insensibly into the domain of abstract rights, and clothe mere agents with primordial power. But delegated author- ity is derived, and those who claim it must show whence and how they derived it. Three and a half or four millions of people cannot assem- ble themselves together in their primary capacity, — thej' can act only through constituted agencies. No one is entitled to represent them unless he can show their warrant, how and when he was constituted their agent. The great error of the argument of those who claim to be the people or the delegates of the people, is in the use of the word " people." Who are the people? Not so man}' as choose to assemble in a county, or a cit3', or a district, of their own mere will, and to saj', We, the people. Who gave them power to represent all others who stay awaj- ? Not even the press, that wide-spread and most powerful of all subordinate agen- cies, can speak for them by autliority. The voice of the people can be heard only through an authorized form, for, as we have seen, without this authority a part cannot speak for the whole, and this brings us back to a law as the only authority l)y which the will of the whole people — the body politic called the State — can be collected under an existing lawful government. To wander outside of this channel is to run in search of original powers, which, though possessed by the people, thej' have con- ferred in no other form. If the power be delegated, it must be seen in the derivation, otherwise it does not exist. If, then, the delegates elected by the people themselves, under the Act of 1872, have greater powers than are contained in it, when, where, and how did thej' obtain them? It is not in the Act of 1871, for that, as we have shown, decided but one question and conferred but one power, to wit, that a convention might be called, and that the legislature might call it. There is no other source to which this convention can appeal, and not being found there it is found nowhere. This brings us to an examination of the powers conferred by the Act of 1872, as the dernier resort. The power claimed for the convention 236 WELLS V. BAIN. [CHAP. IL is, by ordinance, to raise a commission to direct the election upon tlie amended constitution in the city of Philadelphia, and to confer power on this commission to make a registration of voters, and furnish the lists so made to the election oiSeers of each precinct ; to appoint a judge and two inspectors for each division, by whom the election therein shall be conducted. This ordinance further claims the power to regulate the qualifications of the oflcers thus appointed to hold the election and to control the general returns of the election. It is clear, therefore, that the ordinance assumes a present power to displace the election officers now in office under the «lection laws for the cit^-, to substitute officers appointed under the authority of the convention, and to set aside these election laws so far as relates to the qualification of the officers and the manner in which the general returns shall be made, and in other respects not necessar3' to be noticed. The authority to do this is claimed under the fifth section of the Act of 1872. . . . Now we come to the sixth section, which begins a different subject. " The election to decide for or against the adoption of the new Consti- tution, or specific amendments, shall be conducted as the general elec- tions of this Commonwealth are now b^- law conducted." Thus the legislature said to the convention in these three sections — You shall have power to propose your work iu three forms ; j'ou shall have power to determine the time and the manner in which these propositions shall be submitted ; but the election b}' the citizens shall be conducted as the law itself directs as to general elections. The sixth section, as to how the election on the propositions submitted shall be conducted, is man- datory, and is so for the best of reasons, — it is the only legally author- ized means of taking the sense of the people upon adoption of the amendments which can bind the whole people. In this way only can a majority of voters, who are not a majoritj- of the people, bind them as the body politic or State. The legislature intended that the election should be conducted by known officers legally elected, and should be governed bj' a known system of laws with which the people are famiUar, and thereb3' that they should both know and respect the authority under which the election should be held. No implication can be drawn from the word " manner" to contradict the plain and positive enact- ment that the election shall be conducted according to the laws govern- ing general elections. It would violate the plainest rules for the interpretation of statutes to make the merest inference stand higher than an intent expressed in distinct language. It is, therefore, clear to our minds that the ordinance relating to the election in the city of Philadelphia is flatl}- opposed to the Act of 1872, and is therefore illegal and void. The prospective validation in the 32d section of the schedule only betrays the doubt the convention itself had of the validity of the ordinance in this respect. The next question is one of great importance, but stands on a very different footing from that upon the ordinance, — I mean the alleged refusal of the convention to submit the judiciar3- article separately to a CHAP. II.] WELLS V. BAIN. 237 vote of the people. The convention was clothed with express power to act upon the question of submitting the amendments in whole or in part. It is a deliberative bod3', having all the necessary authority to make rules for its own procedure, and to decide upon all questions falling within the scope of its authority. The power over the manner of sub- mitting auiendments is expressl3' conferred in the fifth section. It is true the law gives to one third of all the members a right to require a separate submission of any amendment. But while this right is awarded to a minority of the body, it is one upon which the convention itself must act, and it must act according to its own rules of procedure. The question of a separate submission being one committed to the whole body, of which the requiring third is itself a part, it must be presumed that the decision of the bod^^ as a whole was rightly made, and either that the request was not made by a full one third of all the members, or, if made b}' one third, it was not in a regular or orderlj' wa3^ It would be a violent presumption to suppose that the bod_y would wilfully disregard their own oaths as well as a full and orderly request. And if the}' did this wrong, no appeal is given to the judiciary, and the error can be corrected only by the people tliemselves, by rejecting tlie work of the convention. If the people, notwithstanding, choose to ratify tlieir work, with them lies the consequence. Mere errors of procedure will then be of no avail. The convention having in that matter acted within the scope of its undoubted power, we must take its decisions as final, and leave correction to the power to which it belongs. Not to omit to notice the arguments drawn from precedents, we think none referred to throw much light on the general question in these cases, — tills power of the convention to pass the ordinance setting aside the election laws governing the citj' of Philadelphia and substi- tuting provisions of its own. Even the proceedings in 1789 in our own State furnish a precedent of but little service. There the legislature not only invited the action of the people in primary assemblies, but in advance committed to their hands all the authority legislation can confer to act in those assemblies. The convention was summoned without re- striction, and acted without trammel, while the people reserved no power of ratification, and subsequently disposed of all questions of power by living under and acting upon the Constitution, thereby ratif}'- ing tiie work of the convention in the most eflflcacious manner. The question before us is, can the convention, before they either proclaim a constitution themselves, if they have the power, or before any ratifica- tion, if they have not, pass an ordinance to repeal an existing system of law on a particular subject? This is a question of power, not of wisdom. However wise the substitution of their own election ma- chinery for that provided by law for this city may be, the question is not for us. We can decide only the question of power. At last, there- fore, we must come to the decision on principle, and in the light of reason, having a due regard to the rights, interests, welfare, and peace of a people living under a recognized government of their own choice, 238 WELLS V. BAIN. [CHAP, IL and seeking to amend it in a peaceful wa}-, and to such extent as they may deem salutary and wise. The question of jurisdiction has been reserved for the conclusion. The first reinai'k to be made is, that all the departments of government are j'et in full life and vigor, not being displaced b^' an^- authorized act of the people. As a court we are still bound to administer justice as heretofore. If the acts complained of in these bills are invasions of rights without authority, we must exercise our lawful jurisdiction to re- strain tliem. One of our equity powers is the prevention or restraint of the commission or continuance of aotS contrary to law, and preju- dicial to the interests of the community or the rights of individuals. Page v. Allen, 8 P. F. Smith, 338, and the authorities cited by counsel, are precedents sufficient to justify tbe exercise in this case. Here the court is asked to restrain a body of men attempting j;o proceed contrary to law, — to set aside tiie lawful election system of the citj-, and sul)stitute an unlawful system in its place. Their acts are not onlj' contrary- to law, but are prejudicial to the interests of tlie community, by endanger- ing the rights of all the electors, through means of an illegal election held by unauthorized officers. In Patterson v. Jiurlow, 10 P. F. Smith, 64, the aid of the court was asked, not to prevent acts contrary to law, but to strike down the only lawful system of election in the city, and thereby to disfranchise all its citizens, for all other election laws had been actually repealed. We said then it was more than doubtful how far private citizens can call for an injunction bej'ond their own invaded rights, or ask to restrain a great S3'stem of law in its public aspects. In this case we are called upon, not to strike down, but to protect a lawful system, and to prevent intrusion b}' unlawful authority. If this ordinance is invalid, as we have seen it is as to the city elections, the taxes of the citizens will be diverted to unlawful uses, the electors will be endangered in the exercise of their lawful franchise, and an officer necessary to the lawful execution of the election law ousted bj- unlawful usurpation of his functions. The convention is not a co-ordinate branch of the government. It exercises no governmental power, but is a bod3' raised b3' law, in aid of the popular desire to discuss and propose amendments, which have no governing force so long as thej' remain propositions. While it acts within tiie scope of its delegated powers, it is not amenable for its acts, but when it assumes to legislate, to repeal and displace existing institutions before the\' are displaced by the adoption of its propositions, it acts without authority, and the citizens injured therebj' are entitled, under the Declaration of Rights, to an open court and to redress at onr hands. In conclusion, we regret that the nature of the case requires prompt, instant action, and that the circumstances under which we act demand a written expression of our views. We gladly would have had more time for discussion among ourselves, and for the preparation of the opinion. As it is, we have given to the subject all our most anxious thoughts and CHAP. II.] WOODS'S APPEAL. 239 labor, and have arrived at the best couclusions bonest convictions can reach. [Injunctions were issued Dec. 5, 1873.] * WOODS'S APPEAL. SUPKEMB COUET OF PENNSYLVANIA. 1874. [75 Pa. St. 59.] 2 October 9th, 1874. (At Pittsburg.) Before Agnew, C. J., Shaes- virooD, Williams, Meecue, and Goedon, JJ. Appeal from the Court of Common Pleas of Allegheny County: In Equity: No. 37, to Oc- tober and November Term, 1874. On the 2d of December, 1873, Robert Woods and Reese Owens filed a bill against Matthew S. Quay, Secretary of the Commonwealth of Penns^'lvania, John H. Hare, sheriff of Allegheny- Count}', James G. Murray, and others, commissioners of Allegheny Countj'. r The bill set forth that tlie plaintiffs were citizens and tax-payers of Allegheny County, and of the Commonwealth of Pennsylvania ; it also set forth the Act of June 2d, 1871, and other matters relating to the convention, which are found in the case of Wells v. Bain. The bill charged that M. S. Quay, Secretary of the Commonwealth, declared that he would comply with the provisions of the aforemen- tioned "ordinance" of the convention, imposing duties upon him in relation to the submission of the amended Constitution to a popular vote ; that John H. Hare, sheriff of the county of Allegheny, has published in sundi\' newspapers his proclamation for holding an election on the 16th of December next to pass upon the amendments, and that James G. Murraj' and others, commissioners of Allegheny County, had declared that thej' would perform the duties imposed on them by the aforesaid ordinance, .&c. The praj-er was for an injunction to restrain the de- fendants from acting in the premises as above set forth ; that the Acts of June 2d, 1871, and April 11th, 1872, be declared unconstitutional and void ; that the convention convened under the Act of 1872 was an illegal body and its acts without authority of law ; that the " ordinance " of the convention was unconstitutional and void. . . . The defendants demurred to the bill, and the case was heard on bill and demurrer. The court (Stowe, J.) dismissed the bill in the following opinion : — ... I have no difficulty in concluding that if the Acts of Assembly in question are unconstitutional and void, the convention was an illegal 1 See comments on this case and some additional facts in Jameson, Const. Conv. (4th ed.) ss. 409 a-410, and ss. 520 a, 520 6. — Ed. 2 The statement of facts is condensed. — Ed. a 240 WOODS'S APPEAL. [cHAP. II. body, and its acts revolutionary, and that iu suuii case it would be the duty of courts to exercise all their authority to prevent its mandates being carried into effect to the injury of any individual ; that the legis- lature would be bound to enact such laws as might be necessary to punish any attempt to force upon the people its revolutionary woik, and the executive officers of the State to use all their power, civil and mili- tarj-, to suppress it. If, however, in the face of all this, such force, moral or physical, was brought to bear as to overawe or compel the submission of the legal authorities of the State, then, indeed, the a*m of the law would be para- l3'zed, and tlie proposed constitution would become eflfeclive, not by the law, but by that higher right of revolution which is above all law, but is nowhere recognized bj' it. Courts can know nothing b}- antici- pation. They are bound to determine the law as it is previous to the successful accomplishment of revolution, as though such a fact were impossible ; but when accomplished and duly recognized l:)y the political powers of the government, the courts have no alternative but to accept the fact without question and act accordiugl3\ Wiiile, then, courts must recognize the powers that be, though the product of revolution, they are bound to use all their legitimate author- ity to suppress acts actually' or ostensibly revolutionary, as though they were simpl}' rebellious and could never become legitimate. Coming, then, to the question of the constitutionality of the Act to authorize a popular vote upon the question of calling a convention to amend the Constitution, approved June 2d, 1871, and also the Act passed subsequent to the election, held in pursuance of the same, en- titled " An Act to provide for caUing a Convention to amend the Consti- tution," approved April 11th, 1872, raised by the 2d, 3d, 4th, 5th, 6th, and 7th sections of complainants' bill, it is claimed that they are both unconstitutional and invalid, because: — 1 . There is no power given by the present Constitution to the legis- lature authorizing such a proceeding. 2. There is a different method provided by the Constitution, by which it may be amended, and, therefore, upon well-recognized principles of law, the legal conclusion arises that no other exists. It cannot be claimed that the authority for the legislation and pro- ceedings taken in reference to calling this convention are expressl3' set out in the Constitution, but it is argued that the power arises under the second section of the Declaration of Eights, which declares that "all power is inherent in the people and all free governments are founded on their authority, and instituted for their peace, safetj-, and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform, or abolish their government in such a manner as the3- may think proper,'' all of which is, inter alia, excepted out of the general powers of government, and is "forever to remain inviolate." It is difficult to see how the withholding of power from the govern- CHAP. II.] WOODS'S APPEAL. 241 ment can, strictly speaking, create a right in the legislature from which it is thus withheld, to exercise that power ; but if it should appear that such power exists above and before the Constitution as a great natural and indefeasible right, and has been so recognized and acted upon fre- quently as a fundamental principle underlying all free government, tliis provision will sufflcientlj' appear to be a solemn declaration of the existence of such a right, and may in ordinary parlance fairly be said, without any great breach of legal accuracy, to confer a power under the Constitution. Before, however, entering into a consideration of this question, it will be necessary to examine whether there is anything in the Constitu- tion, as urged in the second proposition, which directly or by necessary legal implication takes away such a fundamental right as we have sug- gested, in case it existed, where there is no constitutional restriction. It is urged, and with much apparent force, that because the Constitu- tion in the tenth article "of amendments" provides a certain and carefully defined way for amending the fundamental law, the well- recognized legal maxim ordinarily applied to the construction of deeds and written instruments, as well as Acts of legislation, JExpressio uniiis est exdusio ulterius, leads to the fixed legal presumption that no amendment can, under the Constitution, be made to it, except in the way thus especiall3' provided. This rule enunciates one of the first principles to the construction of an}' ordinary instruments between parties: Lord Deijman, C. J., 5 Bing. N. C. 185 ; but great caution is requisite in its application : Price v. I'he Great Western Railway Co., 16 M. & W. 244 ; Broom's Legal Maxims, 595 ; and it has long been settled in commercial transactions that custom and usage are allowed to control or rebut the implication arising under the rule. . . . Mr. Jameson, in his work on Constitutional Conventions, p. 573, saj's, with great force, upon this question: "Viewed upon principle, were there no authoritj' upon the point, it would be doubtful whether, dealing in great questions of politics and government, the same maxim ought to prevail which regulates the construction of contracts between man and man. As a matter of speculation it may be admitted that the rule expresses the weight of probability equally in cases of great and small magnitude. But there is always a doubt ; and between the cases indicated there is the wide difference, that in ordinary contracts it is possible to enforce the construction which the courts shall pronounce the true one, whilst in the case of constitutional provisions regulating great organic movements, to hold such a maxim applicable would be, by pre- senting barriers to the attainment of what the people generally desire, to make that revolutionary which perhaps was not so. Where the in- tention of the framers of a constitution is doubtful, the people assuming power under the broader construction should have the benefit of the doubt ; and that all the more because in opposition to them our courts are comparatively powerless. It is infinitely better where no principle VOL. I. — 16 242 WOODS'S APPEAL. [CHAP. II. is violated, that a constitution should be so construed as to make their action legal rather than illegal." So far as judicial opinion is concerned, it has been said by the Supreme Court of New York that the maxim is to be applied to or- dinarj- contracts rather than constitutional provisions : £arto v. Hirmrod, 4 Selden, 483 ; while the judges of the Supreme Court of Massachusetts have expressed a different opinion (6 Gushing, 573), holding that under the Constitution of Massachusetts, containing a pro- vision substantially like our own, no power existed to amend, except as provided in the Article of Amendment*. As a matter of history, however, a convention was called by the legislature in 1853, twenty years after this opinion was given, to propose a constitution ; and while the question was raised as to the legality of such convention, it was abl^- vindicated by the best lawj'ers in the State, among them Choate, Parker, and Morton, the latter one of the judges of the court at the time the opinion was given ; and a constitution prepared and sub- mitted to the people. Turning now to the history of the government of the various States, for the purpose of discovering what the usage in such cases has been, we find the practice has been so fi'equent and uniform as clearly to indi- cate what the common understanding of the people, lawyers and lay- men, has been in regard to this question. So far as I am able to learn, there had been, in 1865 (throwing out of consideratior) the rebel States during 1861, and afterwards while undergoing reconstruction), twenty-five constitutional conventions called bj- the legislatures of the various States, without any special authori- zation in their constitutions. In Georgia. Januar\' 4th, 1789, May 4th, 1789, and 1838; in South Carolina, 1790; in New Hampshire, 1791; in New York, 1801, 1821, and 1846; in Connecticut, 1818; in Massa- chusetts, 1829, 1853 ; in Rhode Island, 1824, 1834, 1841, and 1842 ; in Virginia, 1829, 1854, and 1864; in North Carolina, 1835; in Pennsyl- vania, 1837 ; in New Jersej-, 1844 ; in Missouri, 1845, 1861, and 1865 ; in Indiana, 1850. Mr. Webster stated in 1848, in his argument before the Supreme Court of the United States, in the case of Luther v. Borden, " that of the old thirteen States, their constitution with but one exception con- tained no provision for their own amendment, yet there is hardly one that has not altered its constitution, and it has been done by conven- tions called by the legislature, as an oi'dinary exercise of power," If this is true, and my own examination, so far as, with the limited time and opportunity since the argument of this case, I have been able to make it, has verified it, as well as shown the continuation of the same practice to the present day, — it would seem as though the question as to whether the calling of a constitutional convention was a legal exercise of power bj' the legislature, should now be considered by all judicial tribunals as settled so flrmlj- as a part of the common law of our gov- ernments, that any attempt to disturb it at this da^- would savor more CHAP. II.] WOODS'S APPEAL. 243 of revolution than legitimacy. He would be bold, indeed, who would HOW assert that all these conventions were usurpations, and that all the constitutions proposed by them and adopted by the peoplfe were revolutionary. The conclusion that I have drawn from all this is, that there is un- derlying our whole system of American government a principle of acknowledged right in the people to change their constitutions, except where especially prohibited in a constitution itself, in all cases and at all times, whether there is a way provided in their constitution or not, by the interposition of the legislature, and the calling of a convention, as was done in the case in hand. The offspring of revolution originally, but restrained and modified by the necessity arising out of the new principle established in this coun- try, by the accomplishment of our national independence, that the peo- ple are the government, and not the king, and the source of all political power, — it has become legitimated, and without mention in our consti- tutions, is as much the law of the land as if specifically set out in them ; and that as a solemn recognition of this, and not as a revolutionary right, the section of the Declaration of Rights in our own, and similar clauses in other State constitutions, were inserted. Tlie somewhat similar expression contained in the Declaration of Independence was clearly revohitiouary and so intended to be ; but that was a paper published to the world to justify our refusal to submit longer to governmental authority, and spoke of tlie rights of the people, as against the oppression of constituted authorities; but in all instru- ments established by the people themselves for their own government, the only rational view is to consider it as above stated, — the introduc- tion of a constitutional and legal revolution, by the consent of the con- stituted authorities of the State. This last is absolutely indispensable, as is now admitted by all. To give the force and effect of the law to the proceeding, it must emanate from the legislative authority, and be the result of its permission or direction. The only way the people can legally act under a constitution such as ours, is through their repre- sentatives, and therefore, no matter how many may favor a convention to change the Constitution, if one should be called, and convene with- out proper authority from the existing government, its action would be clearly illegal, and the result of illegitimate power. It follows, then, that the action of the legislature in authorizing a vote of the people on the question of the amendment of their constitution, and subsequently by another Act authorizing the election of delegates, was a legal exer- cise of legislative power, and constitutional, unless something in the Acts themselves is in conflict with some constitutional provision. . . . The 8th, 9th, and 10th paragraphs of the bill complain of illegal acts done by the convention : first, in refusing a separate submission to a popular vote of the fifth article, relating to the judiciary, the contin- gency having arisen, under which, by an Act of the Legislature, they were bound to do so ; and second, in altering several of the provisions 244 WOODS'S APPEAL. [CHAP. IL of the Bill of Rights contrary to the limitations imposed in the fourth section of the Act of April Hth, 1872 ; and third, in disregarding the Act of Assemblj', under which the convention was called, in regard to submitting the amended Constitution to a vote of the people, and ordaining a different method. These objections are all consistent with the conclusions already arrived at, and if valid would raise further questions under the bill, notwithstanding what has already been said, and should therefore be considered. In examining these questions, the firsthand second may be taken together. Looking upon general principles at the real question involved, which is how far, if at all, a constitutional conventionregularlj- called may legally disregard limitations imposed upon its actions by the legislature, I have no difficulty in arriving at what seems to me to be the correct rule. A convention to amend the Constitution, without there is an express limitation as to the extent of their power, passed upon by the people in determining th^ question of amendment, has inherently, by the very nature of the case under the great principle peculiarly American, and quasi revolutionary in its character heretofore mentioned, absolute power, so far as ma3- be necessary to carr}- out the purpose for which they were called into existence, by the popular will. Unless prohibited or restricted in the manner specified by the people, the convention has a riglit, untrammelled by mere legislative limitations, to propose to the people for tiieir consideration and adoption any plan thej- maj' see fit. In saying this, we are not to be understood as saying that the conven- tion is in any respect the supreme power of the State. We take it to be simply the attorney for the people, with plenary power to do what is required of it, but nothing bej-ond. Subject to the limitation just mentioned, a constitutional convention, in tlie language of Mr. Wilson, in the Federal Convention of 1787, has the power to conclude nothing, but to propose anything. Sueli, too, is the inevitable result of the views already expressed as to the purpose and effect of the second section of the Declaration of Rights. If it be taken as a constitutional recognition of the principle of legal revolution (so to speak), and of a popular power as we believe, the obvious result follows, that when once called into operation by proper authority, it cannot be subverted nor restrained by the legislature. If this is correct, the convention was right in disregarding the limita- tions sought to be imposed upon its power, both as to what it should propose to change in the present Constitution, and how the proposal should be submitted to the people for their adoption or rejection. The third point, raising the question of the right of the convention to provide a way by ordinance, different from and substantially repealing the Act of tlie Legislature, presents a very different question from the one just considered. It is, however, immaterial to the determination of the real issue in this case. Assuming it to be an excess of power, CHAP. II.] WOODS'S APPEAL. 245 the complainants can be in no wise affected by it as tax-pa3'ers. It is en- tirel}- immaterial to them in that respect, whether the ordinance is legal or illegal. Their onl)' interest is that of knowing whether the conven- tion had such a power or not, as a mere abstract question, which gives them no standing in court. So far as this county is concerned, there was no attempt by the convention to change the law made by the legis- lature. The election which will be held within our jurisdiction, and for which the complainants as tax-payers may be called upon to pay, will be held under what the complainants themselves say is the law, unless the submission of the proposed new Constitution is itself, as it stands to-day, illegal and unconstitutional. There are other questions involved in the case, as to the standing and equity of the plaintiffs under this bill, in view of the relief prayed for, but the conclusions already expressed render it unnecessary to examine them. The result is, the demurrer must be sustained and plaintiffs' bill dismissed. The plaintiffs appealed to the Supreme Court, and assigned for error the decree sustaining the demurrer and dismissing the bill. R. Woods, for appellants. R. B. Carnahan, for appellees. The opinion of the court was delivered, November 2d, 1874, by Agnew, C. J. The change made b^' the people in their political in- stitutions, hy the adoption of the proposed Constitution since this decree, forbids an inquir}' into the merits of this case. The question is no longer judicial, but in a(firming the decree we must not seem to sanction an3- doctrine in the opinion, dangerous to the liberties of the people. The claim for absolute sovereignty in the convention, appar- ently sustained in the opinion, is of such magnitude and overwhelming importance to the people themselves, it cannot be passed unnoticed. In defence of their just rights, we are bound to show that it is unsound and dangerous. Their liberties would be suspended by a thread moi'e slender than the hair which held the tyrant's sword over the head of Damocles, if they could not, while yet their existing government remained unchanged, obtain from the courts protection against the usurpation of power bj- their servants in the convention. When they • become complainants, the convention must defend and show their authority. It was contended in the case of Francis Wells et ah v. James Bain et al., involving the legality of an ordinance of the convention, argued at Philadelphia in December last (cintea, p. 39), that the convention had the power to ordain ordinances having the present force of law ; and the instant power to proclaim a constitution, binding without rati- fication, irrespective of the matter adopted b}- the people to exercise their right to alter or amend their frame of government. This imputed sovereignty in a convention called and organized under a law, as the very means adopted by the people to exercise their reserved right of 246 WOODS'S APPEAL. [CHAP. 11. amendment, owing to the briefness of the time, was not discussed in that ease with the fuhiess the importance of the question to the people demanded. There is no subject more momentous or deeplj- interesting to the peo- ple of this State than an assumption of absolute power by their servants. The claim of a body of mere deputies to exercise all their sovereignty, absolutely, insrantl}-, and without ratification, is so full of peril to a free people, living under their own instituted government, and a well-matured Bill of Rights, the bulwark and security of their liberties, that they will pause before they allow the claim and inqi»ire how they delegated this fearful power, and how the^' are thus absolutely bound and can be con- trolled by persons appointed to a special service. Struck by the dan- ger, and prompted by self-interest, the^^ will at once distinguish between their own rights and the powers they commit to others. These rights it is, the judiciary is called in to maintain. The very rights of the people and freedom itself demand, therefore, that no such absolute power shall be imputed to the mere delegates of the people to perform the special service of amendment, unless it is clearlj- expressed, or as clearly implied, in the manner chosen b^' the people to communicate their authority. A convention has no inherent rights ; it exercises powers onlj'. Del- egated power defines itself. To be delegated it must come in some adopted manner to convej- it b^- some defined means. This adopted manner, therefore, becomes the measure of the power conferred. The right of the people is absolute, in the language of the Bill of Eights, " to alter, reform, or abolish their government in such manner as they may think proper." This right being theirs, they maj* impart so much or so little of it as they shall deem expedient. It is only when they exercise, this right, and not before, they determine, by the mode they choose to adopt, the extent of the powers they intend to delegate. Hence the argument which imputes sovereignty to a convention, because of the reservation in the Bill of Rights, is utterly illogical and unsound. The Bill of Rights is a reservation of rights out of the general powers of government to themselves, but is no delegation of power to a conven- tion. It defines no manner or mode in which the people shall proceed to exercise their right, but leaves that to their after choice. Until then it is unknown how the^- will proceed, or what powers they will confer on their delegates. Hence we must look beyond the Bill of Rights to the mode adopted b3- the people, to find the extent of the power they intend to delegate. These modes were stated and discussed in the opinion in Wells et al. v. JBain et al., supra. If, by a mere determination of the people to call a convention, whether it be by a vote or otherwise, the entire sovereignty of the people passes ipso facto into a bodj- of depu- ties or attorneys, so that these deputies can, without ratification, alter a government and abolish its Bill of Rights at pleasure, and impose at will a new government upon the people without restraints upon the governing power, no true liberty remains. Then the servants sit CHAP. II.] WOODS'S APPEAL. 247 above their masters by the merest imputation, and a people's welfare must alwa^-s rest upon the transient circumstances of the hour, which produce the convention and the accidental character of the majoritj'' which controls it. Such a doctrine, however suited to revolutionar}' times, when new governments must be formed, as best the people can, is wholly unfitted when applied to a state of peace and to an existing government, instituted by the people themselves and guarded by a well- inatured Bill of Rights. . . . The people have the same right to limit the powers of their delegates that the3' have to bound the power of their representatives. Each are representatives, but only in a different sphere. It is simply evasive to affirm that the legislature cannot limit the right of the people to alter or reform their government. Certainl3' it cannot. The question is, not upon the power of the legislature to restrain the people, but upon the right of the people, by the instrumentality of the law, to limit their dele- gates. Law is the highest form of a people's will in a state of peace- ful government. When a people act through a law the act is theirs, and the fact that they used the legislature as their instrument to confer their powers makes them the superiors and not the legislature. The idea which lies at the root of the fallacy, that a convention cannot be controlled by law is, that the convention and the people are identical. But when the question to be determined is between the people and the convention, the fallacy is obvious. Such a metonj'my may do for. a flourish of rhetoric, but not for grave argument. The parties to the question are the people on the one hand and the convention on the other. The people allege an usurpation of power in this, that the con- vention seeks to bind them without their ratification. The question then is, what power was conferred ? The judiciary sits to decide between them. The people having challenged their power to set a government over them at will, the agents must show their authorit}^ to do this. The latter put in evidence the Act of 1871 as their autliority. Then the issue is, does the Act of 1871, simply ordering a convention to be called, confer this absolute, extraordinary, and dangerous power upon a body of men not j-et called into being, and which can have neither being nor power except by the further act of the people through the instrumental- ity of a law? To make the law odious, it is assumed that the legis- lature is or may be corrupt. But this is aside from the true question ot power. In a governmental and proper sense, law is the highest act of a people's sovereignty, while their government and constitution remain unchanged. It is the supreme will of the people expressed in the forms and by the authority of their constitution. It is their own ap- pointed mode through which they govern themselves, and by which thej- hind themselves. So long as their frame of government is unchanged in its grant of all legislative power, these laws are supreme over all subjects unforbidden by the instrument itself. The calling of a con- vention, and regulating its action by law, is not forbidden in the Con- stitution. It is a conceded m.inner, through which the people maj' 248 WOODS'S APPEAL. [cHAP. II. exercise the right reserved in the Bill of Eights. It falls, therefore, within the protection of the Bill of Rights as a very manner iu which the people may proceed to amend their constitution, and delegate the only powers the}' intend to confer, and as the means whereby they ma}-, by limitation, defend themselves against those who are called in to exercise their powers. The legislature may not confer powers by law inconsistent with the rights, safety, and liberties of the people, because no consent to do this can be implied, but they may pass limitations in favor of the essential rights of the people. The right of the people to restrain their delegates by law cannot be denied, unless the power to call a convention by law, and the right of self-protection be also denied. It is, therefore, the right of the people and not of the legislature to be put bj- law above the convention, and to require the delegates to sub- mit their work for ratification or disapproval. . . . Decree affirmed} 1 Another American principle growing out of this, and just as important and well settled as is the truth that the people are the source of power, is that, when in the course of events it becomes necessary to ascertain the will of the people on a new exigency, or a new state of things or of opinion, the legislative power provides for that ascertainment by an ordinary act of legislation. Has not that been our whole history? It would take nie from now till the sun shall go down to advert to all the instances of it, and I shall only refer to the most prominent, and especially to the establishment of the Constitution under which you sit. The old Congress, upon the suggestion of the delegates who assembled at Annapolis in May, 1786, recommended to the States tliat they should send delegates to a convention to be holden at Philadelphia to form a constitution. No article of the old Confederation gave them power to do tliis ; but they did it, and the States did appoint delegates, who assembled at Philadelphia and formed the Constitution. It was communicated to the old Congres.i, and that body recommended to the States to make provision for calling the people together to act upon its adoption. Was not that exactly the case of passing a law to ascertain the will of the people in a new exigency? And this method was adopted without opposi- tion, nobody suggesting that there could be any other mode of ascertaining the will of the people. My learned friend went throufrh the constitutions of several of the States. It is enough to say that, of the old thirteen States, the constitutions, with but one excep- tion, contained no provision for their own amendment. In New Hampshire there was a provision for taking the sense of the people once in seven years. Yet there is hardly one that has not altered its Constitution, and it has been done by conventions called by the legislature, as an ordinary exercise of legislative power. Now, what State ever altered its constitution in any other mode? What alteration has ever been brought in, put in, forced in, or got in anyhow, by resolutions of mass meetings, and then by applying force? In what State has an assembly, calling itself the people, con- vened without law, without authority, without qualifications, without certain officers, with no oaths, securities, or sanctions of any kind, met and made a constitution, and called it the Constitution of the State ? There mnst be some authentic mode of ascer- taining the will of the people, else all is anarchy. It resolves itself into the law of the strongest, or, what is the same thing, of the most numerous for the moment, and all constitutions and all ^legislative rights are prostrated and disregarded. But my learned adversary says, that if we maintain that the people (for he speaks in the name and on behalf of the people, to which I do not object) cannot commence changes in their government but by some previous Act of legislation, and if the legis- lature will not grant such an Act, we do in fact follow the example of the Holy Alliance, " the doctors of Laybach," where the assembled sovereigns said that all CHAP. II.] WOODS'S APPEAL. 249 changes of government must proceed from sovereigns ; and it is said that we mark out the same rule for the people of Rhode Island. Now, will any man, will my adversary here, on a moment's reflection, undertalce to show the least resemblance on earth between what I have called the American doc- trine and the doctrine of the sovereigns at Laybach 1 What do I contend for t I say that the will of the people must prevail, when it is ascertained ; but there must be some legal and autheutic mode of ascertaining that will ; and then the people may malie what government they please. Was that the doctrine of Laybach f Was not the doctrine there held this, that the sovereigns should say what changes shall be made } Changes must proceed from them ; new constitutions and new laws emanate from them ; and all the people had to do was to submit. That is what they main- tained. All changes began with the sovereigns, and ended with the sovereigns. Pray, at about the time that the Congress of Laybach was in session did the allied powers put it to the people of Italy to say what sort of change they would have ? And at a more recent date, did they ask the citizens of Cracow what change they would have in their constitution 1 Or did they take away their constitution, laws, and liberties by their own sovereign act 1 All that is necessary here is, that the will of the people should be ascertained, by some regular rule of proceeding, prescribed by previous law. But when ascertained, that will is as sovereign as the will of a despotic prince, of the Czar of Muscovy, or the Emperor of Austria himself, though not quite so easily made known. A ukase or an edict signifies at once the will of a despotic prince ; but that will of the people, which is here as sovereign as the wiU of such a prince, is not so quickly ascertained or known ; and thence arises the necessity for suffrage, which is the mode whereby each man's power is made to tell upon the Constitution of the gov- ernment, and in the enactment of laws. One of the most recent laws for taking the will of the people in any State is the law of 1 845, of the State of New York.' It begins by recommending to the people to assemble in their several election districts, and proceed to vote for delegates to a con- vention. If you will take the pains to read that Act, it will be seen that New York regarded it as an ordinary exercise of legislative power. It applies all the penalties for fraudulent voting, as in other elections. It punishes false oaths, as in other cases. Certificates of the proper officers were to be held conclusive, and the will of the people was, in this respect, collected essentially in the same manner, supervised by the same officers, under the same guards against force and fraud, collusion and misrepresentation, as are usual in voting for State or United States officers. We see, therefore, from the commencement of the government under which we live, down to this late Act of the State of New York, one uniform current of law, of precedent, and of practice, all going to establish the point that changes in government are to be brought about by the will of the people, assembled under such legislative provisions as may be necessary to a-scertain that will, truly and authentically. — Mr. Webster's Arcjument in Latther v. Borden et cd., Jan. 27, 1848. Works of Daniel Webster, vi. 227-229. y 1 The Constitution of New York then existing (that of 1821, art. 8) provided ioi its own amendment by legislative proposal, iu substantially the same way as the con- stitutions of Pennsylvania, Rhode Island, and Massachusetts above considered. The Massachusetts provision (Amendment IX.) was introduced by Mr. Webster himself. Debates of Mass. Conv. of 1820, 124. — Ed. 250 SFROULE V. FREDERICKS. [CHAP. II. SPROULE V. FREDERICKS. Supreme Couet of Mississippi. 1892. [69 Miss. 898.] 1 L. W.Magruder, and Gibson, Henry, & JBien, for appellant. Miller, Smith, cfc JSirsh, for appellee. Woods, J., delivered the opinion of the court. The validity of the Constitution of 1890 is called in question by counsel for appellee, in a supplemental brief filed recentlj-, by con- sent of the court ; and, as the challenge meets us on the threshold of the case, we proceed at once to its consideration, briefly. In sup- port of this view of the invalidity of the Constitution, two propositions are asserted : 1. That a constitutional convention has power onh' to prepare or frame the body of a constitution, and that when prepared or framed the instrument is of no force or effect until ratified by a popular vote of the people ; and the Constitution of 1890, having never been submitted to or ratified by the people, is invalid ; and 2. That the changes made by the Constitution in the basis of suf- frage are violative of the Act of Congress readmitting the State of Mississippi into the Union in the year 1870, and invalidate that instrument. With confidence, we reject both propositions as unsound. It will be remembered that the case at bar is free from the difficulties which are supposed by some writers to arise out of a failure or refusal of a consti- tutional convention to yield to the direction of the legislature which summoned it that the Constitution framed shall be submitted to the people for ratification. The Act of the Legislature which provided for the assembling of the constitutional convention of 1890 declared that the end sought to be attained^ the work to be done, was the revision and amendment of the Constitution of 1869, or the enactment of a new constitution ; and it did not attempt to limit the powers of the conven- tion by imposing, or seeking to impose, upon that sovereign tribunal the mere legislative will that the Constitution enacted should be sub- mitted to the people for ratification. We have simplj' the case of a con- stitutional convention enacting a new constitution, and putting it into eflfect without an appeal to the people, in strict conformitj- to the legis- lative call which assembled. We have spoken of the constitutional convention as a sovereign body, and that characterization perfectly defines the correct view, in our opin- ion, of the real nature of that august assembly. It is the highest legis- lative body known to freemen in a representative government. It is supreme in its sphere. It wields the powers of sovereignty, specially delegated to it, for the purpose and the occasion, by the whole electoral 1 The statement of facts is omitted. — Ed. CHAP. n.J SPROULE V. FREDERICKS. 251 bodj', for the good of the whole Commonwealth. The sole limitation upon its powers is that no change in the form of government shall be i- done or attempted. The spirit of republicanism must breathe through ever}' part of the framework, but the particular fashioning of the parts of this frameworii is confided to the wisdom, the faithfulness, and the patriotism of tliis great convocation, representing the people in their sovereignty. The theorizing of the political essayist and the legal doc- trinaire, by which it is sought to be established that the expression of tlie will of the legislature sliall fetter and control the constitution- making body, or, in the absenqe of such attempted legislative direction, which seeks to teach that the constitutional convention can only prepare the frame of a constitution and recommend it to the people for adop- tion, will be found to degrade this sovereign body below tlie level of tlie lowest tribunal clothed with ordinary legislative powers. This theorizing will reduce that great bodj', which, in our State, at least, since the beginning of its existence, except for a single brief interval, in an exceptional period, by custom and the universal consent of the people, has been regarded as the repository- and executor of the powers of sovereignty, to a mere commission, stripped of all power, and author- ized only to make a recommendation. Whatever may be the safer and wiser course, as to putting into oper- ation the completed work of the constitutional convention, the opinions of the political theorists, which we are considering, will be found to rest upon grounds largely imaginary and fanciful. The constitutional convention itself, according to this theory, is looked upon with sus- picion and distrust, as being the introduction into our governmental system of a revolutionary device ; the chosen representatives of the sovereign people are dreaded, as likely to prove unfaithful to their mighty trust ; and the liberties of the people are in danger of subver- sion. This succinct statement of the grounds of these political theo- rists will demonstrate the unreal foundation upon which their teachings rest. The general judgment of the people of our own State has practi- callj- and strikingly repudiated the theory, from the foundation of the government. The usage in Mississippi, with a solitary exception in an extraordinary conjuncture of public affairs, gives it no support. That the government has lived from its birth to this hour with no valid funda- mental law on which to rest, except for a brief interval, cannot be true. 2. There is as little ground for the second branch of the conten- tion. . . . Reversed and remanded} 1 As to the previous constitations of Mississippi, see the tables in Jameson's Const. Conv. (4th ed.) Appendix, 651. It appears there that three out of five, in all, were, in fact, submitted to the people. — Ed. 252 KOEHLEE AND LANGE V. HILL. [OHAP. IL KOEHLER AND LANGE v. HILL. Supreme Court of Iowa. 1883. [60 Iowa, 543.] Appeal from Scott District Court. Saturdaj-, April 21. Action to recover for beer sold and delivered hy the plaintiffs to the defendant. Tiial to the courts judgment for the plaintiffs, and the defendant appeals. % Smith McPherson, Attornej--Genera], Peter A. Boyle, William E. Miller, J. A. Harvey, James F. Wilson, O. G. Nourse, John F. Dun- combe, and Liston McMillan, for appellant. Jiills & Block and Wright, Cvmmins & Wright, for appellees. Seevees, J. At a special election held on the 27th d&y of June, 1882, the electors of the State, by a majoritj- of about thirty* thousand, ratified an amendment to the Constitution, which, it is claimed, had been previously agreed to by the Eighteenth and Nineteenth General Assemblies, prohibiting the manufacture and use of intoxicating liquors as a beverage, including ale, wine, and beer, as therein provided. The question is fairly presented in the record in this case, whether or not the amendment aforesaid has been constitutionally agreed to and adopted, and this is the question discussed by counsel, and the only question we are called on to determine. The validity of the amend- ment, and whether the same now constitutes a part of the Constitution, depend upon the question whether the Eighteenth General Assembly agreed to the amendment which was ratified and adopted b.y the elec- tors, and whether the amendment was agreed to by the Eighteenth Gen- eral Assembly in the form and manner required by the Constitution. When the Constitution was adopted it was wisely therein provided, or at least it must be .so presumed, that " anj' amendment or amendments to this Constitution may be proposed in either House of the General Assembly ; and if the same shall be agreed to hy a majority of the mem- bers elected to each of the two Houses, such proposed amendment shall be entered on their journals, with the j-eas and naj^s taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published as provided by law for three months previous to the time of making such choice ; and if, in the General Assembly so next chosen as aforesaid, such proposed amendment or amendments shall be agreed to bj* a majority of all the members elected to each House, then it shall be the duty of the General Assembly to submit such proposed amendment to the people, in such manner and at such time as the Gen- eral Assembly shall provide ; and if the people shall approve and ratifj- such amendment or amendments bj' a majorit}' of the electors qualified to vote for members of the General Assembly, voting thereon, such amendment or amendments shall become a part of the Constitution of this State."— Art. 10, § 1. CHAP. II.] KOEHLER AND LANGE V. HILL. 253 This is tiie only way tlie Constitution can be amended or changed except by a convention called for that purpose. In compliance with the foregoing provision, there was introduced into the House of Representatives of the Eighteenth General Assembly a joint resolution. . . . Thereupon, such enrolled resolution was signed by the Speaker of the House and President of the Senate, and approved by the Governor. The joint resolution thus signed and approved was as follows : " No person shall manufacture for sale, or sell, or keep for sale, as a beverage, any intoxicating liquor whatever, including ale, wine, and beer." This proposed amendment to the Constitution was agreed to by the Nineteenth General Assembly', and ratified by the elec- tors at a special election, held on the 27th day of June, 1882. Counsel for the plaintiff insist that the joint resolution, at the time it was agreed to by the Senate [of the Eighteenth General Assembly'], contained the words " or to be used." Their contention is that it then reads as fol- lows : " No person shall manufacture for sale, or sell, or keep for sale, as a beverage, or to be used, any intoxicating liquor whatever, includ- ing ale, wine, and beer." The resolution claimed to have been agreed to by the Senate is materially ditferent in substance from the one rati- fied by the electors. Counsel for the appellant do not claim this is not so as shown by the journals, but their contention is that the enrolled resolution, signed bj- the Speaker of the House and President of the Senate, and approved by the Governor, is a verity, and is conclusive evidence that the resolution as enrolled was agreed to bj- both Houses of the Eighteenth General Assemblj-, or, if this is not so, that the pre- ponderance of the evidence is' in favor of the proposition that the reso- lution which was agreed to was correctly enrolled. The plaintitf contends that it is made clear and certain b}- an examination of the Senate jour- nal that the words " or to be used" were in the resolution when it passed the Senate, and that the journal is the best evidence of such fact. . . . [The Court (Beck, J. dissenting) held that it might examine the journals of the Eighteenth General Assembly ; and, as a result of the examination, that the amendment agreed to by the Senate was different from that which was agreed to and submitted to the people bj' the Nine- teenth General Assembly, and therefore, although ratified by the people, had not legally become a part of the Constitution.] 0>T Rehearing. Day, Ch. J. — A petition for rehearing was pre- sented in this cause, and the whole case has been re-argued by eminent counsel with much ability and research. In view of the great interest which has attached to this question, and of its public importance, we deem it not only proper, but necessary, to examine with considerable fulness the leading points relied upon as necessitating a conclusion difllerent from the one reached in the foregoing opinion. I. It is asserted in the petition for rehearing that " the judicial de- partment of the State has no jurisdiction over political questions, and cannot review the action of the Nineteenth General Assembly, and of the people, in the matter of the adoption or amendment of the Consti- 254 KOEHLER AND LANGE V. HILL. [CHAP. 11. tution of the State." This position practieallj- amounts to this : that the provisions of the Constitution for its own amendment are simply directory, and may be disregarded with impunity ; for it is idle to say that these requirements of the Constitution must be observed, if the departments charged with their observance are the sole judges as to whether or not they have been complied with. This proposition was advanced for the first time upon the petition for rehearing, and, if cor- rect, it is of course an end of the controversj'. Upon this branch of the case counsel cite Luther v. liorden, 7 How. 1. As this case has prin- cipally been relied upon by the advocates %f the theorj- now under con- sideration, and has been given great prominence in the discussions which have taken place, we desire to present its facts with a degree of fulness which, under ordinary circumstances, would perhaps be consid- ered unnecessarj", to the end that the degree of its applicabilitj- to the present ease may be fully understood. In 1841, the State of Rhode Island was acting under the form of gov- ernment established by the charter of Charles II. in 1663. In this form of government no mode of proceeding was pointed out by which amend- ments could be made. It authorized the legislature to prescribe the qualification of voters, and in the exercise of this power the right of suffrage was confined to freeholders. In 1841, meetings were held and associations were formed b^- those who were in favor of a more extended right of suffrage, which finally .resulted in the election of a convention to form a new Constitution, to be submitted to the people for their adoption or rejection. The persons chosen came together and framed a Constitution by which the right of suffrage was extended to every male citizen of twenty-one years of age who had resided in the State for one j-ear. Upon a return of the votes, the convention declared that the Constitution was adopted and ratified by a majorit3' of the people of the State, and was the paramount law and Constitution of Rhode Island. The charter government did not admit the validity- of the pro- ceedings, nor acquiesce in them. On the contrary-, in January, 1842, when this new Constitution was communicated to the Governor and b}' him laid before the legislature, it passed resolutions declaring all acts done for the purpose of imposing that Constitution upon the State, to be an assumption of the powers of government, in violation of the rights of the existing government and of the people at large, and that it would maintain its authority and defend the legal and constitutional rights of the people. Thomas W. Dorr, who had Iieen ekcted Governor under the new Constitution, prepared to assert the authority of that govern- ment by force, and many citizens assembled in arms to support him. The charter government thereupon passed an Act declaring the State under martial law, and at the same time proceeded to call out the mili- tia to repel the threatened attack, and to subdue those who were en- gaged in it. The plaintiff, Luther, was engaged in supporting the new government, and, in order to arrest him, his house was broken and en- tered by the defendants, who were enrolled in the military force of the CHAP. II.J KOEHLEK AND LANGE V. HILL. 255 old government, and in arms to support its authority. The government under the new Constitution had but a short and ignoble existence. In Ma}-, 1842, Dorr made an unsuccessful attempt, at the head of a mili- tarj- force, to get possession of the State ai'senal at Providence, which was repulsed. In June following, an assemblage of some hundreds of armed men, under his command at Chepatchet, dispersed, upon the ap- proach of the troops of the old government, and no further effort was made to establish the new government. In Januar}', 1842, the charter government took measures to call a convention to revise the existing form of government, and a new Constitution was formed, which was ratified by the people, and went into operation in May, 1843, at which time the old government formally surrendered all its powers. Under this government Dorr was tried for treason, and in June, 1844, was sentenced to imprisonment for life. In October, 1842, Luther brought an action in the Circuit Court of the United States, against Borden and others, to recover damages for the breaking and entering of his house in June, 1812. The defendants justified, alleging that there was an insurrection to overthrow the government, that martial law was declared, that plaintiff was aiding and abetting the insurrection, that defendants were enrolled in the militia force of the State and were ordered to arrest the plaintiff. The plaintiff relied upon the fact that the Dorr govern- ment, to wliich he adhered, was the legal government of the State, and, as the new Constitution had never been recognized by any department of the old government, he offered to prove at the trial, by the produc- tion of the original ballots, and the original registers of the persons voting, and b^- the testimony of the persons voting, and by the Consti- tution itself, and by the census of the United States for the year 1840, that the Dorr Constitution was ratified by a large majority of the male people of the State, of the age of twenty-one and upwards, and also by a majoritj' of those who were entitled to vote for general oflficers under the then existing laws of the State. The Circuit Court rejected the evidence, and instructed the jury that the charter government, and laws under which the defendants acted, were, at the time the trespass was alleged to have been committed, in full force and effect, and constituted a justification of the acts of the defendants. The correctness of this ruling involved the only question, which was taken to the Supreme Court of the United States for review. The Supreme Court held that the evidence was properly- rejected. Of the correctness of that decision no one can entertain the shadow of a doubt. But the differences be- tween that case and this are so many and so evident, as to deprive it of all ibrce as an authority in the present controversy. In that case an entire change in the form of government was undertaken ; in this, simply an amendment, in no manner affecting the judicial authoritj- of those acting under the existing government, is sought to be incorporated into the existing Constitution. In that case the charter provided no means for its amendment ; in this, the mode of an amendment is spe- cifically provided. In that case the authority of the court was invoked 256 KOEfiLER AND LANGE V. HILL. [CHAP. H. for the admission of oral evidence to overthrow the existing government and establish a new one in its place; in this, that authority is invoked simply to preserve the existing Constitution intact. It is evident, from an examination of the entire case of Luther v. Borden, that the question which the court was considering pertained to the power of the Federal courts to determine between rival constitu- tions in the States. Tlie power is not denied to the State courts, unless one of the constitutions involved in the controversj' be the one under which the court is organized. This is full^- apparent from the whole opinion. Eeferring to the trial of Thomas W. Dorr for treason, in the Supreme Court of Rhode Island, the court say : " It is worthy of remark, however, when we are referring to the authority' of State decisions, that the trial of Thomas W. Dorr took place after the Con- stitution of 1843 went into operation. The judges who decided that case held their authority under that Constitution ; and it is admitted on all hands that it was adopted by the people of the State, and is the lawful and established government. It is the decision, therefore, of a State court, whose judicial authority to decide upon the Consti- tution and laws of Rhode Island is not questioned hy either part3- to this controversy, although the government under which it acted was framed and adopted under the sanction and laws of the charter govern- ment. The point, then, raised here has already been decided by the courts of Rhode Island. The question relates altogetlier to the Con- stitution and laws of that State ; and the well-settled rule in this court is, that the courts of the United States adopt and follow the decisions of the State courts in questions which concern merelj- the Constitution and laws of the State. Upon what ground could the Circuit Court of the United States, which tried tliis case, have departed from this rule, and disregarded and overruled the decisions of the courts of Rhode Island?" It seems from the foregoing quotation, which is really the fact, that the courts of Rhode Island had determined the question involved in Luther v. Borden, and that the courts of the United States were bound by and followed that adjudication. The lariguage of the court which, it is claimed, asserts the doctrine that the question of a change of constitutions is a political one, with which courts have nothing to do, was clearlj- emploj-ed with reference to the peculiar facts of the case. This is apparent from the following language of the opinion, which is found upon pages 39, 40. " Indeed, we do not see how the question could be tried and judiciallj- decided in the State court. Judicial power presupposes an established govern- ment, capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority- of the government from which it is derived, and if the authority of that government is annulled and overthrown, the power of its courts and other officers is annulled with it, and if a State court should enter upon the inquiry proposed in this case, and should come to the conclusion that the CHA?, II.] KOEHLEK AND LANGE V. HILL. "^ .257 government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and the authority of the government under which it is exercising judicial power." That this reasoning is eminently sound no one can doubt. A court which, under the circumstances named, should enter upon an inquiry as to the existence of the Constitution under which it was acting, would be like a man trying to prove his personal existence, and would be obliged to assume the very point in dispute, before taking the first step in the argument. It is apparent that the reasoning employed in that case can have no application whatever to an amendment to a constitution, which does not affect the form of govei'nment, or the judi- cial powers of existing courts. The case of Luther v. Borden gives no countenance whatever to the doctrine that the sovereignty of the people extends rightfully to the overturning of constitutions and the adoption of new ones, without regard to the forms of existing pro-i visions. It is true that right, under our form of government, exists,, but it is a revolutionar}- and not a constitutional right. When that right is invoked, a question arises which is above the Constitution, and above the courts, and which contending factions can alone determine by appeal to the dernier resort. In such a case as that, might makes right. That there are questions of such a character as to admit of no adjustment but tlirough an appeal to arms, we freely admit. This arises out of the imperfections of human government. A government which could provide for the peaceful adjustment of all questions would be more than human. But surely no sagacious statesman or wise jurist will seek, by a narrow construction of judicial power, to extend the questions which are beyond the domain of the courts, and capable of solution only bj- an appeal to arms. Happilj- for the permanency and security of our institutions, the present case, as we believe, involves no such question. It lias been said that changes in the Constitution may be introduced in disregard of its provisions ; that, if the majority of the people desire a change, the majority must be respected, no matter how the change may be effected, and tiiat the change, if revolution, is peaceful revolu- tion. But the revolution is peaceful onl3' upon the assumption that the party opposed surrenders its opposition and voluntarily acquiesces. If it objects to the change, then a question arises which can be deter- mined only in one of two methods, b}' the arbitrament of the courts, or by the arbitrament of the sword. . . . The contest between the rival governments in the State of Rhode Island raised a question which was above the power of the existing courts : and it is a matter of history that it was not determined until the adherents of the Dorr Constitution fled at the point of the bayonet. We have read history to little pur- pose, if we refuse to learn fi;om its examples or profit by its teachings. The public dangers which threatened the republic fi-om the rival claims VOL. I, — 17 258 KOEHLER AND LANGE V. HILL. [CHAP. H. for the Presidencj', so graphically and so beautifully described by appellant's attorney, were averted only through a commission created b^' Congress, intrusted with judicial powers, which judicially deter- mined the questions involved, and to whose decisions the people yielded voluntary obedience. That judicial decision averted the hor- rors of a civil war. The political department of the government, to which so much reference has been made in this case, stood appalled and impotent in the face of the great danger, and yet we are asked to abdicate our functions, to denj' our jurisdiction, and to leave the question of an amendment to the Constitutipn, unless voluntarily acqui- esced in, to be determined by a resort to arms. "We ought to ponder long before we adopt a doctrine so fraught with danger to republican institutions. All the danger lies in the line of the argument of appel- lant's attorneys. The courts can never overturn our institutions or subvert our liberties. Thej- command neither the purse nor the sword of the State. But a people which is educated to disrespect the de- cisions and disregard the adjudications of the courts, is prepared for anarchj', with all its attendant evils and dreadful consequences. Wq maj-, perhaps, be excused, if in the interest of social order and public security, and the permanency of republican institutions, we enter a most earnest protest against the heresies which have been advanced in this case. The appellant further cites and relies upon Williams v. Suffolk In- surance Company, 13 Pet. 414. The only point determined in this is, that where the President, in a message to Congress, and in correspond- ence carried on with the government of Buenos Ayres, denied the jurisdiction of that countr}' over the Falkland Islands, the courts must take the facts to be so. The determining of the territorial jurisdiction of a foreign country, from the very nature of the subject, cannot reside in the courts of this country, but must be intrusted to the treatj'-making power, which rests in the President by and with the advice and consent of the Sen- ate. When, therefore, the President, in his official communications, has denied the jurisdiction of a foreign country over specified territory, it ma}- well be conceded that it would not be within the jurisdiction of the courts to determine the fact to be otherwise. We are, however, unable to see that this case has anj' bearing upon the question now under considerationf The case of United States v. Jiaker et al., 5 Blatchford, 12, is also cited and relied upon by appellant. This is a nisi prius case. The defendants were indicted for piracy, and were tried in 1861. They were acting as privateers, under a commission from Jefferson Davis, President of the Confederate States, which thej- claimed was, at least, a government de facto, and entitled to the rights and privileges that belong to a sovereign and independent nation. Nelson, J., upon this branch of the case, charged the jurj- as follows : " The court do not deem it pertinent or material to enter into this wide field of inquiry. CHAP. II.] ' KOEHLEE AND LANGE V. HILL. 259 This branch of the defence involves considerations that do not belong to the courts of the country. It involves the determination of great public and political questions, which belong to tlie departments of our government that have charge of our foreign relations — the legislative and executive departments. When those questions are decided b^- those departments, the courts follow the decisions, and, until those departments have recognized the existence of the new government, the courts of the nation cannot. Until this recognition of the new govern- ment, the courts are obliged to regard the ancient state of things as remaining unchanged." This case falls under the same principle as the preceding case. The case of White v. ITart, 13 Wallace, 646, which is the only remaining case cited by the appellant upon this branch of the case, originated as follows: In Januarj-, 1866, the plaintiff instituted a suit in the Supreme Court of Chattooga County, Georgia, upon a promis- sory note. Tlie defendant pleaded in abatement that the consideration of the note was a slave, and that, bj- the present Constitution of the State of Georgia, the court is prohibited to take and exercise juris- diction or render judgment thereon. To this plea the plaintiflf de- murred. The court overruled the demurrer, and gave judgment for the defendants, thus enforcing the constitutional provision. The plain- tiff excepted, and removed the case to the Supreme Court of the State, where the judgment was affirmed, and the plaintiff thereupon prose- cuted a writ of error in the Supreme Court of the United States. The Constitution of Georgia of 1868 contains the following clause : " Provided, that no court or officer shall have, nor shall the General Assembly give, jurisdiction to try, or give judgment on, or enforce any debt, the consideration of which was a slave or the hire thereof." The plaintiiT insisted that this provision was in conflict with the Constitution of the United States, in that it impaired the obligation of contracts. The defendant sought to maintain the judgment in his favor, upon the ground, amongst others, that the Constitution of Georgia was adopted nnder tlie dictation and coercion of Congress, and is the Act of Con- gress rather than of the State, and that, though a State cannot pass a law impairing the validity of contracts, Congress can, and that for this reason the inhibition in the Constitution of the United States has no effect in this case. In passing upon this question the court says : " Congress authorized the State to frame a new constitution, and she elected to proceed within the scope of the authority conferred. The result was submitted to Congress as a voluntary and valid offering, and was so received, and so recognized in the subsequent action of that body. The State is estopped to assail it upon such an assumption. Upon the same ground she might deny the validity of her ratification of the constitutional amendments. The action of Congress upon the subject cannot be inquired into. The case is clearly one in which the judicial is bound to follow the action of the political department of the government, and is concluded bj' it." 260 KOEHLEE AND LANGE V. HILL. [CHAP. IL This case is a very peculiar one, from the fact that the defendant did not claim that the Constitution was not in force on account of its being adopted under coercion, but he claimed the benefit of its provisions because it was adopted under coercion. We most heartilj' approve the decision oF the court in this case. The court might even have gone further, if the question had been in the case, and decided that, if a question had been raised in the courts of Georgia as to the validity of the Constitution, on the ground that its adoption had been coerced by Congress, the courts of that State could not entertain jurisdic- tion of the question. But even such a (decision as that would not have been at all in conflict witii our right to entertain jurisdiction in this case. These are all the authorities relied upon by appellant upon this branch of tiie case. We think it is apparent that the}' do not, even b}' implication, sustain the doctrine contended for, that the judicial de- partment of the State cannot review the action of the General Assembly in the matter of the amendment of the Constitution of the State. Coun- sel have drawn an appalling picture of the wreck in which our political institutions would be involved, if the courts should conclude to decide that the Constitution of 1857, under which thej' are organized, had not been properly adopted. The courts of this State possess no such power, and they could not assume such a jurisdiction. The reason why a court could not enter upon the determination as to the validity of a constitu- tion under which it is itself organized, is forcibly- set forth in the case of Luther v. Borden, supra, upon which appellant relies. The dis- tinction between such a case and one involving merely an amendment, not in any manner pertaining to the judicial authority, must at once be apparent to the legal mind. The authorities recognize the distinc- tion. We are at a loss to know wh}- appellant's counsel ignore and disregard it. Appellant's counsel cite and relj- upon section 2, Article 1, of the Constitution of the State. Tliis section is a portion of the Bill of Rights, and is as follows : " All political power is inherent in the people. Government is instituted for the protection, securitj-, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good maj' require." Ab- stractly considered, there can be ijo doubt of the correctness of the propositions embraced in this section. These principles are older than constitutions, and older than governments. The people did not derive the rights referred to from the Constitution, and, in their nature, they are such that the people cannot surrender them. The people would have retained them if they had not been specificallj- recognized in the Constitution. But let us consider how these rights are to be recognized in an organized government. The people of this State have adopted a constitution which specifically designates the modes for its own amend- ment. But this section declares the people to have the right at all times to alter or reform the government, whenever the public good may re- quire it. If the people unanimouslj' agree respecting an alteration in CHAP. II.] KOEHLEE AND LANGE V. HILL. 261 the government, there could be no trouble, for there would be no one to object. Suppose, however, a part of the people conclude that the public good requires an alteration or reformation in the government, and they set about the adoption of a new constitution, in a manner not authorized in the old one. Suppose, also, as would most lilcel^- prove to be the case, that a part of the people are content with the existing government, and will not consent to tlie change, and that the Governor, who, under the Constitution, is the " Commander-in-chief of the militia, the army and navy of the State," determines to maintain the existing government by force. It is evident that the people who thinlc the pub- lic good requires a change, can establish these changes onl^' by superior force. If thej- are powerful enough to succeed, well. They will have altered or reformed the government. But if they are not powerful enough to succeed, their attempt to overthrow the government is treason, and they are liable to punishment as traitors. The3' have the right to alter their government, in a manner not recognized in the Constitution, only when they can maintain that right by superior force. It follows, then, after all, that the much boasted right claimed under this action, is simplj- the right to alter the government in the manner prescribed in the existing Constitution, or the right of revolution, which is a right to be exercised, not under the Constitution, but in disregard and independently of it. For a very valuable case upon this subject, see Wells v. JBain, 75 Pa. St. 39. . . . That eminent jurist and law-writer, Justice Coolej-, in his worli upon Constitutional Limitations, p. S98, says : " Although l\y their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not tliereb}- divested them- selves of the sovereignty. The government which they create thej' re- tain in their own hands a power to control, so far as they have thought needful, and the three departments are responsible to and subject to be ordered, directed, changed, or abolished by them. But this control and direction must be exercised in the legitimate mode previously agreed upon. The voice of the people can only be of legal force when ex- pressed in the times and under the conditions which they themselves have prescribed and pointed out by the Constitution ; and if any attempt should be. made by any portion of the people, however largo, to inter- fere with the regular workings of the agencies of government, at any other time, or in any other mode, than as allowed by existing law, either constitutional or statutory, it would be revolutionary in char- acter, and must be resisted and repressed by the officers who for the time being represent legitimate government." The author cites Oibson V. Mason, 5 Nevada, 291, in which Chief Justice Lewis employs the following language : " The maxim which lies at the foundation of our government is that all political power originates with the people. But since the organization of government, it cannot be claimed that either the legislative, executive, or judicial powers, either wholly or in part, can be exercised by them. By the institution of government the people 262 KOEHLER AND LANGE V. HILL. [CHAP. II. surrender the exercise of all these sovereign functions of government to agents chosen by themselves, who, at least theoretically-, represent the supreme will of their constituents." On page 30, Judge Cooley further says : " In the original States, and all others subsequently admitted to the Union, the power to amend or revise their constitutions resides in the great bodj- of the people as an organized body politic, who, being vested with ultimate sovereignty, and the source of all State authority, have power to control and alter the law which they have made at their will. But the people in the legal sense must be understood to be those who, by t^e existing Constitution, ^re clothed with politiual rights, and who, while that instrument remains, will be the sole organs through which the will of the body politic can be expressed. But the will of the people to this end can onl}' be ex- pressed in the legitimate modes b3- which such a bodj- politic can act, and which must eitlier be prescribed by the Constitution whose revision or amendment is sought, or bj- an Act of the legislative department of the State, which alone would be authorized to speak for the people upon this subject, and to point out a mode for the expression of their will, in the absence of any provision for amendment or revision contained in the Constitution itself." ... In Collier v. Frierson, 24 Ala. 108, it appears that the legislature had proposed eight different amendments to be submitted to the people at the same time. The people had ap- proved them, and all the requisite proceedings to make them a part of the Constitution had been had, except that in the subsequent legislature the resolution for their ratification had by mistake omitted to recite one joi them. On the question whether this one had been adopted, the court say: " The Constitution can be amended in but two ways ; either by the people who originally framed it, or in the mode prescribed in the instrument itself. If the last mode is pursued, the amendments must be proposed by two thirds of each House of the General Assembly; they must be published in print at least three months before the next general election for representatives ; it must appear from the returns made to the Secretary of State that a majority of those voting for repre- sentatives have voted in favor of the proposed amendments, and they must be ratified by two thirds of each House of the next General As- sembly, after such electioUj voting by yeas and nays, the proposed amendments having been read at each session three times on three several days in each House. We entertain no doubt that to change the Constitution in any other mode than hy a convention, every requisition which is demanded b}- the instrument itself must be observed, and the omission of any one is fatal to the amendment. We scarcely deem anj- argument necessarj^ to enforce this proposition. The Constitution IS tlie supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said that cer- tain acts are to be done, certain requisites are to be observed, before a change can be eflfected. But to what purpose are tliose acts required or those requisitions enjoined, if the legislature, or any department of CHAP. II.J KOEHLER AND LANGE V. HILL. 263 the government, can dispense with them? To do so would be to violate the instrument which they are sworn to support ; and every principle of public law and sound constitutional policy requires the court to pro- nounce against any amendment which is not shown to have been made in accordance with the rules prescribed by the fundamental law." In this case counsel distinctly made the point that, " when the legislature has declared an act done, which it alone has the power to do, it does not become the judiciary to gainsay it." The court repudiated this doctrine and asserted its jurisdiction in the following terse and unam- biguous language : " Every principle of public law and sound constitu- tional pplic}' requires the courts to pronounce agaftist every amendment which is shown not to have been made iu accordance with the rules prescribed by the fundamental law." The case of State v. MoBride, 4 Mo. 303, involved a question as to the proper adoption of an amendment to the Constitution of the State of Missouri. The counsel on behalf of the State contended almost in the language of appellant's counsel in this case, " that this amendment having been passed and promulgated bj' the Eighth General Assembly, as a part of the Constitution, this court is bound to receive and give it the effect of a constitutional provision ; it being an act done by the General Assembl3-, not in their capacity of ordinar3- legislation, but the exercise of sovereign authoritj- in a conventional capacity." The language of the court in passing upon this position of counsel is so applicable to, and so entirely decisive of, the question now under con- sideration, that we quote in full. The court says : " The Constitution of this State requires that each officer, whether civil or military, shall, before entering on the duties of his office, take an oath or affirmation to support the Constitution of the United States and of this State, and to demean himself faithfullj' in office. In pursuance of the duty im- posed by this oath, it has become quite a common business of the courts to examine the Acts of the legislative bodj', to see whether any of them infringe the Constitution, and to declare that such Acts, or parts of Acts, as are repugnant to the Constitution, are not the law of the land, and are, therefore, of no force. = No educated man at this day denies this right to the courts. On the contrary it is considered a base abandonment of dutj' for a judge to hesitate, when it becomes his duty to examine the acts of the more powerful branches of the govern- ment. If, then, the Constitution be the supreme law of the land, it becomes the duty of the judge to look into and understand well this first law of the land. The General Assemblj-, acting itself under a power granted by the convention, can onlj' change the Constitution in the manner presented to it. Is, then, this court, each member of which is sworn to support the Constitution, that first law of the land, to be told that they are not to inquire what that Constitution is? We are told that this is a matter which the people have confided to two succes- sive General Assemblies, and that their declaration of what is done is to be to us evidence that the thing is done, thej- being sworn, as well 264 KOEHLEK AND LANGE V. HILL. [CHAP. IL as ourselves, to support the Constitution. Yet we look into the Acts of each General Assembl}", and if we find anj' of its Acts violating the Constitution, we declare such Act null and void. The General As- sembly, or two General Assemblies in succession, are but public servants, and it is disrespectful to them to say that their acts will not bear inspection. If, then, they will bear inspection, and if, as we believe, they have le"ft behind them evidence of what they have done, why need we, whose duty it is to observe the Constitution as the su- preme law of the land, hesitate respettfuUy to approach and examine those proofs, and see if indeed the Con|f.itution of 1820 has been changed, or if by neglecting to pursue the course pointed out bj* the 12th section of the Constitution, they have failed to give to their acts the validity of constitutional acts. To tell us that the people have re- served to themselves the sole right of looking into the matter, is to tell us tliat we are sworn to support a constitution which we are not per- Hiitted to know." Those two cases contain the calm adjudications of respectable courts, in times when there was no popular excitement, and upon constitutional amendments not arousing popular interest. They are, therefore, entitled to the highest consideration, as the}- were entirely uninfluenced by popular clamor. It is not all material tliat in State v. McSride, supra, the court finally concluded that the amendment under consideration had been properl}' adopted. The court had to determine its power to decide, before it could decide in favor of the amendment. As was well said by one of appellant's attorneys upon the argument : " The power to decide, involves the power to decide either waj'." In the State v. Swift, 69 Ind. 505, the jurisdiction of the court was exercised, and an amend- ment to the Constitution of the State of Indiana was held not to have been properly adopted. In the opinion the court say : " The people of a State may form an original constitution, or abrogate an old one or form a new one, at anj' time, without anj' political restric;tion except the Constitution of the United States ; but if thej- undertake to add an amendment, by the authority' of legislation, to a constitution alread}' in j existence, they cah do it only by the. method pointed out by the consti- [ tution to which the. amendment is to be added. The power to amend a constitution by legislative action does not confer the power to break it, any more than it confers the power to legislate on anj- other subject Contrary to its prohibitions." In Westinghausen v. The People, 44 Mich. 265, the Supreme Coui-t of Michigan entertained jurisdiction of a question as to the adoption of an amendment to the Constitution of that State. The Prohibitory Amendment Cases, 24 Kans. 700^ in so far as they assume jurisdiction over the question involved, are in harmohy with all the cases upon the subject. In State v. Timme, 11 N. W. Kep. 785, the Supreme Court of Wisconsin assumed jurisdiction of a question involving the validitj' of an amendment to the Constitution of that State. The same thing was done in Trustees University of JVbrth Carolina v. Melver, 72 N. C. 76. CHAP. II.] KOEHLER AND LANGE V. HILL. 265 It is true that in tiie last five cases the question of jurisdiction was not raised by counsel. But the courts could not have entered upon an examination of the cases without first determining in favor of their jurisdiction. If the^' entertained doubts respecting their jurisdiction, it was the duty of the courts to raise the question themselves. We have then seven States, Alabama, Missouri, Kansas, Michigan, North Carolina, Wisconsin, and Indiana, in which the jurisdiction of the courts over the adoption of an amendment to a constitution has been recognized and asserted. In no decision, either State or Federal, has this jurisdiction been denied. We may securely rest our jurisdiction upon the authority of these cases. He would be a bold jurist, indeed, who would ride rough-shod over such an unbroken current of judicial authority, so fortified in principle, sustained by reason, and so neces- sary to the peaceful administration of the government. . . . Abidingl}^ and firml3' convinced of the correctness of our former conclusion, recog- nizing no superior higher than the Constitution, acknowledging no fealty greater than loyalty to its principles, and fearing no consequences except those which would flow from a dereliction in duty, we adhere to and reaflSrm the doctrines already announced. The petition for rehearing is overruled. . . . [The dissenting opinion of Beck, J., is omitted.]* 1 Compare Const. Prohib. Amend. 24 Kans. 700; Jameson, Const. Conr. (4tli ed.), §§ 561, 574 f, 574/ and ch. viii. passim. As regards the proper evidence of the factum of a statute, the right to consult the legislative journals, and the finally authentic quality of the enrolment, see Y. B. H. VI., 17, 8 (1455) ; King v. Countess Dowager of Arundel, Hob. 110 (1616), and the carefully considered case of Fields. Clark, 143 U. S. 649, vifith a note, lb. 661, referring to the cases in the several States. — Ed. 266 LIVINGSTON V. VAN INGEN. [CHAP. in. CHAPTER III. THE JURISDICTION OF THE UNITED STATES. In Livingston and Fulton v. Van Ingen, et al. 9 Johns. 507, (1812), it was held that statutes of New Tork granting to the plain- tiffs the exclusive right of navigating the waters of that State in vessels propelled by steam, were riot in violation of the Constitution of the United States ; ^ and the same doctrine was afterwards held in Gibbons V. Ogden, 17 Johns. 488 (1820). This doctrine was overruled b3- the Supreme Court of the United State8< on error, in Gibbons v. Ogden, 9 Wheat. 1 (1824), so far as concerned vessels licensed under the statutes of the United States for regulating the coasting trade, and navigating between New York and other States ; and in Worth River Steamb. Co. V. Livingsta?!, 3 Cow. 713 (1825), as regards vessels similarly licensed and navigating merely the waters of New York. In Livingston v. Van Ingen, ubi supra, p. 573, Kent, C. J., said: " The legislative power, in a single, independent government, extends to every proper object of power, and is limited only b^- its own consti- tutional provisions, or by the fundamental principles of all government, and the unalienable rights of mankind. In the present case, the grant to the appellants took away no vested right. It interfered with no man's propertj'. It left every citizen to enjoj' all the rights of naviga- tion, and all the use of the waters of this State which he before enjoyed. There was, then, no injustice, no violation of first principles, in a grant "fo the appellants, for a limited time, of the exclusive benefit of their -own hazardous and expensive experiments. The first impression upon every unprejudiced mind would be, that there was justice and policy in the grant. Clearly, then, it is valid, unless the power to make it be taken away by the Constitution of the United States. " We are not called upon to say affirmatively what powers have been granted to the general government, or to what extent. Those powers, whether express or implied, may be plenary and sovereign, in refer- ence to the specified objects of them. They may even be liberally construed in furtherance of the great and essential ends of the govern- ment. To this doctrine I willingly accede. But the question here is, not what powers are granted to that government, but what powers are retained by this, and, particularly, whether the States have absolutelj' parted with their original power of granting such an exclusive privilege as the one now before us. It does not follow, that because a given ' In 1811, it had been held in the same case that the Circuit Court of the United States (1 Paine, 45) had no jurisdiction. — Ed. CHAP. III.] LIVINGSTON V. VAN INGKN. 267 power is granted to Congress, the States cannot exercise a similar power. We ought to bear in mind certain great rules or principles of construction peculiar to the case of a confederated government, and by attending to them in the examination of the subject, all our seeming difficulties will vanish. " When the people create a single, entire government, they grant at once all the rights of sovereignty. The powers granted are indefinite, ^ and incapable of enumeration. Everything is granted that is not ex- presslj- reserved in the constitutional charter, or necessarily retained as inherent in the people. But when a Federal government is erected with only a portion of the sovereign power, the rule of construction is directly the reverse, and every power is reserved to the member that is >• not, either in express terms, or by necessary implication, taken away from them, and vested exclusively in the Federal head. This rule has not only been acknowledged by the most intelligent friends to the Constitution, but is plainly declared by the instrument itself. Congress Lave power to lay and collect taxes, duties, and excises, but as these powers are not given exclusively, the States have a concurrent juris- diction, and retain the same absolute powers of taxation which they - possessed before the adoption of the Constitution, except the power of laying an impost, which is expressly taken away. This very exception proves that, without it, the States would have retained tlie power of laying an impost; and it further implies, that in cases not excepted, the authority of the States remains unimpaired. " This principle might be illustrated by other instances of grants of power to Congress with a prohibition to the States from exercising the like powers ; but it becomes unnecessary to enlarge upon so plain a proposition, as it is removed beyond all doubt by the tenth article of the amendments to the Constitution. That article declares that ' the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, ^ or to the people.' The ratification of the Constitution by the conven- tion of this State, was made with the explanation and understanding, that ' every power, jurisdiction, and right, which was not clearly dele- gated to the general government, remained to the people of the several States, or to their respective State governments.' There was a similar provision in the Articles of Confederation,^ and the principle results from the very nature of the Federal Government, which consists only of a defined portion of the undefined mass of sovereign power origi- nally vested in the several members of the Union. There may be inconveniences, but generally there will be no serious difficulty, and there cannot well be any interruption of the public peace, in the con- current exercise of those powers. The powers of the two governments are each supreme within their respective constitutional spheres. They 1 The Articles (Art. II.) read : "Each State retains . . every power . . . which is not by this confederation expressly delegated." . . . The Tenth Amendment omits the word " expressly." — Ed. 2-68 STURGES V. CKOWNISSHIELD. [CHAP. III. may each operate witli full effect upon different subjects, or they may, as in the case of taxation, operate upon different parts of the same , object. The powers of the two governments cannot indeed be supreme over each other, for that would involve a contradiction. When those powers, therefore, come directly in contact, as when they are aimed at each other, or at one indivisible object, the power of the State is sub- ordinate, and must yield. The legitimate exercise of the constitutional powers of tbe general government becomes the supreme law of the land, and the national judiciary is specially charged with the mainte- nance of that law, and this is the true and' efficient power to preserve order, dependence, and harmony in our complicated system of govern- ment. We have, then, nothing to do in the ordinary course of legis- lation, with the possible contingency of a collision, nor are we to em- barrass ourselves in the anticipation of theoretical difficulties, tlian which flothing could, in general, be more fallacious. Such a doctrine would be constantly taxing our sagacity, to see whether the law might not contravene some future regulation of commerce, or some moneyed or some military operation of the United States. Our most simple muni-' cipal provisions would be enacted with diffidence, for fear we might involve ourselves, our citizens and our consciences, in some case of usurpation. I<"ortunately for the peace and happiness of this country, ■we have a plainer path to follow. We do not handle a work of such hazardous consequence. We are not alwa3's waliiing per ignes suppo- sitos cineri duloso. Our safe rule of construction and of action is this, that if any given power was originally vested in this State, if it has not been exclusively ceded to Congress, or if the exercise of it has not been prohibited to the States, we may then go on in the exercise of the je power until it comes practically* in collision with the actual exercise of some congressional power. When that happens to be the case, the State authority will so far be controlled, but it will still be good in all those respects in which it does not absolutely contravene the provision of the paramount law." * Previous to the formation of the new Constitution, we were divided into independent States, united for some purposes, but, in most respects. Sovereign. These States could exercise almost everj- legislative power, and, among others, that of passing bankrupt laws. When the Ameri- can people created a national legislature, with certain enumerated pow- ers, it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States ; and remain, after the adop- tion of the Constitution, what they were before, except so far as they may be abridged by that instrument. In some instances, as in making treaties, we find an express prohibition ; and this shows the sense of the convention to have been, that the mere grant of a power to Con- 1 See 1 Kent Com. (12th ed.) 391, 432, et scj. — Ed. CHAP. III.] GIBBONS V. OGDEN. 269 gress did not imply a prohibition on the States to exercise the same power. But it has never been supposed, that this concurrent power of legislation extended to every possible ease in which its exercise by the States has not been expressly prohibited. The confusion resulting from such a practice would be endless. The principle laid down by the counsel for the plaintiff, in this respect, is undoubtedly correct. When- ever the terms in which a power is granted to Congress, or the nature of the power, require that it should be exercised exclusively bj- Con- gress the subject is as completely taken from the State legislatures, as if they had been expressly forbidden to act on it. Is the power to estabUsh uniform laws on the subject of bankrupt- cies, throughout the United States, of this description ? . . . Marshall, C. J. (for the court), in Sturges v. Crowninshield, 4 Wheat. 192- 193 (1819). As preliminary to the very able discussions of the Constitution which we have heard from tlie Bar, an§l as having some influence on its con- struction, reference has been made to the political situation of these States, anterior to its forratrtion. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But, when these allied sov- ereigns converted their league into a government, when thej- converted their congress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utilitj', into a legis- lature, empowered to enact laws on the most interesting subjects, the whole character in which the States appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected. This instrument contains an enumeration of powers expressly granted by the people to their government- It has been said that these powers ought to be construed strictly. But why ought they to be so construed ? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress is authorized " to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred ; nor is there one sentence in the Constitution, which has been pointed out by the gentle- men of the Bar, or which we have been able to discern, that prescribes this rule. "We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a strict construction? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the appli- cation of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the* words of the grant, as usually understood, im- 270 GIBBONS V. OGDEN. [CHAP. III. port, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the objects for which it is de- clared to be instituted, and to which the powers given, as fairly under- stood, render it competent ; then we cannot perceive the propriet3- of this strict construction, nor adopt it as the rule b3' which the Consti- tution is to be expounded. As men whose intentions require no con- cealment, generally' empio}' the words which most directh- and aptly express the ideas thej' intend to convey, the enlightened patriots who framed our Constitution, and the people wh» adopted it, must be under- stood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting tJie extent of any given power, it is a well-settled rule that the objects for which it was given, espe- cially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor, if retained by himself, or which can enure solely to the benefit of the grantee ; but is an investment of power for the general advantage, in the hands of agents selected for that purpose ; which power can never be exercised b}- the people themselves, but must be placed in the hands of agents, or lie dormant. We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred. . . . If, as has always been understood, the sovereign*}- of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United Slates. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of de- claring war, the sole restraints on which thej' have relied, to secure them from its abuse. They are the restraints on which the people must often relj- solely, in all representative governments. . . . Marshall, C. J. (for the court), in Gibbons v. Offden, 9 Wheat. 187-189 (1824).i 1 In 1789, the Constitution of the United States, having been adopted by the required number of States . . went into operation, and became the law of the land. This system was founded upon an entirely different principle from that of the confed- eration. Instead of a league among sovereign States, it was a government formed by the people, and to the extent of the enumerated subjects, the jurisdiction of which was confided to and vested in the general government, acting directly upon the people. " We the people," are the authors and constituents ; and " in order to form a more perfect union " was the declared purpo.se of the constitution of a general government. It was a boH, wise, and successful attempt to place the people under two distinct CHAP. III.] M'CULLOCH V. STATE OF MARYLAND ET AL. 271 M'CULLOCH V. THE STATE OF MARYLAND et al. Supreme Court of the United States. 1819.' [4 Wheat. 316; 4 Curtis's Decisions, 415.] ' Error to the Court of Appeals of the State of Maryland. This was an action of debt, brought by the defendant in error, John James, who sued as well for himself as for the State of Maryland, in the County Court of Baltimore County, in the said State, against the plaintiff in error, M'Culloch, to recover certain penalties under the Act of the Legislature of Maryland, hereafter mentioned. Judgment being rendered against the plaintiff in error, upon the following statement of facts, agreed and submitted to the court by the parties, was affirmed by the Court of Appeals of the State of Maryland, the highest court of law of said State, and the cause was brought, by writ of error, to this court. In April, 1816, the Bank of the United States was incorporated by an Act of Congress, and in 1817 a branch of this banli was established governments, each sovereign and independent within its own sphere of action, and dividing the jurisdiction between them, not by territorial limits, and not by the rela- tion of superior and subordinate, bat classifying the subjects of government and designating those over which each has entire and independent jurisdiction. This object the Constitution of the United States proposed to accomplish by a specific enumeration of those subjects of general concern, in which all have a general interest, and to the defence and protection of which the undivided force of all the States could be brought promptly and directly to bear. Some of these \#i-e our relations with foreign powers — war and peace, treaties, foreign commerce and commerce amongst the several States, with others specifically enumerated; leaving to the several States their full jurisdiction over rights of person and property, and, in fact, over all other subjects of legislation, not thus vested in the general government. All powers of government, therefore, legislative, executive and judicial, necessary to the full and entire administration of government over these enumerated subjects, and all powers necessarily incident thereto, are vested in the general government ; and all other powers, expressly as well as by implication, are reserved to the States. This bripf and comprehensive view of the nature and character of the government of the United States, we think, is not inappropriate to this discussion, because it fol- lows as a necessary consequence that, so far as the government of the United States has jurisdiction over any subject, and acts thereon within the scope of its authority, it must necessarily be paramount, and must render nugatory all legislation by any State, which is repugnant to and inconsistent with it. There may perhaps in some few cases be a concurrent jurisdiction, as in case of direct taxation of the same person and property ; but until It shall practically extend to a case where there may be an actual interference, by seizing tlie same property at the same time, the exercise of the powers by the one is not, in its nectssary effect, exclusive of the exercise of a like power by the other ; but in such case they are not repugnant. That one must be so paramount, to prevent constant collision, is obvious ; and, accordingly, the Constitu- tion expressly provides that the Constitution and all laws and treaties, made in pur- suance of its authority, shall be the supreme law of the land. — Opinion of/he Justices, 14 Gray, 615-617. Compare Waite, C.J. (for the court), in U.S. v. Cruikshank et al., 92 U. S. 549-531. 1 The statement of facts is shortened. — Ed. 272 m'culloch v. state of Maryland et al. [chap. m. at Baltimore in Maryland. In 1818, the Legislature of Marjland passed an Act to tax " all banks or branches thereof in the State of Maryland, not chartered by the legislature," by requiring that notes issued by them should be upon stamped paper. M'CuUoch, the cashier, had violated this Act, by issuing notes upon unstamped paper. The facts were agreed. The question submitted to the court for their decision in this case, is as to the validity of the said Act of the General Assembly of Mar^-- land, on the ground of its being repugnant to the Constitution of the United States, and the Act of Congress afwresaid, or to one of them. Upon the foregoing statement of facts, and the pleadings in this cause (all errors in which are hereby agreed to be mutually releas,ed), if the court should be of opinion that the plaintiffs are entitled to recover, then judgment, it is agreed, shall be entered for the plaintiffs, for twenty-five hundred dollars, and costs of suit. But if the court should be of opinion that the plaintiffs are not entitled to recover upon the statement and pleadings aforesaid, then judgment oi non pros shall be entered, with costs, to the defendant. It is agreed that either partj- may appeal from the decision of the County Court to the Court of Appeals, and from the decision of the Court of Appeals to the Supreme Court of the United States, according to the modes and usages of law, and have the same benefit of this statement of facts, in the same manner as could be had if a jury had been sworn and impanelled in this cause, and a special verdict had been found, or these facts had appeared and been stated in an excep- tion taken to the opinion of the court, and the court's direction to the jury thereon. . . . 'Wsk^ter and Pinkne^, for the plaintiff in error. HopJcinson, Jones, and Martin, for the defendant. The Attorney-General was also heard for the plaintiff, by reason of the interest of the United States. Marshall, C. J., delivered the opinion of the court. In the case now to be determined, the defendant, a sovereign State, denies the obligation of a, law enacted by the legislature of the Union ; and the plaintiff, on his part, contests the validity of an Act which has been passed by the legislature of that State. The Constitution of our country, in its most interesting and vital parts, is to be considered ; the conflicting powers of the government of the Union and of its members, as marked in that Constitution, are to be discussed ; and an opinion given, which may essentiallj- influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility- involved in its decision. But it must be decided peacefully, or remain a source of hostile legislation, perhaps of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the Supreme Court of the United States has the Constitu- tion of our country devolved this important duty. CHAP. III.} m'CULLOCH V. STATE OF MARYLAND ET AL. 273 The first question made in the caase is, has Congress power to incorporate a bank? It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a Tery early period of our history, has been recognized by rnan^' successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation. It will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the deci- sion of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted, if not put at rest by the practice of the government, ought to receive a considerable impression from that prac- tice. An exposition of the Constitution, deliberatelj- established by legislative Acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded. The power now contested was exercised by the first Congress elected under the present Constitution. The bill for incorporating the Bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first in the fair and open field of debate, and afterwards in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law. The original Act was permitted to expire ; but a short experience of the embarrass- ments to which the refusal to revive it exposed the government, con- vinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law. It would re- quire no ordinary share of intrepidity to assert, that a measure adopted under these circumstances, was a bold and plain usurpation, to which the Constitution gave no countenance. These observations belong to the cause ; but they are not made under the impression that, were the question entirely new, the law would be found irreconcilable with the Constitution. In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the Con- stitution, to consider that instrument not as emanating from the peoplef' but as the act of sovereign and independent States. The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordina-^ tion to the States, who alone possess supreme dominion. It would be difficult to sustain this proposition. The convention which framed the Constitution was, indeed, elected by the State legis- \0L. I. — 18 274 m'culloch v. state of Maryland et al. [chap, hi. latures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might " be submitted to a convention of delegates, chosen in each State, by the people thereof, under the recommendation of its legisla- ture, for their assent and ratification." This mode of proceeding was adopted ; and by the convention, by Congress, and by the State legis- latures, the instrument was submitted to the people. They acted upon it, in the only manner in which they can act safelj', effectively, and wisely, on such a subject, b^' assembling in convention. It is true, they assembled in their several States ; and where else should they have assembled ? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of com- pounding the American people into one common mass. Of consequence, when they act, tliej- act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people them- selves, or become the measures of the State governments. From these conventions the Constitution derives its whole authorit}'. The government proceeds directlj' from the people ; is " ordained and established " in the name of the people ; and is declared to be ordained, *' in order to form a more perfect union, establish justice, insure domestic tranquillit}', and secure the blessings of libert}' to themselves and to their posterity." The assent of the States, in their sovereign capacity, is impUed in calling a convention, and thiis submitting that instrument to the people. But the people were at perfect liberty to accept or reject it ; and their act was final. It required not the affirmance, and could not be negatived, by the State governments. The Constitution, when thus adopted, was of complete obligation, and bound the State sover- eignties. It has been said, that the people had alreadj- surrendered all their powers to the State sovereignties, and had nothing more to give. But, surely, the question whether thej' may resume and modifj- the powers granted to go^'ernment, does not remain to be settled in this countr}-. Much more might the legitimacy of the general government be doubted, had it been created hy the States. The powers delegated to the State sovereignties were to be exercised bj' themselves, not bj- a distinct and independent sovereignty, created by themselves. To the formation of a league, such as was tlie Confederation, the State sovereignties were certainly competent. But when, " in order to form a more perfect union," it was deemed necessary to change this alliance into an effec- tive government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then (whatever may be the influence of this fact on the case), is emphatically and truly a government of the people. In form and in substance it emanates from them, its powers CHAP, m.] M'CULLOCH v. state of MARYLAND ET AL. 275 are granted by them, and are to be exercised directly on them, and for their benefit. This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now univer- sally admitted. But tlie question respecting the extent of the powei-s actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist. In discussing these questions, the conflicting powers of the general and State governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled. If anv one proposition could command the universal assent of man- kind, we might expect it would be this : that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all ; its powers are delegated by all ; it represents all, and acts for all. Though any one State maj- be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason : the people have, in express terms, decided it, by saying, " this Constitu- tion, and the laws of the United States, which shall be made in pursu- ance thereof," " shall be the supreme law of the land," and by requir- ing that the members of the State legislatures, and the officers of the executive and judicial departments of tlie States, shall take the oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme ; and its laws, when made in pursuance of the Con- stitution, form the supreme law of the land, "anything in the Consti- tution or laws of any State, to the contrary notwithstanding." Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes inciden- tal or implied powers ; and which requires that everything granted shall be expressly and minutely described. Even the 10th Amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word " expressly," and declares only that the powers "not delegated to the United States, nor pro- hibited to the States, are reserved to the States or to the people ; " thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one govern- ment, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amend- ment, had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to 276 m'culloch v. state of Maryland et al. [chap. hi. avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution, is not onh- to be inferred from the nature of the insti'ument, but from the language. Why else were some of the limitations, found in the 9th section of the 1st article, introduced? It is also, in some degree, warranted b^' their having omitted to use any restrictive terra which might prevent its receiving a fair and just inter- pretation. In considering this question, then, we must never forget, that it is a constitution we are expounding. Although, among the enumerated powers of government, we do not find the word " bank," or " incorporation," we find the great powers to lay , and collect taxes ; to borrow money ; to regulate commerce ; to declare and conduct a war ; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industrj- of the nation, are intrusted to its government. It can never be pretended that these vast powers draw after them others of inferixar importance, merelj- because thej- are inferior. Such an idea can never be advanced. But it may, with great reason, be contended, that a government, intrusted with such ample powers, on the due exe- cution of wliich the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution b}' with- holding the most appi-opriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to' the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation maj' require, that the treasure raised in the North should be transported to the South, that raised in the East conveyed to the West, or that this order should be reversed. Is that construction of the Constitution to be preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction (unless the words imperiously require it) which would impute to the framers of that instrument, when grant- ing these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the Constitution, we have only to obej- ; but that instrument does not profess to enumerate the means by which the powers it con- fers may be executed ; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of CHAP. III.J M'CULLOCH V. STATE OF MARYLAND ET AL. 277 those powers. It is, then, the subject of fair inqiiiiy, how far such means may be employed. It is not denied, that the powers given to the government imply the ordiiiarj- means of execution. That, for example, of raising revenue, and applying it to national purposes, is admitted to imply the power of conveying money from place to place, as the exigencies of the nation may require, and of employing the usual means of convej'ance. But it is denied that the government has its choice of means ; or, that it may employ the most convenient means, if, to employ them, it be necessary to erect a corporation. On what foundation does this argument rest? On this alone: The power of creating a corporation, is one appertaining to sovereignty, and is not expressly conferred on Congress. This is true. But all legisla- tive powers appertain to sovereigntj'. The original power of giving the law on any subject whatever, is a sovereign power ; and if the govern- ment of the Union is restrained from creating a corporation, as a means for performing its functions, on the single reason that the creation of a corporation is an act of sovereignty ; if the sufficiency of this reason be acknowledged, there would be some difficulty in sustaining the author- ity of Congress to pass other laws for the accomplishment of the same objects. The government which has a right to do an act, and has imposed on it the dut}- of performing that act, must, according to the dictates of reason, be allowed to select the means ; and those who contend that it maj- not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception. The creation of a corporation, it is said, appertains to sovereignty. This is admitted. But to what portion of sovereignty does it appertain ? Does it belong to one more than to another? In Anierica, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects com- mitted to the other. We cannot comprehend that train of reasonincr which would maintain, that the extent of power granted by the people is to be ascertained, not by the nature and terms of the grant, but by its date. Some State constitutions were formed before, some since that of the United States. We cannot believe that their relation to each other is in any degree dependent upon this circumstance. Their respective powers must, we think, be precisely the same as if they had been formed at the same time. Had they been formed at the same time, and had the people conferred on the general government the power contained in the Constitution, and on the States the whole residuum of power, would it have been asserted that the government of the Union was not sovereign with respect to those objects which were intrusted to it, in relation to which its laws were declared to be supreme ? If this could not have been asserted, we cannot well comprehend the 278 m'culloch v. state of Maryland et al. [chap. hi. process of reasoning which maintains, that a power appertaining to sovereignty cannot be connected with that vast portion of it which is granted to tlie general government, so far as it is calculated to subserve the legitimate objects of that government. The power of creating a corporation, though appertaining to sovereigntj', is not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as inci- dental to other powers, or used as a means of executing them. It is never the end for which other powers ai-e exercised, but a means by which other objects are accomphshed. Na contributions are made to charity for the sake of an incorporation, but a corporation is created to administer the charity ; no seminary of learning is instituted in order to be incorporated, but the corporate character is conferred to subserve tlie purposes of education. No citj' was ever built with the sole object of being incorporated, but is incorporated as affording the best means of being well governed. The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is, therefore, perceived, why it ma^- not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them. But the Constitution of the United States has not left the right of Congress to emploj- the necessary means, for the execution of the powers conferred on Uie government, to general reasoning. To its enumera- tion of powers is added that of making " all laws which shall be neces- sary and proper, for carrying into execution the foregoing powers, and all other powers vested by this Constitution, ii) the government of the United States, or in an3- department thereof." The counsel for the State of Maryland have urged various arguments, to prove that this clause, though in terms a grant of power, is not so in effect ; but is really restrictive of the general right, which might otherwise be implied, of selecting means for executing the enumer- ated powers. In support of this proposition, they have found it necessarj' to con- tend, that this clause was inserted for the purpose of conferring on Congress the power of making laws. That, without it, doubts might be entertained, whether Congress could exercise its powers in the form of legislation. But could this be the object for which it was inserted? A govern- ment is created by the people, having legislative, executive, and judi- cial powers. Its legislative powers are vested in a Congress, which is to consist of a Senate and House of Representatives. Each House may determine the rule of its proceedings ; and it is declared that e\er3' bill which shall have passed both Houses, shall, before it becomes a law, be presented to the President of the United States. The 7th section describes the course of proceedings, by which a bill shall become a law : and, then, the 8th section enumerates the powers of Congress. Could it be necessar3- to say, that a legislature should exercise legisla- CHAP. III.] M'CULLOCH V. STATE OF MAUYLAND ET AL. 279 tive powers, in the shape of legislation? After allowing each House to prescribe its own course of proceeding, after describing the manner in which a bill should become a law, would it have entered into the mind of a single member of the convention, that an express power to make laws was necessar\' to enable the legislature to make them? That a legislature, endowed with legislative powers, can legislate, is a jDroposi- tion too self-evident to have been questioned. But the argument on which most reliance is placed, is drawn from the peculiar language of this clause. Congress is not empowered bj' it to make all laws, which may have relation to the powers conferred on the government, but such onlj- as maj* be "necessary' and proper" for carrying them into execution. The word "necessary" is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means, and leaves to Congress, in each case, that only which is most direct and simple. Is it true, that this is the sense in which the word " necessary " is always used? Does it alwaj's import an absolute phj-sical necessitj', so strong, that one thing, to which another maj- be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To emploj' the means necessarj- to an end, is generall}- understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entire!}- unattainable. Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea ; and nothing is more common than to use words in a figurative sense. Almost all compositions con- tain words, which, taken in their rigorous sense, would convey a mean- ing different from that which is obviously intended. It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense — in that sense which common usage justifies. The word " necessary" is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison ; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessarj-, absolutely or indispensably necessary. To no mind would the same idea be conveyed, by these several phrases. This comment on the word is well illustrated, by the passage cited at the Bar, from the 10th section of the 1st article of the Constitution. It is, we think, impossible to compare the sentence which prohibits a State from laying " imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws," with that which authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution " 280 m'cullooh v. state of Maryland et al. [chap. hi. the powers of the general government, without feeling a conviction that the convention understood itself to change materially the meaning of the word "necessary" by prefixing the word "absolutely." This word, then, like others, is used in various senses ; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view. Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done oy confining the choice of means to such narrow limits as not to leave it in the power of Con- gress to adopt any which might be appropriate, and which were con- ducive to the end. This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human aflEairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as thej- occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances. If we applj- this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compfilled to discard it. The powers vested in Congress may certainly be carried into execution, without prescrib- ing an oath of office. The power to exact this security for the faith- ful performance of duty, is not given, nor is it indispensably necessary. The different departments may be established ; taxes m&y be imposed and collected ; armies and navies may be raised and maintained ; and money may he borrowed, without requiring an oath of office. It might be argued, with as much plausibility as other incidental powers have been assailed, that the convention was not unmindful of this subject. The oath which might be exacted — that of fidelitj- to the Constitution — is prescribed, and no other can be required. Yet, he would be charged with insanity who should contend, that the legislature might not superadd to the oath directed by the Constitution, such other oath of office as its wisdom might suggest. So, with respect to the whole penal code of the United States. Whence arises the power to punish in cases not prescribed by the Con- stitution? All admit that the government may, legitimatelj-, punish any violation of its laws ; and yet, this is not among the enumerated powers of Congress. The right to enforce the observance of law, hy punishing its infraction, might be denied with the more plausibilitj", CHAP. III.] M'CULLOCH V. STATE OF MARYLAND ET AL. 281 because it is expressly given in some cases. Congress is empowered " to provide for tlie punishment of counterfeiting the securities and current coin of the United States," and " to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." The several powers of Congress maj- exist, in a very im- perfect state to be sure, but they may exist and be carried into execu- tion, although no punishment should be inflicted in cases where the right to punish is not expressly given. Take, for example, the power " to establish post-offices and post- roads.'' This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrjing the mail along the post-road, from one post-office to another. And, from this implied power, has again been inferred the right to punish those who steal letters from the post-office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post-office and post-road. This right is, indeed, essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offences is certainly conducive to the due ad- ministration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment. The baneful influence of this narrow construction on all the opera- tions of the government, and the absolute impracticability of main- taining it without rendering the government incompetent to its great objects, naight be illustrated by numerous examples drawn from the Constitution, and from our laws. The good sense of the public has pronounced, without hesitation, that the power of punishment apper- tains to sovereigntj-, and may be exercised whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for. carrying into execution all sovereign powers, and may be used, although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise. If this limited construction of the word "necessary" must be aban- doned in order to punish, whence is derived the rule which would reinstate it, when the government would carry its powers into execution by means not vindictive in their nature? If the word "necessary" means "needful," "requisite," " essential," " conducive to," in order to let in the power of punishment for the infraction of law, why is it not equally comprehensive when required to authorize the use of means which facilitate the execution of the powers of government without the infliction of punishment ? In ascertaining the sense in which the word " necessary" is used in this clause of the Constitution, we may derive some aid from that with which it is associated. Congress shall have power " to make all laws which shall be necessary and proper to carry into execution " the pow- 282 m'culloch v! state of Maryland et al. [chap. hi. ers of the government. If the word "necessar3'" was used in that strict and rigorous sense for which the counsel for the State of Marj-- land contend, it would be an extraordinarj' departure from the usual course of the human mind, as exhibited in composition, to add a word, the only possible effect of which is to qualify that strict and rigorous meaning ; to present to the mind the idea of some choice of means of legislation not straitened and compressed within the narrow limits for which gentlemen contend. But the argument which most conclusively demonstrates the error of the construction contended for hy the couneel for the State of Mary- land, is founded ou the intention of the convention, as manifested in the whole clause. To waste time and argument in proving that, without it, Congress might carrj- its powers into execution, would be not much less idle than to hold a lighted taper to the sun. As little can it be required to prove, that in the absence of this clause, Congress would have some choice of means. That it might employ* tliose which, in its judgment, would most advantageously effect the object to be accom- plished. That anj- means adapted to the end, any means which tended directly to the execution of the constitutional powers of the government, were in themselves constitutional. This clause, as construed bj* the State of Maryland, would abridge and almost annihilate this useful and necessary right of the legislature to select its means. That this could not be intended, is, we should think, had it not been already contro- verted, too apparent for controversy. We think so for the following reasons : — 1. The clause is placed among the powers of Congress, not among the limitations on those powers. 2. Its terms purport to enlarge, not to diminisli the powers vested in the government. It purports to-be an additional power, not a restriction on those alread}- granted. No reason has been or can be assigned, for thus concealing an intention to narrow the discretion of the national legislature, under words which purport to enlarge it. The framers of the Constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness. Had they been capable of using language which would conve}' to the eye one idea, and after deep reflection, impress on the mind another, Vaey would rather have disguised the grant of power, than its limitation. If then, their intention had been, by this clause, to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place, and would have been expressed in terms resembling these: "In carrj'ing into execution the foregoing powers, and all others," &c., " no laws shall be passed but such as are necessarj- and proper." Had the intention been to make this clause restrictive, it would unquestionablj' have been so in form as well as in effect. The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed CHAP. III.] M'CULLOCH V. STATE OF MARYLAND ET AL. 283 to restrain the powers of Congress, or to impair the right of the legis- lature to exercise its best judgment in the selection of measures, to carrj- into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the riglit to legislate on that vast mass of incidental powers which must be involved in the Constitution, if that instrument be not a splendid bawble. We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the pow- ers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. That a corporation must be considered as a means not less usual, not of higher dignity, not more requiring a particular specification than other means, has been sufficiently proved. If we look to the origin of cor- porations, to the manner in which they have been framed in that gov- ernment, from which we have derived most of our legal principles and ideas, or to the uses to which they have been applied, we find no reason to suppose that a constitution, omitting, and wisely omitting, to enu- merate all the means for carrying into execution the great powers vested in government, ought to have specified this. Had it been in- tended to grant this power as one which should be distinct and inde- pendent, to be exercised in any case whatever, it would have found a place among the enumerated powers of the government. But being considered merely as a means, to be employed only for the purpose of carrying into execution the given powers, there could be no motive for particularly mentioning it. The propriety of this remark would seem to be generally acknowl- edged by the universal acquiescence in the construction which has been uniforrbly put on the 3d section of the 4th article of the Constitution. The power to " make all needful rules and regulations respecting the territory or other property belonging to the United States," is not more comprehensive, than the power " to make all laws which shall be neces- sary and proper for carrying into execution " the powers of the govern- ment. Yet all admit the constitutionality of a territorial government, which is a corporate bod^'. • If a corporation may be emploj-ed indiscriminately with other means to carry into execution the powers of the government, no particular reason can be assigned for excluding the use of a bank, if required for its fiscal operations. To use one, must be within the discretion of Congress, if it be an appropriate mode of executing the powers of gov- ernment. That it is a convenient, a useful, and essential instrument in 284 m'culloch v. state of Maryland et al. [chap, iil the prosecution of its fiscal operations, is not now a subject of contro- versj'. All those who have been concerned in the administration of our finances, have concurred in representing its importance and neces- sity ; and so strongly have they been felt, that statesmen of the first class, whose previous opinions against it had been confirmed b}- every circumstance which can fix the human judgment, have yielded those opinions to the exigencies of the nation. Under the confederation, Congress justifying the measure by its necessity, transcended, perhaps, its powers to obtain the advantage of a bank ; and our own legislation attests the universal conviction of the utility of this measure. The time has passed away when it can be necessary to enter into anj- discussion in order to prove the importance of this instrument, as a means to effect the legitimate objects of the government. But were its necessity less apparent, none can deny its being an ap- propriate measure ; and if it is, the degree of its necessity, as has been verj' justly observed, is to be discussed in another place. Should Con- gress, in the execution of its powers, adopt measures which are pro- hibited by the Constitution : or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an Act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects in- trusted to the government, to undertake here to inquire into the degree of its necessit}-, would be to pass the line which circumscribes the judi- cial department, and to tread on legislative ground. This court dis- claims all pretensions to such a power. After this declaration, it can scarcely be necessary to say, that the existence of State banks can have no possible mfluence on the ques- tion. No trace is to be found in the Constitution of an intention to create a dependence of the government of the Union on those of the States, for the execution of the great powers assigned to it. Its means are adequate to its ends ; and on those means alone was it expected to rel}- for the accomplishment of its ends. To impose on it the necessity of resorting to means which it cannot control, which another government may furnish or witlihold, would render its course precarious, the result of its measures uncertain, and create a dependence on other govern- ments, which might disappoint its most important designs, and is incom- patible with tlie language of the Constitution. But were it otherwise, the choice of means implies a right to choose a national bank in prefer- ence to State banks, and Congress alone can make the election. After the most deliberate consideration, it is the unanimous and decided opinion of this court, that the Act to incorporate the Bank of the United States is a law made in pursuance of the Constitution, and is a part of the supreme law of the land. The branches, proceeding from the same stock, and being conduci^'e to the complete accomplishment of the object, are equally constitutional. It CEAP. m.] COHENS V. VIRGINIA, 285 would have been unwise to locate them in the charter, and it would be un- necessarily inconvenient to employ the legislative power in making those subordinate arrangements. The great duties of the bank are prescribed ; those duties require branches, and the bank itself may, we think, be safely trusted with the selection of places where those branches shall be fixed ; reserving always to the government the right to require that a branch shall be located where it may be deemed necessary. It being the opinion of the court that the act incorporating the bank is constitutional j" and that the power of establishing a branch in the State of Maryland might be properl}' exercised by the bank itself, we proceed to inquire : — 2. Whether the State of Maryland may, without violating the Con- stitution, tax that branch ? . . . We are unanimously of opinion, that the law passed by the Legisla- ture of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void. . . . COHENS V. THE STATE OF VIRGINIA. Supreme Court of the United States. 1821. [6 Wheat. 264 ; 5 Curtis' s Decisions, 82.] Barbour and Smyth, for defendant in error; B. B. Ogden and Pinkney, contra. Marshall, C. J., delivered the opinion of the court. This is a writ of error to a judgment rendered in the Court of Hus- tings, for the borough of Norfolk, on an information for selling lottery tickets, contrary to an Act of the Legislature of Virginia. In the State court, the defendant claimed the protection of an Act of Congress. A case was agreed between the parties, whicii states the Act of Assembly on which the prosecution was founded, and the Act of Congress on which the defendant relied, and concludes in these words: " If upon this case the court shall be of opinion that the Acts of Congress before mentioned were valid, and, on the true construction of those Acts, the lottery tickets sold by the defendants as aforesaid, might lawfully be sold within the State of Virginia, notwithstanding the Act or statute of the General Assembly of Virginia prohibiting such sale, then judg- ment to be entered for the defendants. And if the court should be of opinion that the statute or Act of the General Assembly of the State of Virginia, prohibiting such sale, is valid, notwithstanding the said Acts of Congress, then judgment to be entered that the defendants are guiltv, and that the Commonwealth recover against them one hundred dolhirs and costs.'' 286 COHENS V. VIRGINIA. [CHAP. III. Judgment was rendered against the defendants ; and the court in ■which it was rendered being the highest court of the State in which the cause was cognizable, the record has been brought into this court by writ of error. The defendant in error moves to dismiss this writ, for want of jurisdiction. In support of this motion, three points liave been made, and argued with the ability- which the importance of the question merits. These points are : — 1 . That a State is a defendant. ^ 2. That no writ of error lies from this court to a State court. 3. The third point has been presented in different forms by the gen- tlemen who have argued it. The counsel who opened the cause said that the want of jurisdiction was shown by the subject-matter of the case. The counsel who followed him said that jurisdiction was not given by the Judiciary' Act. The court has bestowed all its attention on the ar- guments of both gentlemen, and supposes that their tendency is to sliow that this court has no jurisdiction of the case, or, in other words, has no right to review the judgment of the State court, because neither the Constitution nor any law of the United States has been violated by that judgment. The questions presented to the court bj' the first two points made at the Bar are of great magnitude, and may be truly said vitally- to affect the Union. They exclude the inquiry whether the Constitution and laws of the United States have been violated by the judgment whicli the plaintiffs in error seek to review ; and maintain that, admitting such violation, it is not in tlie power of the government to apply a corrective. They maintain that the nation does not possess a department capable of restraining peaceably, and by authority of law, an3' attempts which may be made, by a part, against the legitimate powers of the whole ; and that the government is reduced to the alternative of submitting to such attempts, or of resisting them bj' force. They maintain that the Constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation ; but that this power may be exercised in the last resort by the courts of every State in the Union. Tliat the Constitution, laws, and treaties, maj' re- ceive as many constructions as there are States ; and that this is not a mischief, or, if a mischief, is irremediable. These abstract proposi- tions are to be determined ; for he who demands decision without per- mitting inquirj-, affirms that the decision he asks does not depend on inquiry. If such be the Constitution, it is the dutj' of the court to bow with respectful submission to its provisions. If such be not the Constitu- tion, it is equally the dutj- of this court to say so ; and to perform that task which the American people have assigned to the. judicial department. 1. The first question to be considered is, whether the jurisdiction of CHAP. III.] COHENS V. VIRGINIA. 287 this court is excluded bj- the character of the parties, one of them being a State, and the other a citizen of that State? The second section of tlie third article of the Constitution defines the extent of the judicial power of the United States. Jurisdiction is given to the courts of the Union in two classes of cases. In the first, their jurisdiction depends on the character of tlie cause, whoever maj- be the parties. This class compreliends " all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." This clause extends the jurisdiction of the court to all the cases described, without making in its terms any exception whatever, and without an^' regard to the condition of the party. If there be any exception, it is to be im- plied against the express words of the article. In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended " controvei'sies between two or more States, between a State and citizens of another State," " and between a State and foreign States, citizens, or subjects." If these be the parties, it is entirely unimportant what may be the subject of con- troversy. Be it what it may, these parties have a constitutional right to come into tlie courts of the Union. . The counsel for the defendant in error have stated that the cases which arise under the Constitution must grow out of those provisions which are capal)le of self-execution ; examples of which are to be found in the second section of the fourth article, and in the tenth section of the first article. A case which arises under a law of the United States must, we are likewise told, be a right given by some Act which becomes necessary to execute the powers given in the Constitution, of which the law of natu- ralization is mentioned as an example. The use intended to be made of this exposition of the first part of the section, defining thft extent of tlie judicial power, is not clearly under- stood. If ihe intention be merely to distinguish cases arising under the Constitution, from those arising under a law, for the sake of precision in the application of this argument, these propositions will not be con- troverted. If it be to maintain that a case arising under the Constitu- tion, or a law, must be one iij which a party comes into court to demand something conferred on him by the Constitution or a law, we think the construction too narrow. A case in law or equity- consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its cor- rect decision depends on the construction of either. Congress seems to have intended to give its own construction of this part of the Consti- tution, in the twenty-fifth section of the Judiciary Act ; and we perceive no reason to depart from that construction. The jurisdiction of the court, then, being extended by the letter of the Constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of 288 COHENS V. VIRGINIA. [CHAP. III. this description from that jurisdiction, must sustain the exemption they claim on the spirit and true meaning of the Constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have emploj-ed. The counsel for tlie defendant in prror have undertaken to do this ; and have laid down the general proposition, that a sovereign indepen- dent State is not suable, except b^- its own consent. This geneial proposition will not be controverted. But its consent is not requisite iu each particular case. It maj- be given in a general law. And if a State has surrendered any^jortion of its sovereigntj', the question wliether a liabilit}' to suit be a part of this portion, depends on the instrument b3- which the surrender is made. If upon a just con- struction of that instrument, it shall appear that the State has sub- mitted to be sued, then it has parted with this sovereign right of judging in every case on the justice of its own pretensions, and has intrusted that power to a tribunal in whose impartiality it confides. The American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their hap- piness. Thej- have been taught b}- experience, that tliis Union cannot exist without a government for the whole ; and they have been taught bj- the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignt}- which belongs to independent States. Under the influence of this opinion, and thus insti'ucted b}- experience, the Ameri- can people, in the conventions of their respective States, adopted the present Constitution. If it could be doubted whether, from its nature, it were not supreme in all cases where it is empowered to act, that doubt would be removed by the declaration that " this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the judges in ever}' St£tte shall be bound therebj', anything in the Constitution or laws of anj' State to the contrary notwithstanding." This is the authoritative language of the American people ; and, if gentlemen please, of the American Statee. It marks with lines too strong to be mistaken, the characteristic distinction between the gov- ernment of tlie Union and those of the States. The general government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the Constitution ; and if there be any who deny its necessitv, none can denj- its authoritj-. To this supreme government ample powers are confided ; and if it were possible to doubt the great purposes for which thej' were so con- fided, the people of the United States have declared that they are given " in order to form a more perfect union, establish justice, insure do- mestic tranquillitj', provide for the common defence, promote the gen- eral welfare, and secure the blessings of liberty to themselves and their posterity." qHAP. III.] COHENS V. VIRGINIA. 289 With the ample powers confided to this supreme government, for these interesting purposes, are connected many express and important limitations on the sovereigntj' of the States, which are made for the same purposes. The powers of the Union on the great subjects of war, peace, and commerce, and on many others, are in themselves limitations of the sovereignty of the States ; but in addition to these, the sovereignt3' of the States is surrendered in many instances where the surrender can only operate to tlie benefit of the people, and where, perhaps, no other power is conferred on Congress than a conservative power to maintain the principles established in the Constitution. The maintenance of these principles in their purity is certainly among the great duties of the government. One of the instruments by which this duty may be peaceably performed is the judicial department. It is authorized to decide all cases, of every description, arising under the Constitution or laws of the United States. From this general grant of jurisdiction, no exception is made of those cases in which a State ma^- be a party. When we consider the situation of the government of the Union and of a State, in relation to each other; the nature of our Constitution, the subordination of the State governments to that Constitution ; the great purpose for which jurisdiction over all cases arising under the Constitu- tion and laws of the United States, is confided to the judicial depart- ment, are we at liberty to insert in this general giant, an exception of those cases in which a State may be a party? Will the spirit of the Constitution justify this attempt to control its words ? We think it will not. We think a case arising under the Constitution or laws of the United States, is cognizable in the courts of the Union, whoever maj- be the parties to that case. ... We think, then, that as the Constitution originally stood, the appel- late jurisdiction of this court, in all cases arising under the Constitution, laws, or treaties of the United States, was not arrested hy the circum- stance that a State was a part}-. This leads to a consideration of the Eleventh Amendment. It is in these words : " The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign State." It is a part of our history, that, at the adoption of the Constitution, all the States were greatly indebted ; and the apprehension that these debts might be prosecuted in the Federal courts, formed a very serious objection to that instrument. Suits were instituted ; and the court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was proposed in Congress, and adopted by the State legislatures. That its motive was not to maintain the sovereignty of a State from the degra- dation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more States, or be- VOL. I. — 19 290 COHENS V. VIUGINIA. [CHAP. IH tween a State and a foreign State. The jurisdiction of the court still extends to these cases ; and in these a State may still be sued. We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prose- cuting one which might be commenced before the adoption of the amend- ment, were persons who might probablj- be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the juris- diction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those bi-ouglit by States. The first impression made on the mind b}' this amendment is, that it was intended for those cases, and for those only, in which some de- mand against a State is made by an individual in the courts of the Union. If we consider the causes to which it is to be traced, we are conducted to the same conclusion. A general interest might well be felt in leaving to a State the. full power of consulting its convenience in the adjustment of its debts, or of other claims upon it; but no in- tei'est could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its courts, the Constitution and laws from active viola- tion. . . , Where, then, a State obtains a judgment against an individual, and the court rendering such judgment overrules a defence set up under the Constitution or laws of the United States, the transfer of this record into the Supreme Court for the sole purpose of inquiring whether the judgment violates the Constitution of the United States, can, with no propriety, we think, be denominated a suit commenced or prosecuted against the State whose judgment is so far re-examined. Nothing 'is demanded from the State. No claim against it of any description is asserted or prosecuted. The party is not to be restored to the posses- sion of anything. . . He only asserts the constitutional right to have his defence examined by that tribunal whose province it is to construe the Constitution and laws of the Union. . . . The point of view in which this writ of error, with its citation, has been considered uniformly in the courts of the Union, has been well illustrated by a reference to the course of this court in suits instituted by the United States. The universallj' received opinion is that no suit can be commenced or prosecuted against the United States ; that the Judiciary Act does not authorize such suits. Yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favor of the United States into a superior court. ... It has never been suggested that such writ of error was a suit against the United States, and, therefore, not within the jurisdiction of the appellate court. . . . 2. The second objection to the jurisdiction of the court is, that ite .appellate power cannot be exercised, in any case, over the judgment of a State court. CHAP. III.] COHENS V. VIEGINIA. 291 This objection is sustained cliieflj' by arguments drawn from tlie sup- posed total separation of the judiciary of a State from that of the Union, and their entire independence of each other. The argument considers the Federal judiciary as completely foreign to that of a State ; and as being no more connected with it, in anj' respect whatever, than the court of a foreign State. If this hypothesis be just, the argument founded on it is equally so ; but if the hypothesis be not supported by the Constitution, the argument fails with it. This hypothesis is not founded on any words in the Constitution, which might seem to countenance it, but on the unreasonableness of giving a contrary construction to words which seem to require it ; and on the incompatibility of the application of the appellate jurisdiction to the judgments of State courts, with that constitutional relation which subsists between the government of the Union and the governments of those States which compose it. Let this unreasonableness, this total inoorapatibiliti', be examined. That the United States form, for many, and for most important pur- poses, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regu- lations, we are one and the same people. In many other respects, the American people are one ; and the government which is alone capable of controlling and managing their interests, in all these respects, is the government of the Union. It is their government, and in that charac- ter they have no other. America has chosen to be, in man}- respects, and to many purposes, a nation ; and for all these purposes her govern- ment is complete ; to all these objects, it is competent. The people have declared, that in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimateh" con- trol all individuals or governments within the American territorj-. The Constitution and laws of a State, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. These States arc constituent parts of the United States. They are members of one great empire, — for some purposes sovereign, for some purposes subordinate. In a government so constituted, is it unreasonable that the judicial power should be competent to give eflSeacy to the constitutional laws of the legislature ? That department can decide on the validity of the Constitution or law of a State, if it be repugnant to the Constitution or to a law of the United States. Is it unreasonable that it should also be empowered to decide on the judgment of a St^te tribunal enforcing such unconstitutional law? Is it so very unreasonable as to furnish a justi- fication for controlling the wordj of the Constitution? We think it is not. We think that in a government acknowledgedly supreme, with respect to objects of vital interest to the nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme, so far as respects 'those objects, and so far as is necessary to their attcinment. 292 COHENS V. VIRGINIA. [CHAP. IIL The exercise of the appellate power over those judgments of the State tribunals which may contravene the Constitution or laws of the United States, is, we believe, essential to the attainment of those objects. The propi'iety of intrusting the construction of the Constitution, and laws made in pursuance thereof, to the judiciary of the Union, has not, we believe, as j-et, been drawn into question. It seems to be a corol- lary from this political axiom, that the Federal courts should either possess exclusive jurisdiction in such cases, or a power to revise the judgment rendered in them b}' the State tribunals. If the Federal and State courts have concurrent jurisdiction in- all cases arising under the Constitution, laws, and treaties of the United States ; and if a case of this description brought in a State court cannot be removed before judg- ment, nor revised after judgment, then the construction of the Consti- .tution, laws, and treaties of the United States is not confided particularly to their judicial department, but is confided equally to that department and to the State courts, however they ma^' be constituted. " Thirteen independent courts," saj's a ver\' celebrated statesmain (and we have now more than twenty such courts), " of final jurisdiction over the same causes, arising upon the same laws, is a hj'dra in government, from which nothing but contradiction and confusion can proceed." Dismissing the unpleasant- suggestion, that any motives which may not be fairly- avowed, or which ought not to exist, can ever influence a State or its courts, the necessity- of uniformitj', as well as correctness in expounding the Constitution and laws of the United States, would itself suggest the propriety of vesting in some single tribunal the power of deciding, in the last resort, all cases in which thej- are involved. We are not restrained, then, hy the political relations between the general and State governments, from construing tlie words of the Con- stitution, defining the judicial power, in their true sense. We areTiot bound to construe them more restrictively than thej- naturall}' import. They give to the Supreme Court appellate jurisdiction in all cases arising under the Constitution, laws, and treaties of the United States. The words are broad enough to comprehend all cases of this description, in whatever court they may be decided. . . . Motion denied. The cause was thereupon argued on the merits. D. B. Ogden, for the plaintiffs in error. Webster, contra. The Attorney- General, for the plaintiffs in error, in repl}'. [The judgment below was aflSrmed.] CHAP. III.] HANS V. LOUISIANA. 293 HANS V. LOUISIANA. Supreme Court ok the United States. 1889. [134 U. S. 1.] This was an action brQught in the Circuit Court of the United States, in December, 1884, against the State of Louisiana by Hans, a citizen of that State, to recover the amount of certain coupons annexed to bonds of the State, issued under the provisions of an Act of the Legis- lature approved January 24, 1874. . . . A citation being issued, directed to tlie State, and served upon the Governor thereof, the Attorney-General of the State filed an exception, of which the following is a copy, to wit : " Now comes defendant, by the Attorney- General, and excepts to plaintiff's suit on the ground that this court is without jurisdiction ratione personcsi Plaintiff cannot sue the State without its permission ; the Constitution and laws do not give this honorable court jurisdic- tion of a suit against the State, and its jurisdiction is respectfully declined. " Wherefore, respondent prays to be hence dismissed, with costs and for general relief.'' By the judgment of the court this exception was sustained, and the suit was dismissed. See JIans v. Louisiana, 24 Fed. Rep. 55. To this judgment the present writ of error was brought. Mr. J. D. House {Mr. William Grant was also on the brief) for plaintiff in error. Mr.. Walter H. Rogers, Attorney-General of the State of Louisiana, Mt. M. J. Cunningham, Mr. B. J. Sage, and Mr. Alexander Porter Morse, for defendant in error, submitted on their briefs. Mr. Justice Bradley, after stating the case as above, delivered the opinion of the court. The question is presented, whether a State can be sued in a Circuit Court of the United States by one of its own citizens upon a sugges- tion that the case is one that arises under the Constitution or laws of the United States. The ground taken is, that under the Constitution, as well as under the Act of Congress passed to carry it into effect, a case is within the jurisdiction of the Federal courts, without regard to the character of the parties, if it arises under the Constitution or laws of the United States, or, which is the same thing, if it necessarily involves a ques- tion under said Constitution or laws. The language relied on is that clause- of the 3d article of the Constitution, which declares that " the judicial power of the United States shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; " and the corresponding clause of the Act conferring jurisdiction upon 294 HANS V. LOUISIANA. [CHAP. III. the Circuit Court, wliich, as found in the Act of March 3, 1875, 18 Stat. .470, c. 137, § 1, is as follows, to wit: "That the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, . . . arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority." It is said that these jurisdictional clauses make no exception arising from the character of the parties, and, therefore, that a State can claim no exemption from suit, if the case is really one arising under the Constitution, laws^or treaties of the United States. It is conceded that where the jurisdiction depends alone upon the character of the parties, a controversy between a State and its own citizens is not embraced within it ; but it is contended that though jurisdiction does not exist on that ground, it nevertheless does exist if the case itself is one which necessarily involves a Federal question ; and with regard to ordinary parties this is undoubtedly true. The question now to be decided is, whether it is true where one of the parties is a State, and is sued as a defendant by one of its own citizens. That a State cannot be sued by a citizen of another State, or of a foreign State, on the mere ground that the case is one arising under the Constitution or laws of the United States, is clearly established by the decisions of this court in several recent cases. Louisiana v. Jumel, 107 U. S. 711; Hngood v. Southern, 117 U. S. 52; In re Ayers, 123 U. S. 443. Those were cases arising under the Consti- tution of the United States, upon laws complained of as impairing the obligation of contracts, one of which was the constitutional amend- ment of Louisiana complained of in the present case. Eelief was sought against State officers who professed to act in obedience to those laws. This court held that the suits were virtually against the States themselves and were consequently violative of the Eleventh Amend- ment of the Constitution, and could not be maintained. It was not denied that they presented cases arising under the Constitution ; but, notwithstanding that, they were held to be prohibited by the amend- ment referred to. In the present case the plaintiff in error contends that he, being a citizen of Louisiana, is not embarrassed by the obstacle of the Eleventh Amendment, inasmuch as that amendment only prohibits suits against a State which are brought by the citizens of another State, or by citi- zens or subjects of a foreign State. It is true, the amendment does so read: and if there were no other reason or ground for abating -his suit, it might be maintainable ; and then we should have this anoma- lous result, that in cases arising under the Constitution or laws of the United States, a State may be sued in the Federal courts by its own citizens, though it cannot be sued for a like cause of action by the citizens of other States, or of a foreign State ; and may be thus sued in the J'ederal courts, althougli not allowing itself to be sued in its CHAP. III.] HANS V. LOUISIANA. 295 own courts. If this is the necessary consequence of the language of the Constitution and the law, the result is no less startling and unex- jjected than was the original decision of this court, that under the language of the Constitution and of the Judiciary Act of 1789, a State was liable to be sued by a citizen of another State, or of a foreign country. That decision was made in the case of Chisholm v. Georgia, 2 Dall. 419, and created such a shock of surprise throughout the country that, at the first meeting of Congress thereafter, the Eleventh Amendment to the Constitution was almost unanimously pro- posed, and was in due course adopted 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 Supreme Court. It did not in terms pro- hibit 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 language of the amendment is that " the judicial power of the United States shall not be construed to ex- tend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign State." The Supreme Court had construed the judicial power as extending to such a suit, and its decision was thus overrulec^ The court itself so understood the effect of the amend- ment, for, after its adoption, Attorney-General Lee, in the case of HolUngsworth v. Virginia, 3 Dall. 378, submitted this question to the court, "whether the amendment did, or did not, supersede all'suits depending, as well as prevent the institution of new suits, against any one of the United States, by citizens of another State ? " Tilghraan and Rawle argued in the negative, contending that the jurisdiction of the court was unimpaired in relation to all suits instituted previously to the adoption of the amendment. But, on the succeeding day, the court delivered a unanimous opinion, " that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a State was sued by the citizens of another State, or by citizens or subjects of any foreign State." This view of the force and meaning of the amendment is important. It shows that, on this question of the suability of the States by indi- viduals, the highest authority of this country was in accord rather with the minority than with the majority of the court in the decision of the case of Chisholm v. Georgia; and this fact lends additional interest to the able opinion of Mr. Justice Iredell on that occasion. The other justices, were more swayed by a close observance of the letter of the Constitution, without regard to former experience and usage; and be- cause the letter said that the judicial power shall extend to controversies " between a State and citizens of another State ; " and " between a State and foreign States, citizens, or subjects," they felt constrained to see in this language a power to enable the individual citizens of one State, or of a foreign State, to sue another State of the Union in the 296 HANS V. LOUISIANA. [CHAP. III. Federal courts. Justice Iredell, on the contrary, contended that it was not the intention to create new and unheard of remedies, by sub- jecting sovereign States to actions at the suit of individuals (which he conclusively showed was never done before), but only, by proper legislation, to invest the Federal courts with jurisdiction to hear and determine controversies and cases, between the parties designated, that were properly susceptible of litigation in courts. Looking back from our present standpoint at the decision in CJiis- holm V. Georgia, we do not greatly wonder at the effect which it had upon the countrj'. Any such power as that fit authorizing the Federal judiciary to entertain suits by individuals against the States had been expressly disclaimed, and even resented, by the great defenders of the Constitution whilst it was on its trial before the American people.! As some of their utterances are directly pertinent to the question now under consideration, we deem it proper to quote them. The eighty-first number of the Federalist, written by Hamilton, has the following profound remarks : " It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prose- cute that State in the Federal courts for the amount of those securi- ties ; a suggestion which the following considerations prove to be without foundation : . " It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind ; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be re- peated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The con- tracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. They confer no right, of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State ; and to ascribe to the Federal courts by mere im- plication, and in destruction of a pre-existing right of the State gov- ernments, a power which would involve such a consequence, would be altogether forced and unwarrantable." The obnoxious clause to which Hamilton's argument was directed, CHAP. III.] HANS V. LOUISIANA. 29? and which was the ground of the objections which he so forcibly met, was that which declared that " the judicial power shall extend to all . . . controversies between a State and citizens of another State, . . . and between a State and foreign States, citizens, or subjects." It was argued by the opponents of the Constitution that this clause would authorize jurisdiction to be given to the Federal courts to enter- tain suits against a State, brought by the citizens of another State, or of a foreign State. Adhering to the mere letter, it might be so ; and so, in fact, the Supreme Court held in Chisholm v. Georgia ; but look- ing at the subject as Hamilton did, and as Mr. Justice Iredell did, in the light of history and experience and the established order of things, the views of the latter were clearly right, — as the people of the United States in their sovereign capacity subsequently decided. But Hamilton was not alone in protesting against the construction put upon the Constitution by its opponents. In the Virginia Conven- tion the same objections were raised by George Mason and Patrick Henry, and were met by Madison and Marshall as follows. Madison said : " Its jurisdiction [the Federal jurisdiction] in controversies between a State and citizens of another State is much objected to, and perhaps without reason. It is not in the power of individuals to call any State into court. The only operation it can have is that, if a State should wish to bring a suit against a citizen, it must be brought before the Federal Court. This will give satisfaction to individuals, as it will prevent citizens on whom a State may have a claim being dissatisfied with the State courts. . . . It appears to me that this [clausel can have no operation but this — to give a citizen a right to be heard in the Federal courts ; and if a State should condescend to be a party, this court may take cognizance of it." 3 Elliott's Debates, 2d ed. 533. Marshall, in answer to the same objection, said: "With respect to disputes between a State and the citizens of another State, its juris- diction has been decried with unusual vehemence. I hope that no gentleman will think that a State will be called at the Bar of the Federal court. . . . It is not rational to suppose that the sovereign power should be dragged before a court. The intent is to enable States to recover claims of individuals residing in other States. . . . But, say they, there will be partiality in it if a State cannot be de- fendant — if an individual cannot proceed to obtain judgment against a State, though he may be sued by a State. It is necessary to be so, and cannot be avoided. I see a difficulty in making a State defendant which does not prevent its being plaintiff." lb. 555. It seems to us that these views of those great advocates and de- fenders of the Constitution were most sensible and just ; and they apply equally to the present case as to that then under discussion. The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this case as it was in that. It is an attempt to strain the Constitution and the law to a construction never imagined or 298 HANS V. LOUISIANA. [CHAP. III. dreamed of. Can we suppose that, when the Eleventh Amendment was adopted, it was understood to be left open for citizens of a State to sue their own State in the Federal courts, whilst the idea of suits by citizens of other States, or of foreign States, was indignantly re- pelled? Suppose that Congress, when proposing the Eleventh Amend- ment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States : can we imagine that it would have been adopted by the States? The sup- position that it would is almost an absurditjj^on its face. The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by tlie Con- stitution when establishing the judicial power of the United States, Some things, undoubtedly, were made justiciable which were not known as such at the common law ; such, for example, as controversies between States as to boundary lines, and other questions admitting of judicial solution. And yet the case of Penn v. Lord Baltimore, 1 Ves, Sen. 444, shows that some of these unusual subjects of litigation were not unknown to the courts even in colonial times ; and several cases of the same general character arose under the Articles of Con- federation, and were brought before the tribunal provided for that purpose in those articles. 131 U. S. App. 1. The establishment of this new branch of jurisdiction seemed to be necessary from the ex- tinguishment of diplomatic relations between the States. Of other controversies between a State and another State or its citizens, which, on the settled principles of public law, are not subjects of judicial cognizance, this court has often declined to take jurisdiction. See Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 288, 289, and cases there cited. The suability of a State without its consent was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessarj' to be formally asserted. It was fully shown by an exhaustive examination of the old law by Mr. Justice Iredell in his opinion in Chisholm v. Georgia ; and it has been conceded in every case since, where the question has, in any way, been presented, even in the cases which have gone farthest in sustain- ing suits against the officers or agents of States. Osborn v'. Bank of United States, 9 Wheat. 738 ; Davis v. Gray, 16 Wall. 203 ; JSoard of Liquidation v. McComb, 92 U. S. 531 ; United States v. Lee, 106 U. S. 196 ; Poindexter v. Greenhow, 109 U. S. 63 ; Virginia Coupon Gases, 114 U. S. 269. In all these cases the effort was to show, and the court held, that the suits were not against the State or the United States, but against the individuals ; conceding that if they had been against either the State or the United States, they could not be maintaiaed. Mr. Webster stated the law with precision in his letter to Baring Brothers & Co., of October 16, 1839. Works, vol. vi., 537, 639. CHAP. III.] HANS V. LOUISIANA. 299 " The security for State loans," he said, " is the plighted faith of the State as a political community, It rests on the same basis as other contracts with established governments, the same basis, for example, as loans made by the United States under the authority of Congress ; that is to say, the good faith of the government making the loan, and its ability to fulfil its engagements." In Briscoe v. Bank of Kentucky, 11 Pet. 257, 321, Mr. Justice Mc- Lean, delivering the opinion of the court, said ; " What means of enforcing payment from the State had the holder of a bill of credit? It is said by the counsel for the plaintiffs, that he could have sued the State. But was a State liable to be sued? ... No sovereign State is liable to be sued without her consent. Under the Articles of Con- federation, a State could be sued only in eases of boundary. It is believed that there is no case where a suit has been brought, at any time, on bills of credit against a State ; and it is certain that no suit could have been maintained on this ground prior to the Constitution." " It may be accepted as a point of departure unquestioned," said Mr. Justice Miller, in Cunningham v. Macon & Brunswick Railroad, 109 U. S. 446, 451, " that neither a State nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a State may be made a party in the Supreme Court of' the United States by virtue of the original jurisdiction conferred on this court by the Constitution." Undoubtedly a State may be sued by its own consent, as was the case in Curran v. Arka7isas, et al., 15 How. 304, 309, and in Clark v. Barnard, 108 U. S. 436, 447. The suit in the former case was prosecuted by virtue of a State law which the legislature passed in conformity to the Constitution of that State. But this court decided, in Beers et al. v. Arkansas, 20 How. 527, 529, that the State could repeal that law at any time ; that it was not a contract within the terms of the Constitution prohibiting the passage of State laws im- pairing the obligation of a contract. In that case the law allowing the State to be sued was modified, pending certain suits against the State on its bonds, so as to require the bonds to be filed in court, which was objected to as an unconstitutional change of the law. Chief Justice Taney, delivering the opinion of the court, said : " It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission ; but it may, if it thinks proper, waive this privilege and permit itself to be made a defendant in a suit by indi- \iduals or by another State. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may pre- scribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public re- quires it. . . . The prior law was not a contract. It was an ordinary Act of legislation, prescribing the conditions upon which the State 300 HANS V. LOUISIANA. [CHAP. III. consented to waive the privilege of sovereignty. It contained no stipulation that these regulations should not be modified afterwards if, upon experience, it was found that further provisions were neces- sary to protect the public interest ; and no such contract can be im- • plied from the law, nor can this court inquire whether the law operated hardly or unjustly upon the parties whose suits were then pending. That was a question for the consideration of the legislature. They might have repealed the prior law altogether, and put an end to the jurisdiction of their courts in suits against the State, if they had thought proper to do so, or prescribe new ccinditions upon which the suits might still be allowed to proceed. In exercising this power the State violated no contract with the parties." The same doctrine was held in Railroad Company v. Tennessee, 101 U. S. 337, 339 ; Mailroad Company v. Alabama, 101 U. S. 832 ; and In re Ayers, 123 U. S. 443, 505. But besides the presumption that no anomalous and unheard of pro- ceedings or suits were intended to be raised up by the Constitution — anomalous and unheard of when the Constitution was adopted — an additional reason why the jurisdiction claimed for the Circuit Court does not exist, is the language of the Act of Congress by which its jurisdiction is conferred. The words are these : " The Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, . . . arising under the Constitution or laws of the United States, or treaties," etc. — " Concurrent with the courts of the several States." Does not this qualification show that Congress, in legislating to carry the Constitution into effect, did not intend to invest its courts with any new and strange jurisdictions ? The State courts have no power to entertain suits by individuals against a State without its consent. Then how does the Circuit Court, having only concurrent jurisdiction, acquire any such power? It is true that the same qualifi- cation existed in the Judiciary Act of 1789, which was before the court in Chisholm v. Georgia, and the majority of the court did not think that it was sufficient to limit the jurisdiction of the Circuit Court. Justice Iredell thought differently. In view of the manner in which that decision was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing, we think we are at liberty to prefer Justice Iredell's views in this regard. Some reliance is placed by the plaintiff upon the observations of Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. 264, 410. The Chief Justice was there considering the power of review exercisable by this court over the judgments of a State court, wherein it might be necessary to make the State itself a defendant in error. He showed that this power was absolutely necessary in order to enable the judici- ary of the United States to take cognizance of all cases arising under the Constitution and laws of the United States. He also showed that making a State a defendant in error was entirelj' different from suing CHAP. III.] HANS V. LOUISIANA. 301 a State in an original action in prosecution of a demand against it, and was not within the meaning of the Eleventh Amendment ; that the prosecution of a writ of error against a State was not the prosecution of a suit in the sense of that amendment, which had reference to the prosecution, by suit, of claims against a State. [Here follows a quo- tation from the opinion in Cohens v. Virginia, which is found on p. 290, ante, beginning " Where, then, a State," &c.] After thus showing by incontestable argument that a writ of error to a judgment recovered by a State, in which the State is necessarily the defendant in error, is not a suit commenced or prosecuted against a State in the sense of the amendment, he added, that if the court were mistaken in this, its error did not affect that case, because the writ of error therein was not prosecuted by '"a citizen of another State" or " of any foreign State," aiid so was not affected by the amendment ; but was governed by the general grant of judicial power, as extending " to all cases arising under the Constitution or laws of the United States,- without respect to parties;," p. 412. It must be conceded that the last observation of the Chief Justice does favor the argument of the plaintiff. But the observation was unnecessary to the decision, and in that sense extra-judicial, and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion. With regard to the question then before the court, it may be observed, that writs of error to judgments in favor of the Crown, or of the State, had been known to the law from time im- memorial ; and had never been considered as exceptions to the rule, that an action does not lie against the sovereign. To avoid misapprehension it may be proper to add that, although the obligations of a State rest for their performance upon its honor and good faith, and cannot be made the subjects of judicial cognizance unless the State consents to be sued, or comes itself into court; yet where property or rights are enjoyed under a grant or contract made by a State, they cannot wantonly be invaded. Whilst the State can- not be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts, may be judicially resisted ; and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment. It is not necessary that we should enter upon an examination of the reason or expediency of the rule which exempts a sovereign State from prosecution in a court of justice at the suit of individuals. This is fully disciTssed by writers on public law. It is enough for us to declare its existence. The legislative department of a State represents its polity and its will ; and is called upon by the highest demands of natural and political law to preserve justice and judgment, and to hold inviolate the public obligations. Any departure from this rule, except for reasons most cogent (of which the legislature, and not the courts, 302 TEXAS V. WHITE. [CHAP. III. is the judge), never fails in the end to incur the odium of the world, and to bring lasting injury upon the State itself. But to deprive the legislature of the power of judging what the honor and safety of the State may require, even at the expense of a temporary failure to dis- charge the public debts, would be attended with greater evils than such failure can cause. The judgment of the Circuit Court is Affirmed. Mr. Justice Harlan concurring. I concur with the court in holding that a suit directly against a State by one of ks own citizens is not one to which the judicial power of the United States extends, unless the State itself consents to be sued. Upon this ground alone I assent to the judgment. But I cannot give my assent to many things said in the opinion. The comments made upon the decision in Chisholm v. Georgia do not meet my approval. They are not necessary to the determination of the present case. Besides, I am of opinion that the decision in that case was based upon a sound interpretation of the Constitution as that instrument then was." STATE OF TEXAS v. WHITE. Supreme Court of the United States. 1868. [7 Wall, 700.] . . . The case was argued by Messrs. Paschal and Merrick, in behalf of Texas ; and contra, \>y Mr. Phillips., for White ; Mr. Pike, for Chiles ; Mr. (Jarlisle, for Hardenberg ; and Mr. Moore, for Birch, Murray, & Co. The Chief Justice delivered the opinion of the court. This is an original suit in this court, in which tlie State of Texas, claiming certain bonds of the United States as her property, asks an injunction to restrain the defendants from receiving payment from the National Government, and to compel the surrender of the bonds to the State. It appears from the bill, answers, and proofs, that the United States, by Act of September 9, 1850, offered to the State of Texas, in com- pensation for her claims connected with the settlement of her boundary, $10,000,000 in five per cent bonds, each for the sum of $1,000; and that this offer was accepted hy Texas. One half of these bonds were retained for certain purposes in the National Treasuiy, and the other half were delivered to the State. The bonds thus delivered were dated January 1, 1851, and were all made payable to the State of Texas, or 1 See N. H. v. La. et ah, 108 U. S. 76; and with that compare 2 Life B. R. Curtis, 93, 146, and 12 Am. Law Rev. C25. — Ed. CHAP. III.] TEXAS V. WHITE. 303 bearer, and redeemable after the 31st day of December, 1864. They were received in behalf of the State by the comptroller of public ac- counts, under authority of an Act of the Legislatui'e, which, besides giving that authority, provided that no bond should be available in the hands of any holder until after indorsement by the Governor of the State. After the breaking out of the rebellion, the insurgent Legislature of Texas, on the 11th of Januarj-, 1862, repealed the Act requiring the indorsement of the Governor (Acts of Texas, 1862, 45), and on the same day provided for the organization of a military board, composed of the Governor, comptroller, and treasurer; and authorized a majority of that board to provide for the defence of the State bj- means of any bonds in the treasury, upon any account, to the extent of $1,000,000. Texas Laws, 55. The defence contemplated by the Act was to be made against the United States by war. Under this authorit}" the military board entered into an agreement with George W. White and Jolni Chiles, two of the defendants, for the sale to them of one hun- dred and thirty-five of these bonds, then in the treasury of the State, and seventy-six more, then deposited with Droege & Co., in England ; in payment for which they engaged to deliver to the board a large quantity of cotton cards and medicines. This agreement was made on the 12th of January, 1865. On the 12th of March, 1865, White and^ Chiles received from the military board one hundred and thirty-five of these bonds, none of wliich were indorsed by any governor of Texas. Afterward, in the course of the years 1865 and 1866, some of the same bonds came into the possession of others of the defendants, by purchase, or as securit}' for advances of mone^'. Such is a bi'ief outline of the ease. It will be necessary hereafter to refer more in detail to some particular circumstances of it. The first inquiries to which our attention was directed hy counsel, arose upon the allegations of the answer of Chiles (1) that no sufficient autliority is shown for the prosecution of the suit in the name and on the behalf of the State of Texas ; and (2) that the State, having severed her relations with a majority of the States of the Union, and having b)' her ordinance of secession attempted to throw off her allegiance to the Constitution and government of the United States, has so far changed her status as to be disabled from prosecuting suits in the national courts. The first of these allegations is disproved by the evidence. A letter of authority, the autiienticity of which is not disputed, has been pro- duced, in which J. W. Throckmorton, elected governor under the Con- stitution adopted in 1866, and proceeding under an Act of the State Legislature relating to tliese bonds, expressly ratifies and confirms the action of the solicitors who filed the bill, and empowers them to prose- cute this suit ; and it is further proved by the affidavit of Mr. Paschal, counsel for the complainant, that he was duly appointed by Andrew J. Hamilton, wliile provisional governor of Texas, to represent the Stale 304 TEXAS V. WHITE. [CHAP. IIL of Texas in reference to the bonds in controversj-, and that his appoint- ment has been renewed by E. M. Pease, the actual Governor. If Texas was a State of the Union at the time of these Acts, and these persons, or either of them, were competent to represent the State, this proof leaves no doubt upon the question of authority. The other allegation presents a question of jurisdiction. . . . 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 i^nion and all the guaran- tees of republican government in the Union, attached at once to the State. The Act which consummated her adoiission 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 between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States. Considered therefore as transactions under the Constitution, the ordi- nance of secession, adopted by the convention and ratified hy a majority of the citizens of Texas, and all the Acts of her Legislature intended ' to give effect to that ordinance, were absolutei3- null. They were utterly without operation in law. The obligations of tlie State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainlj' follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have be- come foreign, and her citizens foreigners. The war must have ceased to be a war fd\- the suppression of rebellion, and must have become a war for conquest and subjugation. Our conclusion therefore is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any Act or declaration of anj' department of the national govern- ment, but entirely in accordance with the whole series of such Acts and declarations since the first outbreak of the rebellion. But in order to the exercise, bj' a State, of the right to sue in this court, there needs to be a State government, competent to represent the State in its relations with the national government, so far at least as the institution and prosecution of a suit is concerned. And it is bj- no means a logical conclusion, from the premises which we have endeavored to establish, that the governmental relations of Texas to the Union remained unaltered. Obligations often remain unimpaired, while relations are greatly changed. The obligations of allegiance to the State, and of obedience to her laws, subject to the Constitution of the United States, are binding upon all citizens, whether faithful or unfaithful to them ; but the relations which subsist CHAP. III.] TEXAS V. WHITE. 305 while these obligations are performed, are essentially different from those which arise when they are disregarded and set at nought. And the same must necessarily be true of the obligations and relations of States and citizens to the Union. No one has been bold enough to contend that, while Texas was controlled by a government hostile to the United States, and in afBliation with a hostile confederation, waging war upon the United States, senators chosen by her legislature, or representatives elected by her citizens, were entitled to seats in Con- gress ; or that any suit, instituted in her name, could be entertained in this court. All admit that, during this condition of civil war, the rights of the State as a member, and of her people as citizens of the Union, were suspended. The government and the citizens of the State, refusing to recognize their constitutional obligations, assumed the char- acter of enemies, and incurred the consequences of rebellion. These new relations imposed new duties upon the United States. The first was that of suppressing the rebellion. The next was that of re- establishing the broken relations of the State with the Union. The first of these duties having been performed, the next necessarily en- gaged the attention of the national government. The authority for the performance of the first had been found in the power to suppress insurrection and carry on war ; for the performance of the second, authority was derived from the obligation of the United States to guarantee to ever}' State in tiie Union a republican form of government. The latter, indeed, in the case of a rebelhon which involves the government of a State, and for the time excludes the national authority from its limits, seems to be a necessary complement to the former. Of this, the case of Texas furnishes a striking illustration. When the war closed there was no government in the State except that which had been organized for the purpose of waging war against the United States. That government immediately disappeared. The chief func- tionaries left the State. M^iy of the subordinate oflScials followed their example. Legal responsibilities were annulled or greatly- im- paired. It was inevitable that great confusion should prevail. If order was maintained, it was where the good sense and virtue of the citizens gave support to local acting magistrates, or supplied more directly the needful restraints. A great social change increased the difficulty of the situation. Slaves, in the insurgent States, with certain local exceptions, had been declared free by the Proclamation of Emancipation ; and whatever questions might be made as to the effect of that act, under the Constitution, it was clear, from the beginning, that its practical operation, in connection with legislative Acts of like tendency, must be complete enfranchise- ment. Wherever the national forces obtained control, the slaves became . freemen. Support to the Acts of Congress and the proclamation of the President, concerning slaves, was made a condition of amnest}- (13 Stat, at Large, 737) by President Lincoln, in December, 1863, and VOL. I. — 20 306 TEXAS V. WHITE. [CHAP. in. In' President Johnson, in Maj-, 1865. Tb. 758. And emancipation was confirmed, rather than ordained, in the insurgent States, hy the amendment to tiie Constitution prohibiting slaver^' throughout the Union, which was proposed by Congress in February, 1865, and rati- fied, before the close of the following autumn, b^' the requisite three fourths of the States, lb. 774-TJa. The new freemen necessarily became part of the people, and the people still constituted the State ; for States, like individuals, retain their identity, though changed to some extent in their constituent elements. And it was the State, thus ce.nstituted, which was now entitled to the benefit of the constitutional guarantee. There being then no government in Texas in constitutional relations with the Union, it became the duty of the United States to provide for the restoration of such a government. But the restoration of the government which existed before the rebellion, without a new election of officers, was obviousl3' impossible ; and before any such election could be properly held, it was necessary- that the old Constitution should receive such amendments as would conform its provisions to the new conditions created by emancipation, and afford adequate security to the people of the State. In the exercise of the power conferred by the guarantee clause, as in the exercise of ever3- other constitutional power, a discretion in the choice of means is necessarily allowed. It is essential only that the means must be necessary and proper for carrying into execution the power conferred, through the restoration of the State to its constitutional relations, under a republican form of government, and that no acts be done, and no authority exerted, which is either prohibited or unsanc- tioned by the Constitution. It is not important to review, at length, the measures which have been taken, under this power, by the executive and legislative depart- ments of the national government. It is proper, however, to observe that almost immediatel}' after the cessation of organized hostilities, and while the war yet smouldered in Texas, the President of the United States issued his proclamation appointing a provisional governor for the State, and providing for the assembling of a convention, with a view to the re-establishment of a republican government, under an amended constitution, and to the restoration of the State to her proper Constitu- tional relations. A convention was accordingl}' assembled, the Consti- tution amended, elections held, and a State government, acknowledging its obligations to the Union, established. Whether the action then taken was, in all respects, warranted by the Constitution, it is not now necessary to determine. The power exer- cised by the President was supposed, doubtless, to be derived from his constitutional functions, as commander-in-chief; and, so long as the war continued, it cannot be denied that he might institute temporary government within insurgent districts, occupied by the national forces, or take measures, iu any State, for the restoration of State goveruuient CHAP. III.] TEXAS V. WHITE. 307 faithful to the Union, employing, however, in such efforts, only such means and agents as were authorized by constitutional laws. But the power to carry into effect the clause of guarantee is primarily a legislative power, and resides in Congress. " Under the fourth article of the Constitution, it rests with Congress to decide what government is tlie established one in a State. For, as the United States guarantee to each State a republican government, Congress must necessaril}^ de- cide what government is established in the State, before it can deter- mine whether it is republican or not." This is the language of the late Chief Justice, speaking for this court, in a case from Rhode Island {Luther v. Borden, 7 Howard, 42), arising from the organization of opposing governments in that State. And we think that the principle sanctioned by it may be applied, with even more propriety, to the case of a State deprived of all rightful gov- ernment, by revolutionary violence ; though necessarilj- limited to cases where the rightful government is thus subverted, or in imminent dan- ger of being overthrown by an opposing government, set up by force within the State. The action of the President must, therefore, be considered as pro- \ visional, and, in that light, it seems to have been regarded by Congress. It was taken after the term of the 38th Congress had expired. Tlie 39th Congress, which assembled in December, 1865, followed by the 40th Congress, which met in March, 1867, proceeded, after long deliber- ation, to adopt various measures for reorganization and restoration. These measures were embodied in proposed amendments to the Con- stitution, and in the Acts known as the Reconstruction Acts, which have been so far carried into effect, that a majority of the States which were engaged in the rebellion have been restored to their constitutional relations, under forms of government, adjudged to he republican by Congress, through the admission of their " Senators and Representa- tives into the councils of the Union." Nothing in the case before us requires the court to pronounce judg- ment upon the constitutionality" of any particular provision of these Acts. But it is important to observe that these Acts themselves show that the governments, which had been established and had been in actual operation under executive direction, were recognized b^^ Congress as provisional, as existing, and as capable of continuance. By the Act of March 2, 1867 (14 Stat, at Large, 428), the first of the series, these governments were, indeed, pronounced illegal and were subjected to military control, and were declared to be provisional only ; and by the supplementary Act of July 19, 1867, the third of the series, it was further declared that it was the true intent and meaning of the Act of March 2, that the governments then existing were not legal State governments, and if continued, were to be continued subject to the militar}' commanders of the respective districts and to the para- mount authority of Congress. We do not inquire here into the consti- 308 TEXAS V. WHITE. [CHAP. IIL tutionality of this legislation so far as it relates to military' authorit}-, or to the paramount authority of Congress. It suffices to say, that the terms of the Acts neeessarilj- impl3' recognition of aetuallj- existing governments ; and that in point of fact, the governments thus recog- nized, in some important respects, still exist. What has thus been said generally describes, with sufficient accuracj', the situation of Texas. A provisional governor of the State was ap- pointed by the President in 1865 ; in 1866 a governor was elected b}' the people under tlie Constitution of that year ; at a subsequent date a governor was appointed by the commandei*of the district. Each of the three exercised executive functions and actually' represented the State in the executive department. In the case before us each has given his sanction to the prosecution of the suit, and we find no difficulty, without investigating the legal title of either to the executive office, in holding that the sanction thus given sufficiently warranted the action of the solicitor and counsel in behalf of the State. The necessary- conclusion is that the suit was instituted and is prosecuted by competent authority-. The question of jurisdiction being thus disposed of, we proceed to the consideration of the merits as presented by the pleadings and the evidence. . . . On the whole case, therefore, our conclusion is that the State of Texas is entitled to the relief sougiit b^- her bill, and a decree must be made accordingly. Mr. Justice Griek, dissenting. I regret that I am compelled to dis- sent from the opinion of the majoi'ity of the court on all the points raised and decided in this case. The first question in order is the jurisdiction of the court to entertain this bill in behalf of the State of Texas. The original jurisdiction of this court can be invoked only b}' one of the United States. The Territories have no such riglit conferred on them by the Constitution, nor have the Indian tribes who are nnderthe protection of the militarj- authorities of the government. Is Texas one of these United States ? Or was she such at the time this bill was filed, or since ? This is to be decided as a political fact, not as a legal fiction. This court is bound to know and notice the public history of the nation. If I regard the truth of history for the last eight j'ears, I cannot dis- cover tiie State of Texas as one of these United States. I do not think it necessarj' to notice an}- of the very astute arguments wl)ich have been advanced by the learned counsel in this case, to find the definition of a State, when we have the subject treated in a clear and common- sense manner by Chief Justice Marshall, in the case of Hepburn & Dundass v. Ellfy, 2 Cranch. 452. As the case is short, I hope to be excused for a full report of it, as stated and decided bj' the court.^ 1 For this case, see post, p. 348. — Ed. CHAP. III.] TEXAS V. WHITE. 309 He sajs: . . . "These clauses show that the word ' State' is used in the Constitution as designating a member of the Union, and excludes from the term the signification attached to it by writers on the law of nations." Now we have here a clear and well-defined test bj- which we may arrive at a conclusion with regard to the questions of fact now to be decided. Is Texas a State, now represented by members chosen by the people of that State and received on the floor of Congress? Has she two senators to represent her as a State in the Senate of the United States? Has her voice been heard in the late election of President ? Is she not now held and governed as a conquered province by military force ? The Act of Congress of March 2d, 1867, declares Texas to be a " rebel State," and provides for its government until a legal and republican State government could be legally established. It constituted Louisi- ana and Texas the fifth mihtary district, and made it subject, not to the civil authority, but to the " military authorities of the United States." It is true that no organized rebellion now exists there, and the courts of the United States now exercise jurisdiction over the people of that province. But this is no test of the State's being in the Union ; Daltota is no State, and yet the United States administer justice there as they do in Texas. The Indian tribes, who are governed bj' military force, cannot claim to be States of the Union. Wherein does the con- dition of Texas differ from theirs? Now, by assuming or admitting as a fact the present status of Texas as a State not in the Union politically, I beg leave to protest against any charge of inconsistency as to judicial opinions heretofore expressed as a member of this court, or silently assented to. I do not consider myself bound to express any opinion judicially as to the constitutional right of Texas to exercise the rights and privileges of a State of this Union, or the power of Congress to govern her as a conquered prov- ince, to subject her to military domination, and keep her in pupilage. I can onlj- submit to the fact as decided by the political position of the government ; and I am not disposed to join in any essaj- to prove Texas to be a State of the Union, when Congress have decided that she is not. It is a question of fact, I repeat, and of fact only. Politi- cally, Texas is not a State in this Union. Whether rightfully out of it or not is a question not before the court. . . . Me. Justice Swatne : I concur with my brother Grier as to the incapacitj- of the State of Texas, in her present condition, to maintain an original suit in this court. The question, in my judgment, is one in relation to which this court is bound by the action of the legislative department of the government. Upon the merits of the case, I agree with the majority of my brethren. I am authorized to saj- that mj- brother Miller unites witli mo in these views. 310 UNITED STATES V. TEXAS. [CHAP. lU. UNITED STATES v. THE STATE OF TEXAS. Supreme Court ov the United States. 1891. [143 ^7. 5.621.] 1 Mr. A. H. Garland for the State of Texas, in support of the de- murrer. Mr. John Hancock., Mr. George Clark, Mr. 0. A. Culber- son, and Mr. H. J. May were with him on the brief. Mr. Edgar Allan (with whom was Mr. Attorney- General on the brief) for the United States, opposing. Mr. Justice Harlan delivered the opinion of the court. Tliis suit was brought by original bill in this court pursuant to the Act of May 2, 1890, pi'oviding a temporary government for the Terri- toiT of Oklahoma. The 25th section recites the existence of a con- troversy between the United States and the State of Texas as to the ownership of what i.s designated on the map of Texas as Greer County, and provides that the Act shall not be construed to appl}' to that county until the title to the same has been adjudicated and determined to be in the United Slates. In order that there might be a speed^' and linal judicial determination of this controversy the Attorney-General of the United States was authorized and dii'ected to commence and prose- cute on behalf of the United States a proper suit in equity in this court against the State of Texas, setting forth the title of the United States to the country lying between the North and South Forks of the Eed River where the Indian Territory and the State of Texas adjoin, east of the one hundredth degree of longitude, and claimed b}- the State of Texas as within its boundary. 26 Stat. 81, 92, c. 182, § 25. The State of Texas appeared and filed a demurrer, and, also, an answer denying the material allegations of the bill. The case is now before the court onlv upon the demurrer, the principal grounds of which are : That the question presented is political in its nature and char- acter, and not susceptible of judicial determination by this court in the exercise of its jurisdiction as conferred by tiie Constitution and laws of the United States ; that it is not competent for the general government to bring suit against a State of the Union in one of its own courts, especially when the right to be maintained is mutually asserted by the United States and the State, namely, the ownership of certain desig- nated territory ; and that the plaintiffs cause of action, being a suit to recover real property, is legal and not equitable, and, consequently, so much of the Act of May 2, 1890, as authorizes and directs the prose- cution of a suit in equity to determine the rights of the United States to the territory in question is unconstitutional and void. . . . The bill alleges that the State of Texas, without right, claims, has taken possession of, and endeavors to extend its laws and jurisdiction 1 The statement of facts is omitted. — Ed. CHAP. III.] UNITED STATES V. TEXAS. 311 over, the disputed tcrritoiy, in violation of the treaty rights of the United States ; that, during the j-ear 1887, it gave public notice of its purpose to survey and place upon the market for sale, and otherwise dispose of, that territory ;" and that, in consequence of its proceeding to eject bona fide settlers from certain portions thereof, President Cleveland, by proclamation issued December 30, 1887, warned all persons, whether claiming to act as officers of the count3- of Greer, or otherwise, against selling or disposing of, or attempting to sell or dis- pose of, any of said lands, or from exercising or attempting to exercise any authority over them, and "against purchasing any part of said territor}' from an}' person or persons whatever." 25 Stat. 1483. Tlie relief asked is a decree determining the true line between the United States and the State of Texas, and whether the land consti- tuting what is called "Greer County" is within the boundary and jurisdiction of the United States or of the State of Texas. The gov- ernment prays that its rights, as asserted in the bill, be established, and that it have such other relief as the nature of the case may require. In support of the contention that the ascertainment of the boundary between a Territorj- of the United States and one of the States of the Union is political in its nature and character, and not susceptible of judicial determination, the defendant cites Foster v. Neilson, 2 Pet. 2.53, 307, 309 ; Cherokee Nation v. Georgia, 5 Pet. 1, 21 ; United States V. Arredondo, 6 Pet. 691, 711 ; and Garcia v. Lee, 12 Pet. 511, 517. ... These authorities do not control the present case. They relate to questions of boundary between independent nations, and have no application to a question of that character arising between the general government and one of the States composing the Union, or between two States of the Union. By the Articles of Confederation, Congress was made "the last resort on appeal in all disputes and differences" tlien subsisting or which thereafter might arise " between two or more States concerning boundar}-, jurisdiction, or any other cause what- ever ; " the authority so conferred to be exercised by a special tribunal to be organized in the mode prescribed in those Articles, and its judg- ment to be final and conclusive. Art. 9. At the time of the adoption of the Constitution, there existed, as this court said in Rhode Island V. Massachusetts, 12 Pet. 657, 723, 724, controversies between eleven States, in respect to boundaries, which had continued from the first settlement of the colonies. The necessitj- for the creation of some tribunal for the settlement of these and like controversies that might arise, under the new government to be formed, must, therefore, have been perceived by the framers of the Constitution, and, consequent!}-, among the controversies to which the judicial power of the United States was extended by the Constitution, we find those between two or more States. And that a controversy between two or more States, in respect to boundary, is one to which, under the Constitution, such judicial power extends, is no longer an open question in this court. 312 UNITED STATES V. TEXAS. [CHAP. III. The cases of Rhode Island v. Massachusetts, 12 Pet. 657 ; N'ew Jersey V. New York, 5 Pet. 284, 290 ; Missouri v. Iowa, 7 How. 660 ; Mor- ida V. Georgia, 1 7 How. 478 ; Alabama v. Georgia, 23 How. 505 ; Virginia v. TFesi Virginia, 11 Wall. 39, oo ; Missouri v. Kentucky, 11 Wall. 395 ; Indiana v. Kentucky, 136 U. S. 479 ; and Nebraska v. Iowa, ante, 359, were all original suits, in this court, for the judicial de- termination of disputed boundar3- lines between States. In New Jersey V. New York, 5 Pet. 284, 290, Chief Justice Marshall said : " It has then been settled by our predecessors, on great deliberation, that this court inaj- exercise its original jurisdiction in suits against a State, under the authority- conferred by the Constitution and existing Acts of Congress." And in Virginia v. West Virginia, it was said b}- Mr. Justice Miller to be the established doctrine of this court, " that it has jurisdiction of questions of boundary- between two States of this Union, and that this jurisdiction is not defeated, because in deciding that question it becomes necessarj- to examine into and construe compacts or agreements between those States, or because the decree which the court ma}- render, affects the territorial limits of the political jurisdiction and sovereignty of the States which are parties to the proceeding." So, in Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 287, 288 ; " By the Constitution, therefore, this court has original jurisdiction of suits brought by a State against citizens of another State, as well as of con- troversies between two States. . . . As to ' controversies between two or more States.' The most numerous class of which this court has entertained jurisdiction is that of controversies between two States as to the boundaries of their territorj-, such as were determined before the revolution hy the king in council, and under the Articles of Con- federation (while there was no national judiciar}-) bj' committees or commissioners appointed bj- Congress." In view of these cases, it cannot, with proprietj', be said that a question of boundarj- between a Territorj- of the United States and one of the I States of the Union is of a political nature, and not susceptible of judi- cial determination by a court having jurisdiction of such a controversy. /The important question therefore is, whether this court can, under the Constitution, take cognizance of an original suit brought by the United I States against a State to determine the boundary between one of the ■ Territories and such State. Texas insists that no such jurisdiction has been conferred upon this court, and that the only mode in which the present dispute can be peaceably settled is b}- agreement, in some form, between the United States and that State. Of course, if no such agreement can be reached — and it seems that one is not probable — and if neither party will surrender its claim of authority and jurisdiction over the disputed territory, the result, according to the defendant's theory of the Constitution, must be that the United States, in order to effect a settlement of this vexed question of boundar}-, must bring its suit in one of the courts of Texas — that State consenting that its courts ma.y be open for the assertion of claims against it hy the United CHAP. III.] UNITED STATES V. TEXAS. 313 States — or that, in the end, there must be a trial of physical strength between the government of the Union and Texas. The first alternative is unwarranted both by the letter and spirit of the Constitution. Mr. Justice Story has well said : " It scarcely seems possible to raise a reasonable doubt as to the propriety of giving to the national courts ju- risdiction of eases in which the United States are a party. It would be a perfect novelty in the history of national jurisprudence, as well as of public law, that a sovereign had no authority- to sue in his own courts. Unless tills power were given to the United States, the enforcement of all their rights, powers, contracts and privileges in their sovereign capacit}- would be at the mercy of the States. The3' must be enforced, if at all, in the State tribunals." Story Const. § 1674. The second alternative, above mentioned, has no place lu our constitutional system, and cannot be contemplated bj' any patriot except with feelings of deep concern. • The cases in this court show that the framers of the Constitution did provide, bj' tliat instrument, for the judicial determination of all cases in law and equity between two or more States, including those in- volving questions of boundary. Did they omit to provide for the judicial determination of controversies arising between the United States and one or more of the States of the Union? This question is in effect answered by United States v. North Carolina, 136 U. S. 211. That was an action of debt brought in this court bj' the United States against the State of North Carolina, upon certain bonds issued by that State. The State appeared, the case was determined here upon its merits, and judgment was rendered for the State. It is true that no question was made as to the jurisdiction of this court, and nothing was therefore said in the opinion upon that subject. But it did not escape tlie attention of the court, and the judgment would not have been rendered except upon the theory' that this court has original juris- diction of a suit by the United States against a State. As, however, the question of jurisdiction is vital in this case, and is distinctly- raised, it is proper to consider it upon its merits. . . . It is apparent upon the face of these clauses [Const. U. S. art. 3, § 2, and the Eleventh Amendment] that in one class of cases the jurisdiction of the courts of the Union depends " on the character of the cause, whoever may be the parties," and, in the other, on the character of the parties, whatever may be the subject of controversy. Cohens v. Virginia, 6 Wheat. 264, 378, 393. The present suit falls in each \ class, for it is, plainly, one arising under the Constitution, laws and S treaties of the United States, and, also, one in which the United States | is a party. It is, therefore, one to which, by the express words of the ) Constitution, the judicial power of the United States extends. That a Circuit Court of the United States has not jurisdiction, under existing statutes, of a suit' by the United States against a State, is clear; for by the Revised Statutes it is declared — as was [done bj- the Judiciary Act of 1789 — that " the Supreme Court shall h|a,ve exclusive jurisdic- 314 UNITED STATES V. TEXAS. [CHAP. IIL tion of all controversies of a civil nature where a State is a partj-, ex- cept between a State and its citizens, or between a State and citizens of other States or aliens, in which latter cases it shall have original, but not exclusive, jurisdiction." Rev. Stat. § 687 ; Act of September 24, 1789, e. 20, §13; 1 Stat. 80. Such exclusive jurisdiction was given to this court, because it best comported with the dignity of a State, that a case in which it was a part\- should be determined in the highest, rather than in a subordinate judicial tribunal of the nation. Why then maj- not this court take original cognizance of the present suit involving a question of boundar}' between»a Territory of the United States and a State? The words, in the Constitution, " in all cases ... in which a State shall be party, the Supreme Court shall have original jurisdiction," necessarily refer to all cases mentioned in the preceding clause in which a State may be made, of right, a party defendant, or in which a State may, of right, be a party plaintiff. It is admitted that these words do not refer to suits brought against a State by its own citizens or by citizens of other States, or b3- citizens or subjects of foreign States, even where such suits arise under the Constitution, laws and treaties of the United States, because the judicial power of the United States does not extend to suits of individuals against States. Hans \. Louisiana, 134 U. S. 1, and authorities there cited ; North Carolina V. Temple, 134 U. S. 22, 30. It is, however, said that the words last quoted refer onlj- to suits in which a State is a part}', and in which, also, the opposite part}- is another State of the Union or a foreign State. This cannot be correct, for it must be conceded that a State can bring an original suit in this court against a citizen of another State. Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 287. Besides,- unless a State is exempt altogether from suit b}- the United States, we do not perceive upon what sound rule of construction suits brought by the United States in this court — especially if thej- be suits the cor- rect decision of which depends upon the Constitution, laws or treaties of the United States — are to be excluded from its original jurisdiction as defined in the Constitution. That instrument extends tlie judicial power of the United States " to aU cases," in law and equitj-, arising under the Constitution, laws and treaties of the United States, and to controversies in which the United States shall be a party, and confers upon this court original jurisdiction "in all cases " "in which a State shall be party," that is, in all cases mentioned in the preceding clause in which a State maj^, of right, be made a party defendant, as well as in all cases in which a State may, of right, institute a suit in a court of the United States. The present case is of the former class. We can- not assume that the framers of the Constitution, while extending the judicial power of the United States to controversies between two or more States of the Union, and between a State of the Union and for- eign States, intended to exempt a State altogether from suit bj' the general government. Thej- could not have overlooked the possibility CHAP. III.]^ UNITED STATES V. TEXAS. 315 that controversies, capable of judicial solution, might arise between the United States and some of the States, and that the permanence of the Union might be endangered if to some tribunal was not intrusted the power to determine theru according to the recognized principles of law. And to what tribunal could a trust so momentous be more ap- propriately committed than to that which the people of the United States, in order to form a more perfect Union, establish justice and insure domestiy tranquillity, have constituted with authority to speak for all the people and all the States, upon questions before it to which the judicial power of the nation extends? It would be difficult to sug- gest any reason why this court should have jurisdiction to determine questions of boundary between two or more States, but not jurisdiction of controversies of like character between the United States and a State. ... That case \^ITans v. Za., 134 U. S. I] and others in this court relating to the 'suabilitj' of States, proceeded upon the broad ground that " it is inherent in the nature of sovereignt3- not to be amenable to the suit of an individual witiiout its consent." The question as to the suability of one government by another gov- ernment rests upon whollj- different grounds. Texas is not called to the bar of this court at the suit of an individual, but at the suit of the government establislied for the common and equal benefit of the people of all the States. The submission to judicial solution of controversies arising between these two governments, " each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other," McCulloch v. State of Maryland, 4 Wheat. 316, 400, 410, but both subject to the supreme law of the land, does no violence to the inherent nature of sovereignty. The States of the Union have agreed, in the Constitution, that the judicial power of the United States shall extend to all cases arising under the Constitution, laws and treaties of the United States, without regard to the character of the parties (excluding, of course, suits against a State by its own citizens or by citizens of other States, or by citizens or subjects of foreign States), and equally to controversies to which the United States shall be a part}', without regard to the subject of such controversies, and tliat this court may exercise original juris- diction in all such cases, " in which a State shall be party," without excluding those in which the United States may be the opposite party. The exercise, therefore, by this court, of such original jurisdiction in a suit brought by one State against another to determine the boundary line between them, or in a suit brought by the United States against a Slate to determine the boundary between a Territory of the United States and that State, so far from infringing, in either case, upon the sovereignty, is with the consent of the State sued. Such consent was * given by Texas when admitted into the Union upon an equal footing in all respects with the other States. "We are of opinion that this court has jurisdiction to determine 316 TENNESSEE V. DAVIS. £CHAP. III. the disputed question of boundary between the United States and Texas. . . . It is not a suit simply to determine the legal title to, and the owner- ship of, the lands constituting Greer Count\-. It involves the larger question of governmental authority and jui'isdiction over that territory. Tlie United States, in effect, asks the specific execution of the terms of the treaty of 1819, to the end that the disorder and public mischiefs that will ensue from a continuance of the present condition of things may be prevented. The agreement, embodied in the treaty, to fix the lines with precision, and to place landmarks to designate the limits of the two contracting nations, could not well be enforced bj- an action at law. The bill and amended bill make a case for the interposition of a court of equit}-. Demurrer overruled. Mr. Chief Justice Fuller, with whom concurred Mr. Justice Lamar, dissenting. Mr. Justice Lamar and mj'self are unable to concur in the decision just announced. This court has original jurisdiction of two classes of cases only, those affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party. The judicial power extends to "controversies between two or more States;" "between a State and citizens of another State;" and " between a State or the citizens thereof, and foreign States, citizens or subjects." Our original jurisdiction, which depends solelj' upon the character of the parties, is confined to the cases enumerated, in which a State may be a party, and this is not one of them. The judicial power also extends to controversies to which the United States shall be a part3-, but such controversies are not included in the grant of original jurisdiction. To the controvers)- here the United States is a party. We are of opinion, therefore, that this case is not within the original jurisdiction of the court. THE STATE OF TENNESSEE v. DAVIS. Supreme Court of the United States. 1879. [100 U. S. 257.] Certificate of division in opinion between the judges of the Circuit Court of the United States for the Middle District of Tennessee. ... The record having been returned, in compliance with the writ, a motion was made to remand the case to the State court ; and, on the hearing of the motion, the judges were divided in opinion upon the following questions, which are certified here : — CHAP. III.] TENNESSEE V. DAVIS. 317 First, Whether an indictment of a revenue officer (of the United States) for murder, found in a State court, under the facts alleged in the petition for removal in this case, is removable to the Circuit Court of the United States, under sect. 643 of the Revised Statutes. Second, Whether, if removable from the State court, there Is any mode and manner of procedure in the trial prescribed by the Act of Congress. Third, Whether, if not, a trial of the guilt or innocence of the de- fendant can be had in the United States Circuit Court. Mr. JBerijamin J. Lea, Attorney-General of Tennessee, and Mr. James G. Field, for the plaintiff in error. Mr. Attorney- General Devens and Mr. Assistant Attorney- General Smith, contra. Mr. Justice Strong delivered the opinion of the court. The first of the questions certified is one of great importance, bring- ing as it does into consideration the relation of tiie general government to the government of the States, and bringing also into view not merely the construction of an Act of Congress, but its constitutionality. That in this case the defendant's petition for removal of the cause was in the form prescribed by the Act of Congress admits of no doubt. It represented that he liad been indicted for murder in the Circuit Court of Grundy County, and that the indictment and criminal prosecution were still pending. Jt represented further, that no murder was com- mitted, but that, on the other hand, the killing was committed in the petitioner's own necessary self-defence, to save his own life ; that at the time when the alleged act for which he was indicted was committed he was, and still is, an officer of the United States, to wit, a deputy collector of internal revenue, and that the act for which he was indicted was performed in his own necessary self-defence while engaged in the discharge of his duties as deputy collector ; that he was acting b^' and under the authority of the internal revenue laws of the United States ; that what he did was done under and bj' right of his office, to wit, as deputy collector of internal revenue ; that it was his duty to seize illicit distilleries and the apparatus that is used for the illicit and unlawful distillation of spirits; and that while so attempting to enforce the! revenue laws of the United States, as deputy collector as aforesaid, he i was assaulted and fired upon by a number of armed men, and that in ( defence of his life he returned the fire. The petition was verified by ' oath, and the certificate required by the Act of Congress to be given by the^^titioner's legal counsel was appended thereto. There is, there- fore, no room for reasonable doubt that a case was made for the removal of the indictment into the Circuit Court of the United States, If sect. 643 of the Revised Statutes embraces criminal prosecutions in a State court, and makes them removable, and if that Act of Congress was not unauthorized by the Constitution. The language of the statute (so far as it is necessarj' at present to refer to it) is as follows : ' ' When any | civil suit or criminal prosecution is commenced in any court of a State 318 TENNESSEE V. DAVIS. [CHAP. III. against any officer appointed under, or acting by authority of, an}' revenue law of the United States, now or liereafter enacted, or against any person acting by or under authority of any such officer, on ac- count of an^' act done under color of hia office, or of any such law, or on account of anj- right, title, or authority claimed hy such officer or other person under anj' such law," the case may be removed into the Federal Court. Now, certainly the petition for the removal represented that the act for which the defendant was indicted was done not merely under color of his office as a revenue collector, or under color of the revenue laws, not merely- while h« was engaged in perform- ing his duties as a revenue officer, but that it was done under and bj- right of his office, and while he was resisted In- an armed force in his attempts to discharge his official dut}-. This is more than a claim of right and authority under the law of the United States for the act for which he has been indicted. It is a positive assertion of the existence of sucii authority-. But the Act of Congress authorizes the removal of an}' cause, when the acts of the defendant complained of were done, or claimed to have been done, in the discharge of his duty as a Federal officer. It maljes such a claim a basis for the assumption of Federal jurisdiction of the case, and for retaining it, at least until the claim proves unfounded. That the Act of Congress does provide for the removal of criminal prosecutions for offences against the State laws, wlien there arises in them the claim of the Federal right or authoritj-, is too plain to admit of denial. Such is its positive language, and it is not to be argued away by presenting the supposed incongruit}- of administering State criminal laws b}' other courts than those established b}- the State. It has been strenuousl}- urged that murder within a State is not made a crime by anj- Act of Congress, and that it is an offence against the peace and dignit\- of the State alone. Hence it is inferred that its trial and punishment can be conducted onlj- in StatC' tribunals, and it is argued that the Act of Congress cannot mean what it saj's, but that it must intend only such prosecutions in State courts as are for offences against the United States, — offences against the revenue laws. But there can be no criminal prosecution initiated in an}' State court for that which is merelj' an offence against the general government. If, therefore, the statute is to be allowed any meaning, when it speaks of criminal prosecutions in State courts, it must intend those that are instituted for alleged violations of State laws, in which defences are set up or claimed under United States laws or authority. We come, then, to the inquirj-, most discussed during the argument, whether sect. 643 is a constitutional exercise of the power vested in Congress. Has the Constitution conferred upon Congress the power to authorize the removal, from a State court to a Federal court, of an indict- ment against a revenue officer for an alleged crime against the State, and to order its removal before trial, when it appears that a Federal question or a claim to a Federal right is raised in the case, and must be decided CHAP. III. J TENNESSEE V. DAVIS. 319 therein? A more important question can hardly be imagined. Upon its answer may depend the possibility of the general government's preserving its own existence. As was said in Martin v. Hunter, 1 Wheat. 363, "The general government must cease to exist whenever it loses the power of protecting itself in the exercise of its constitutional + powers." It can act only through its oflflcers and agents, and they must act within the States. If, when thus acting, and witliin the scope of their authority, those officers can be arrested and brought to trial in a iState court, for an alleged offence against the law of the State, yet wariiinted by the Federal authority they possess, and if the general 4 government is powerless to interfere at once for their protection, — if their protection must be left to the action of the State court, — the operations of the general government may at any time be arrested at the will of one of its members. The legislation of a State ma}' be un- friendly. It may afHx penalties to acts done under the immediate direc- tion of the national government, and in obedience to its laws. It may deny the authority conferred by those laws. The State court m&y ad- minister not only tlie laws of the State, but equallj- Federal law, in such a manner as to paralyze the operations of the government. And even if, after trial and final judgment in the State court, the case can be brought into the United States Court for review, the officer is with- 1" drawn from the discharge of his dut^' during the pendency of the prose- cution, and tlie exercise of acknowledged Federal power arrested. We do not think such an element of weakness is to be found in the Constitution. The United States is a government with authority ex- tending over the whole territory of the Union, acting upon the States and upon the people of the States. While it is limited in the number of its powers, so far as its sovereignty extends it is supreme. No'( State government can exclude it from the exercise of any authority , conferred upon it l)y the Constitution, obstruct its authorized officers ' against its will, or withhold from it, for a moment, the cognizance of anj' subject which that instrument has committed to it. By the last clause of the eighth section of the first article of the Constitution, Congress is invested with power to make all laws neces- sary and proper for carrying into execution not only all the powers previously specified, but also all other powers vested by the Constitu- tion in the government of the United States, or in any department or officer thereof. Among these is the judicial power of- the govern- ment. That is declared by the second section of the third article to " extend to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made or which shall be made under their authority," &c. This provision embraces alike civil and criminal cases arising under the Constitution and laws. Cohens v. Virginia, 6 Wheat. 264. Both are equally within the domain of the i^ judicial powers of the United States, and there is nothing in the grant to justifj- an assertion that whatever power may be exerted over a civil case may not be exerted as fully over a criminal one. And a 320 TENNESSEE V. DAVIS. [CHAP. III. case arising under the Constitution and laws of the United States may as well arise in a criminal prosecution as in a civil suit. What consti- tutes a case thus arising was early defined in the ease cited from 6 Wheaton. It is not merely one where a party comes into court to de- mand something conferred upon him by the Constitution or by a law or treaty. A case consists of the right of one part^' as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the riglit or privilege, or claim or protection, or defence of the partj-, in whole or in part, b}' whom they are asserted. Story on the Constitution, sect. 1647 ; 6 Wheat. 379. It was said in Osborne v. I'he Bank of the United States, 9 Wheat. 738, " When a question to which the judicial power of the Union is extended by the Constitu- y; tion forms an ingredient of the original cause, it is in the power of Congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it." And a case arises under the laws of the United States, when it arises out of the imphcation of the law. Mr. Chief Justice Marshall said, in the case last cited : " It is not unusual for a legislative act to involve conse- quences which are not expressed. An officer, for example, is ordered to arrest an individual. It is not neeessarj-, nor is it usual, to sa}' that he shall not be punished for obeying this order. His securit}' is implied in the order itself. It is no unusual thing for an Act of Congress to implj-, without expressing, this very exemption from State control. . . . The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point. It has never been doubted that all who are employed in them are protected while in the line of their duty ; and yet this protection is not expressed in an}- Act of Congress. It is inci- dental to, and is implied in, the several Acts by which those institutions are created ; and is secured to the individuals employed in them by the judicial power alone ; that is, the judicial power is the instrument em- ploj-ed bj' the government in administering this security." The constitutional right of Congress to authorize the removal before X trial of civil cases arising under the laws of the United States has long since passed beyond doubt. It was exercised almost contemporaneously with the adoption of the Constitution, and the power has been in con- stant use ever since. Tiie Judiciarj- Act of Sept. 24, 1789, was passed by the first Congress, man}- members of which had assisted in framing the Constitution ; and though some doubts wei-e soon after suggested whether cases could be removed from State courts before trial, those doubts soon disappeared. Whether removal from a State to a Federal court is an exercise of appellate jurisdiction, as laid down in Stor3''s Commentaries on the Constitution, sect. 1745, or an indirect mode of exercising original jurisdiction, as intimated in Railway Company v. CHAP. III.] TENNESSEE V. DAVIS. 321 W/iUton, 13 Wall. 270, we need not now inquire. Be it one or the other, it was ruled in the case last cited to be constitutional. But if there is power in Congress to direct a removal before trial of a civil ease arising under the Constitution or laws of the United States, and direct its removal because such a case has arisen, it is impossible to see whj- the same power may not order the removal of a criminal prose- cution, when a similar case has arisen in it. Tiie judicial power is declared to extend to all cases of the character described, making nox distinction between civil and criminal, and the reasons for conferring upon the courts of the national government superior jurisdiction over cases involving authority and rights under the laws of the United States are equally applicable to both. As we have already said, such a juris- diction is necessary' for the preservation of the acknowledged powers of the government. It is essential, also, to a uniform and consistent administration of national laws. It is required for the preservation of that supremac}' which the Constitution gives to the general government by declaring that the Constitution and laws of the United States made in pursuance thereof, and the treaties made or which shall be made under the authority of the United States, shall be the supreme laws of, the land, and the judges in every State shall be bound therebj', any- , thing in the Constitution or laws of an}' State to the contrary notwith- standing." The founders of the Constitution could never have intended to leave to the possibl}' varying decisions of the State courts what the laws of the government it established are, what rights they confer, and what protection shall be extended to those who execute them. If they did, where is the supremacy over those questions vested in the govern- ment by the Constitution? If, whenever and wherever a case arises under the Constitution and laws or treaties of the United States, the national government cannot take control of it, whetlier it be civil or criminal, in any stage of its progress, its judicial power is, at least, temporarily silenced, instead of being at all times supreme. In criminal as well as in civil proceedings in State courts, cases under the Consti- tution and laws of the United States might have been expected to arise, as, in fact, they do. Indeed, the powers of the general government and the lawfulness of authoritj- exercised or claimed under it, are quite ^ as frequently in question in criminal cases in State courts as thej- are in civil cases, in proportion to their number. The argument so much pressed upon us, that it is an invasion of the sovereignty of a State to vritlidraw from its courts into the courts of the general government the trial of prosecutions for alleged offences against the criminal laws of a State, even though the defence presents a case arising out of an Act of Congress, ignores entirely the dual character of our government. It assumes that the States are com- pletel}- and in all respects sovereign. But when the national govern- ment was formed, some of the attributes of State sovereignty were partially, and others wholly, surrendered and vested in the United States. Over the subjects thus surrendered the sovereignty of the VOL. I. — 21 322 TENNESSEE U. DAVIS. [CHAP. IIL States ceased to extendi Before the adoption of the CoDstitution, each State had complete and exclusive authoritj' to administer by its coui-ts all the law, civil and criminal, which existed within its borders. Its judicial power extended over everj- legal question that could arise. But ywheu the Constitution was adopted, a portion of that judicial power became vested in the new government created, and so far as thus vested it was withdrawn from the sovereignt3' of the State. Now the execu- tion and enforcement of the laws of the United States, and the judicial determination of questions arising under them, are confided to another sovereign, and to that extent the sovereignt5-of the State is restricted. The removal of cases arising under those laws, from State into Federal courts, is, therefore, no invasion of State domain. On the eontrarj-, a denial of the right of the general government to remove them, to take charge of and try any case arising undei' the Constitution or laws of the United States, is a denial of the conceded sovereignty of that govern- ment over a subject expressly' committed to it. It is true, the Act of 1789 .authorized the removal of civil cases only. It did not attempt to confer upon the Federal courts all the judicial power vested in the government. Additional grants liave from time to 1^ time been made. Congress has authorized more and more fuUj-, as occasion has required, the removal of civil cases from State courts into the circuit courts of the United States, and the constitutionality of such authorization has met with general acquiescence. It has been sustained bj- the decisions of this court. Nor has the removal of civil cases alone been authorized. On the 4th of February, 1815, an Act was passed (3 Stat. 198) providing that if anj- suit or prosecution should be commenced in any State court against anj- collector, naval ofHcer, surveyor, inspector, or anj' other officer, civil or militarj', or any other person aiding or assisting, agree- ably to the provisions of the Act, or under color thereof, for any act done or omitted to be done as an officer of the customs, or for anything done by virtue of the Act or under color thereof, it might be removed before trial into the Circuit Court of the United States, provided the Act should not apply to anj- offences involving corporal punishment- This Act expresslj- applied to a criminal action or prosecution. It was intended to be of short duration, but it was extended by the Act of March 3, 1815 (3 Stat. p. 233, sect. 6), and re-enacted in 1817 for a period of four years. So, in 1833, by the Act of March 2 (4 lb. c. 57, sect. 8), it was enacted that in anj' case where suit or prosecution should be com- menced in a State court of an^- State, against anj- officer of the United States, or other person, for or on account of any act done under the revenue laws of the United States, or under color thereof, or for or on account of any right, authority, or title set up or claimed by such officer, or other person, imder any such law of the United States, the '^ suitor prosecution might be removed, befor« trial, into the Federal Circuit Court of the proper district. The historj* of this Act is well CHAP, in.] TENNESSEK V. DAVIS. 32.3 known. It was passed in consequence of an attempt bj^ one of tbe States of the Union to make penal the collection by United States offi- cers within the State of duties under the tariff laws. It was recom- mended bj President Jackson in a special message, and passed in the Senate by a vote of 32 to 1, and in the House bj' a majority of 92. It undoubtedly embraced both civil and criminal cases. It was so under- stood and intended when it was passed. The chairman of the Judiciary Committee which introduced the bill said : " It gives the right to re- move at any time before trial, but not after judgment has been given, and thus affects in no way the dignity of the State tribunals. Whether in criminal or civil cases, it 'gives this right of removal. Has Con- gress power in criminal cases? He would answer the question in the afflrmative. Congress liad the power to give the right in criminal as well as in civil cases, because the second section of the third article of the Constitution speaks of all cases in law and equitj-, and these com- prehensive terms cover all. ... It was more necessary- that this juris- diction should be extended over criminal than over civil cases. If it were not admitted that the Federal judiciary had jurisdiction of criminal cases, then was nullification ratified and sealed forever ; for a State \ would have nothing more to do than to declare an act a felony or mis- demeanor, to nullify all the laws of the Union." The provisions of the Act of July 13, 1866 (14 Stat. 171, sect. 67), relative to the removal of suits or prosecutions in State courts against internal revenue officers, provisions re-enacted in sect. 643 of the Re- vised Statutes, are almost identical with those of the Act of 1833, the only noticeable difference being, that in the latter Act the adjective " criminal " is inserted before the word " prosecution." This made no change in the meaning. The well-understood legal signification of the word "prosecution " is a criminal proceeding at the suit of the govern- ment. Thus it appears that all along our history the legislative under- standing of the Constitution has been that it authorizes the removal from State courts to the circuit courts of the United States, alike civil and criminal cases, arising under the laws, the Constitution, or treaties. The subject has more than once been before this court, and it has been fully considered. In Martin v. Hxmter, 1 Wheat. 304, it was admitted in argument by Messrs. Tucker and Dexter that there might be a removal before judgment, though it was contended there could not be after; but the contention was overruled, and it was declared that Congress might authorize a removal either before or after judgment ; that the time, the process, and the manner must be subject to its abso- lute legislative control. In that case, also, it was said that the remedy of the removal of suits would be utterly inadequate to the purposes of the Constitution, if it could act only upon the parties, and not upon the State courts. Judge Story, who delivered the opinion, adding : " In respect to criminal prosecutions, the difficulty seems admitted to be insurmountable, and, in respect to civil suits, there would in many cases be rights without corresponding remedies. ... In respect to criminal prosecutions there would at once be an end of all control, and 324 TENNESSEE V. DAVIS. [CHAP. lU. the State decisions would be paramount to the Constitution." The ex- pression that the difficulty in the waj- of the removal of criminal prose- cutions seems admitted to be insurmountable has been laid hold of here, in argument, as a declaration of the court that criminal prosecutions cannot be removed. It is a very shortsighted and unwarranted infer- ence. What the court said was, that the remedy in such cases seems to be insurmountable, if it could not act upon State courts as well as parties ; and it was ruled that it does thus act. The expression must be read in its connection. In Martin v. Hunter the removal was by writ of error after final judgment in the State court ; which certainly seems more an invasion of State jurisdiction than a removal before trial. The case was followed by Cohens v. Virginia, 6 lb. 264, a crimi- nal case, in which the defendant set up against a criminal prosecution an authoritj- under an Act of Congress. There it was decided that cases might be removed in which a State was a party. This also was a writ of error after a final judgment ; but it, as well as the former case, recognized the right of Congress to authorize removals either before or after trial, and neither case made anj' distinction between civil and criminal proceedings. In The Mayor v. Cooper, 6 Wall. 247, the validit}- of the removal Acts of 1863, March 3, sect. 5 of c. 81 (12 Stat. 756), and its amend- ment of May 11, 1866 (14 id. 1866), which embraced not only civil cases but criminal prosecutions, and authorized their removal before trial, came under consideration, and it was sustained. This court then said : The constitutional power is given in general terms. "No limita- tion is imposed. The broadest language is used. ' All cases ' so arising are embraced. How jurisdiction shall be acquired bj' the in- ferior court" (of the United States), " whether it shall be original or appellate, or original in part and appellate in part, and the manner of procedure in its exercise after it has been acquired, is not prescribed. This Constitution is silent upon these subjects. Thej- are remitted witliout clieck or limitation to the wisdom of the legislature." " Juris- diction, original or appellate, alilie comprehensive in either case, may be given. The constitutional boundary line of both is the same. Every variety and form of appellate jurisdiction within the sphere of the power, extending as well to the courts of the States as to those of the nation, is permitted. There is no distinction in this respect between civil and criminal cases. Both are within its scope. Nor is it anj- objection that questions are involved which are not at all of a Federal character. If one of the latter exist, if there be a single such ingredient in the mass, it is sufficient." The court added: "We entertain no doubt of the constitutionalitj' of the jurisdiction given by the Act under which this case has arisen." See also Com. v. Ashmim, 3 Grant Cas. 436 ; Ih. 416-418 ; State v. Hoskins, 77 N. C. 530, decided in 1877, where the constitutionality of sect. 643 of the Revised Statutes was affirmed after a full and instructive discussion. It ought, therefore, to be considered as settled that the constitutional powers of Congress to authorize the removal of criminal cases for CHAP. III.] TENNESSEE V. DAVIS. 325 alleged offences against State laws from State courts to the circuit courts of the United States, when there arises a Federal question in them, is as ample as its power to authorize the removal of a civil case. Manj' of tiie cases referred to, and others, set out with great force the indispensability of such a power to the enforcement of Federal law. It follows that the first question certified to us from the Circuit Court of Tennessee must be answered in the affirmative. The second question is, " Whether, if the case be removable from the State court, there is any mode and manner of procedure in the trial prescribed by the Act of Congress." Whether there is or not is totally immaterial to the inquiry whether the case is removable^ and this question can hardly have arisen on the molionTS)1'ematlQ^nlWse. The imaginary' difficulties and incongruities supposed to be in the way of trying in the Circuit Court an indictment for an alleged offence against the peace and dignity- of a State, if the}' were real, would be for the consideration of Congress. But they are unreal. While it is true there is neither in sect. 643, nor in the Act of which it is a re-enactment, anj' mode of procedure in the trial of a re- moved case prescribed, except that it is ordered the cause when removed shall proceed as a cause originally commenced in that court, yet the mode of trial is sufficiently obvious. The circuit courts of the United States have all the appliances which are needed for the trial of anj' criminal case. They adopt and apply the laws of the State in civil f cases, and there is no more difficulty in administering the State's crimi- nal law. They are not foreign courts. The Constitution has made them courts within the States to administer the laws of the States in certain cases ; and, so long as they keep within the jurisdiction assigned to them, their general powers are adequate to the trial of any case. The supposed anomaly of prosecuting offenders against the peace and dignity of a State, in tribunals of the general government, grows en- tirelj- out of the division of powers between that government and the government of a State ; that is, a division of sovereignty over certain matters. When this is understood (and it is time it should be), it will not appear strange that, even in cases of criminal prosecutions for alleged offences against a State, in which arises a defence under United States law, the general government should take cognizance of the case and try it in its own courts, according to its own forms of proceeding. The third question certified lias been sufficiently answered in what we have said respecting the second. It must be aiiewered in the affirmative. The first question will be answered in the affirmative, and the second is answered as in the opinion. [The dissenting opinion of Mr. Justice Clifford, with whom Mr. Justice Field concurred, is omitted.] * -V, 1 Compare U. S. v, Reese, 92 TJ. S. 214^ Strauder v. West Virginia, 100 U. S. 303 ; Virginia v. Reeves, lb. 313. — Ed. ^ 326 EX PARTE SIEBOLD. [CHAP..m, ExPaete SIEBOLD. Supreme Court of the United States. 1879. [100 U. S. 371.] Petition for writ of habeas corpus. The facts are stated in the opinion of the court, Mr. Bradley T. Johnson, for the petitioners. The Attorney- General, contra. • Mr. Justice Bradleit delivered the opinion of the court. The petitioners in this case, Albert Siebold, Walter Tucker, Martin C. Burns, Lewis Coleman, and Henry Bowers, were judges of election at different voting precincts in the city of Baltimore, at the election held in that city, and in the State of Maryland, on the fifth day of November, 1878, at which representatives to the Forty-sixth Congress were voted for. At the November Term of the Circuit Court of the United States for the District of Maryland, an indictment against each of the petitioners was found in said court, for offences alleged to have been committed by them respectively at their respective precincts whilst being such judges of election ; upon which indictments they were severally tried, convicted, and sentenced by said court to fine and imprisonment. They now apply to this court for a writ of habeas corpus to be relieved from imprisonment. . . . These indictments were framed partly under sect. 5515 and partly under sect. 5522 of the Revised Statutes of the United States ; and the principal questions raised by the application are, whether those sec- tions, and certain sections of the title of the Revised Statutes relating to the elective franchise, which they are intended to enforce, are within the constitutional power of Congress to enact. If they are not, then it is contended that the Circuit Court has no jurisdiction of the cases, and that the convictions and sentences of imprisonment of the several petitioners were illegal and void. . . . Tlie State may malie regulations on the subject; Congress may make regulations on . the same subject, or may alter or add to those already made. The paramount character of those made by Congi-ess has the effect to supersede those made by the State, so far as the two are inconsistent, and no farther. There is no such conflict between them as to prevent their forming a harmonious system perfectly cap- able. of being administered and carried out as such. As to the supposed conflict that may arise between the officers appointed by the State and national governments for superintending tiie election, no more insuperable difficulty need arise than in the appli- cation of the regulations adopted by each respectively. The regu- lations of Congress being constitutionally paramount, the duties imposed thereby upon the officers of the United States, so far as they CHA.P. III.J EX PARTE SIEBOLD. 327 have respect to the same matters, roust necessarily be paramount to those to he performed by the officers of the State. If both cannot be performed, the latter are fro tanto superseded and cease to be duties. If the power of Congress over the subject is supervisory and para- mount, as we have seen it to be, and if officers or agents are created for carrying out its regulations, it follows as a necessary consequence; that such officers and agents must have the requisite authority to act without obstruction or interference from the officers of the State. No greater subordination, in kind or degree, exists in this case than in any other. It exists to the same extent between the different officers appointed by the State, when the State alone regulates the election. One officer cannot interfere with the duties of another, or obstruct or hinder him in the performance of them. Where there is a disposition to act harmoniously, there is no danger of disturbance between those who have different duties to perform. When the rightful authority of the general government is once conceded and acquiesced in, the appre- hended difficulties will, disappear. Let a spirit of national as well as local patriotism once prevail, let unfounded jealousies cease, and we shall hear no more about the impossibility of harmonious action be- tween the national and State governments in a matter in which they have a mutual interest. • As to the supposed incompatibility of independent sanctions and punishments imposed by the two governments, for the enforcement of the duties required of the officers of election, and for their protection in the performance of those duties, the same considerations apply. While the State will retain the power of enforcing such of its own regulations as are not superseded by those adopted by Congress, >it cannot be disputed that if Congress has power to make regulations it must have the power to enforce them, not only by punishing the de- linquency of officers appointed by the United States, but by restrain- inc and punishing those who attempt to interfere with them in the performance of their duties ; and if, as we have shown, Congress may revise existing regulations, and add to or alter the same as far as it deems expedient, there can be as little question that it may impose additional penalties for the prevention of frauds committed by the State officers in the elections, or for their violation of any duty relating thereto, whether arising from the common law or from any other law. State or national. Why not? Penalties for fraud and delinquency are part of the regulations belonging to the subject. If Congress, by its power to make or alter the regulations, has a general supervisory^ power over the whole subject, what is there to preclude it from impos- ing additional sanctions and penalties to prevent such fraud and delinquency V It is objected that Congress has no power to enforce State laws or to punish State officers, and especially has no power to punish them for violating the laws of their own State. As a general proposition, this is undoubtedly true ; but when, in the performance of their func- 328 EX PARTE SIEBOLD. [CHAP. III. tions, State officers are called upon to fulfil duties which they owe to ^ the United States as well as to the State, has the former no means of compelling such fulfilment? Yet that is the case here. It is the duty of the States to elect representatives to Congress. The due and fair election of these representatives is of vital importance to the United States. The government of the United States is no less concerned in the transaction than the State government is. It certainly is not bound to stand by as a passive spectator, when duties are violated and outrageous frauds are committed. It is directly interested in the faithful performance, by the officers of elestion, of their respective duties. Those duties are owed as well to the United States as to the State. This necessarily follows from the mixed character of the transaction. State and national. A violation of duty is an offence against the United States, for which the offender is justly amenable to that government. No official position can shelter him from this re- sponsibility. In view of the fact that Congress has plenary and para- mount jurisdiction over the whole subject, it seems almost absurd to say that an officer who receives or has custody of the ballots given for a representative owes no duty to the national government which Congress can enforce ; or that an officer who stuffs the ballot-box cannot be made amenable to the United States. If Congress has not, prior to the passage of the present laws, imposed any penalties to prevent and punish frauds and violations of duty committed by officers of election, it has been because the exigency has not been deemed X. sufficient to require it, and not because Congress had not the requisite power. The objection that the laws and regulations, the violation of which is made punishable by the Acts of Congress, are State laws, and have not been adopted by Congress, is no sufficient answer to the power of Congress to impose punishment. It is true that Congress has not deemed it necessary to interfere with the duties of the ordinary officers of election, but has been content to leave them as prescribed by State laws. It has only created additional sanctions for their performance, and provided means of supervision in order more effectually to secure such performance. The imposition of punishment implies a prohibition of the act punished. The State laws which Congress sees no occasion to alter, but which it allows to stand, are in effect adopted by Con- gress. It simply demands their fulfilment. Content to leave the laws as they are, it is not content with the means provided for their en- ^ forcement. It provides additional means for that purpose ; and we think it is entirely within its constitutional power to do so. It is simply the exercise of the power to make additional regulations. That the duties devolved on the officers of election are duties which they owe to the United States as well as to the State, is further evinced by the fact that they have always been so regarded by the House of Representatives itself. In most cases of contested elections, the con- duct of these officers is examined and scrutinized by that body as a CHAP. III.] EX PARTE SIEBOLD. 329 matter of right ; and their failure to perform their duties is often made the ground of decision. Their conduct is justly regarded as subject to the fullest exposure ; and the right to examine them personally, and to inspect all their proceedings and papers, has always been main- tained. This could not be done, if the officers were amenable only to the supervision of the State government which appointed them. si^ Another objection made is, that, if Congress can impose penalties for violation of State laws, the officer will be made liable to double punishment for delinquency, — at the suit of the State, and at the suit of the United States. But the answer to this is, that each govern- ment punishes for violation of duty to itself only. Where a person owes a duty to two sovereigns, he is amenable to both for its per- formance ; and either may call him to account. Whether punish- ment inflicted by one can be pleaded in bar to a charge by the other for the same identical act, need not now be decided ; although consid- erable discussion bearing upon the subject has taken place in this court, tending to the conclusion that such a plea cannot be sustained. lu reference to a conviction under a State law for passing counter- feit coin, which was sought to be reversed on the ground that Congress had jurisdiction over that subject, and might inflict punishment for the same offence, Mr. Justice Daniel, speaking for the court, said : " It is almost certain that, in the benignant spirit in which the institutions both of the State and Federal systems are administered, an offender who should have suffered the penalties denounced by the one would not be subjected a second time to punishment by the other for acts essen- tially the same, — unless, indeed, this might occur in instances of pecu- liar enormity, or where the public safety demanded extraordinary rigor. But, were a contrary course of policy or action either probable or usual, this would by no means justify the conclusion that offences fall- ing within the competency of different authorities to restrain or punish ^ them would not properly be subjected to the consequences which those authorities might ordain and affix to their perpetration." Fox v. The State of Ohio, 5 How. 410. The same judge, delivering the opinion of the court in the case of United States v. Marigold (9 How. 569) where a conviction was had under an Act of Congress for bringing counter- feit coin into the country, said, in reference to Fox's Case : "With the view of avoiding conflict between the State and Federal juris- dictions, this court, in the case of Fox v. State of Ohio, have taken care to point out that the same act might, as to its character and ten- dencies, and the consequences it involved, constitute an offence against both the State and Federal governments, and might draw to its com- mission the penalties denounced by either, as appropriate to its char-"'" acter in reference to each. We hold this distinction sound ; " and the conviction was sustained. The subject came up again for discussion in the case of Moore v. State of Illinois (14 lb. 13), in which the plain- tiff in error had been convicted under a State law for harboring and secreting a negro slave, which was contended to be properly an offence 330 EX PARTE SIEBOLD. [CHAP. III. against the Uaited States under the fugitive-slave law of 1793, and not an offence against the State. The objection of double punishment was again raised. Mr. Justice Grier, for the court, said : " Every citizp.n of the United States is also a citizea. of a State or Territory. He may ,be said to owe allegiance to two sovereigns, and may be liable to pun- ishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both." Substantially the same views are expressed in United States v. Cruikshank (92 U. S. 542), referring to these eases ; and we do not well see how the doctrine they contain can be controverted.* A variety of instances may be readily suggested, in which it would be necessary or proper to apply it. Suppose, for example, a State judge having power under the naturalization laws to admit aliens to citizenship should utter false certificates of naturalization, can it be doubted that he could be in- dicted under the Act of Congress providing penalties for that offence, even though he might also, under the State laws, be indictable for ■forgery, as well as liable to impeachment? So, if Congress, as it might, should pass a law fixing the standard of weights and measures, and imposing a penalty for sealing false weights and false measures, but leaving to the States the matter of inspecting and sealing those used by the people, would not an offender, filling the oflflce of sealer under a State law, be amenable to the United States as well as to the State ? If the officers of election, in elections for representatives, owe a duty to the United States, and are amenable ti that government as well as to the State, — as we think they are, — then, according to the cases just cited, there is no reason why each should not establish sanc- tions for the performance of the duty owed to itself, though referring to the same act. To maintain the contrary proposition, the case of Commonwealth of_ Kentucky v. Dennison (24 How. 66) is confidently relied on by the petitioners' counsel. But there. Congress had imposed a duty upon the Governor of the State which it had no authority to impose. The en- forcement of the clause in the Constitution requiring the delivery of fugitives from service was held to belong to the government of the United States, to be effected by its own agents ; and Congress had no authority to require the Governor of a State to execute this duty. "^ We have thus gone over the principal reasons of a special character relied on by the petitioners for maintaining the general proposition for which they contend ; namely, that in the regulation of elections for representatives the national and State governments cannot co-operate, but must act exclusively of each other ; so that, if Congress assumes to regulate the subject at all, it must assume exclusive control of the whole subject. The more general reason assigned, to wit, that the nature of sovereignty is such as to preclude the joint co-operation of two sovereigns, even in a matter in which they are mutually concerned, is not, in our judgment, of suflScient force to prevent concurrent and CHAP. III.] EX PAKTE SIEBOLD. 331 harmonious action on the part of the national and State go vernmentsia the election of representatives. It is at most an argument ab inconveni- ente. There is nothing in the Constitution to forbid such co-operatiou in this ease. On the contrary, as ah'eady said, we think it clear that the clause of the Constitution relating to the regulation of such elections contemplates such co-operation whenever Congress deems it expedient to interfere merely to alter or add to existing regulations of the State. If the two governments had an entire equality of jurisdiction, there might be an intrinsic difficulty in such co-operation. Then the adop- tion by the State government of a system of regulations might ex- clude the action of Congress. By first taking jurisdiction of the subject, the State would acquire exclusive jurisdiction in virtue of a well-known principle applicable to courts having co ordinate jurisdic- tion over the same matter. But no such equality exists in the present case. The power of Congress, as we have seen, is paramount, and may be exercised at any time, and to any extent which it deems ex- pedient ; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith. As a general rule, it is no doubt expedient and wise that the opera- tions of the State and national governments should, as far as practi- cable, be conducted separately, in order to avoid undue jealousies and jars and conflicts of jurisdiction and power. But there is no reason for laying this down as a rule of universal application. It should never be made to override the plain and manifest dictates of the Con- stitution itself. We cannot yield to such a transcendental view of State sovereignty. The Constitution and laws of the United States * are the supreme law of the land, and to these every citizen of every State owes obedience, whether in his individual or official capacity. There are very few subjects, it is true, in which our system of govern- ment, complicated as it is, requires or gives room for conjoint action between tiie State and national sovereignties. Generally, the powers given by the Constitution to the government of the United States are given over distinct branches of sovereignty from which the State gov- ernments, either expressly or by necessary implication, are excluded. But in this case, expressly, and in some others, by implication, as we have seen in the case of pilotage, a concurrent jurisdiction is contem- plated, that of the State, however, being subordinate to that of the United States, whereby all question of precedency is eliminated. In what we have said, it must be remembered that we are dealing only with the subject of elections of representatives to Congress. If for its own convenience a State sees fit to elect State and county officers at the same time and in conjunction with the election of repre- sentatives. Congress will not be thereby deprived of the right to make regulations in reference to the latter. We do not mean to say, how- ever, that for any acts of the officers of election, having exclusive reference to the election of State or county officers, they will be amenable to Federal jurisdiction ; nor do we understand that the 332 EX PARTE SIEBOLD. [CHAP. III. enactments of Congress now under consideration have any application to such acts. It must also be remembered that we are dealing with the question of power, not of the expediency of any regulations which Congress has made. That is not within the pale of our jurisdiction. In exercising the power, however, we are bound to presume that Congress has done so in a judicious manner ; that it has endeavored to guard as far as possible against any unnecessary interference with State laws and regulations, with the duties of State officers, or with local prejudices. It could not act at all so as to accomplish ady beneficial object in pre- venting frauds and violence, and securing the faithful performance of duty at the elections, without providing for the presence of officers and agents to carry its regulations into effect. It is also difHcult to see how it could attain these objects without imposing proper sanctions and penalties against offenders. The views we have expressed seem to us to be founded on such plain and practical principles as hardly to need any labored argument in their support. We may mystify anything. But if we take a plain ■* view of the words of the Constitution, and give to them a fair and obvious interpretation, we cannot fail in most cases of coming to a clear understanding of its meaning. We shall not have far to seek. We shall find it on the surface, and not in the piofound depths of speculation. The greatest difficulty in coming to a just conclusion arises from mistaken notions with regard to the relations which subsist between the State and national governments. It seems to be often overlooked that a national constitution has been adopted in this country, estab- lishing a real government therein, operating upon persons and territory and things ; and which, moreover, is, or should be, as dear to every American citizen as his State government is. Whenever the true con- ception of the nature of this government is once conceded, no real diffi- culty will arise in the just interpretation of its powers. But if we allow ourselves to regard it as a hostile organization, opposed to the proper sovereignty and dignity of the State governments, we shall continue to be vexed with difficulties as to its jurisdiction and authority. No greater jealousy is required to be exercised towards this government in reference to the preservation of our liberties, than is proper to be ex- ercised towards the State governments. Its powers are limited in number, and clearly defined ; and its action within the scope of those powers is restrained by a sufficiently rigid bill of rights for tlie pro- tection of its citizens from oppression. The true interest of the people of this country requires that both the national and State governments should be allowed, without jealous interference on either side, to exer- cise all the powers which respectively belong to them according to a fair and practical construction of the Constitution. State rights and the rights of the United States should be equally respected. Both are ^ essential to the preservation of our liberties and the perpetuity of our CHAP. III.] EX PARTE SIEBOLD. 333 institutions. But in endeavoring to vindicate the one, we should not allow our zeal to nullify or impair the other. Several other questions bearing upon the present controversy have been raised by the counsel of the petitioners. Somewhat akin to the argument which has been considered is the objection that the deputy marshals authorized by the Act of Congress to be created and to attend the elections are authorized to keep" the peace ; and that this is a duty which belongs to the State authorities alone. It is argued that the preservation of peace and good order in society is not within the ^ powers confided to the government of the United States, but belongs exclusively to the States. Here again we are met with the theory that the government of the United States does not rest upon the soil and territory of the country. We think that this theory is founded on an entire misconception of the nature and powers of that government. We hold it to be an incontrovertible principle, that the government of the United States may, by means Of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power T to command obedience to its laws, and hence the power to keep the peace to that extent. This power to enforce its laws and to execute its functions in all places does not derogate from the power of the State to execute its laws at the same time and in the same places. The one does not exclude the other, except where both cannot be executed at the same '^ time. In that case, the words of the Constitution itself show which is to yield. " This Constitution, and all laws which shall be made in pursuance thereof, . . . shall be the supreme law of the land." This concurrent jurisdiction which the national government neces- sarily possesses to exercise its powers of sovereignty in all parts of the United States is distinct from that exclusive power which, by the First Article of the Constitution, it is authorized to exercise over the District of Columbia, and over those places within a State which are purchased by consent of the legislature thereof, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings. There its jurisdiction is absolutely exclusive of that of the State, unless, as is sometimes stipulated, power is given to the latter to serve the ordi- nary process of its courts in the precinct acquired. ^Vithout the concurrent sovereignty referred to, the national govern- ment would be nothing but an advisory government. Its executive ^ power would be absolutely nullified. Why do we have marshals at all, if they cannot physically lay their hands on persons and things in the performance of their proper duties ? What functions can they perform, if they cannot use force? In exe- cuting the processes of the courts, must they call on the nearest con- stable for protection? Must they rely on him to use the requisite compulsion, and to keep the peace whilst they are soliciting and en- treating the parties and bystanders to allow the law to take its course ? 334 EX PARTE SIEBOLD. [CHAP. III. This is the necessary consequence of the positions that are assumed. If we indulge in such impracticable views as these, and keep on refining and re-refining, we shall drive the national government out of the United States, and relegate it to the District of Columbia, or perhaps to some foreign soil. We siiall bring it back to a condition of greater helplessness than that of the old Confederation. The argument is based on a strained and impracticable view of the ^■nature and powers of the national government. It must execute its powers, or it is no government. It must execute them on the land as well as on the sea, on things as well as ob persons. And, to do this, it must necessarily have power to command obedience, preserve order, and keep the peace ; and no person or power in this land has the right to resist or question its authority, so long as it keeps within the bounds of its jurisdiction. Without specifying other instances in which this power to preserve order and keep tlie peace unquestionably exists, take the very case in hand. The counsel for the petitioners concede that Congress may, if it sees fit, assume the entire control and regula- tion of the election of representatives. This would necessarily involve the appointment of the places for holding the polls, the times of voting, and the oflficers for holding the election ; it would require the regula- tion of the duties to be performed, the custody of the ballots, the mode of ascertaining the result, and every other matter relating to the sub- ject. Is it possible that Congress could not, in that case, provide for keeping the peace at such elections, and for arresting and punishing those guilty of breaking it? If it could not, its power would be but a shadow and a name. But, if Congress can do this, where is the differ- ence in principle in its making provision for securing the preservation of the peace, so as to give to every citizen his free right to vote with- out molestation or injury, when it assumes only to supervise the regu- lations made by the State, and not to supersede them entirely? In our judgment, thei-e is no difference ; and, if the power exists in the one case, it exists in the other. The next point raised is, that the Act of Congress proposes to operate on oflScers or persons authorized by State laws to perform certain duties under them, and to require them to disobey and disregard State laws when they come in conflict with the Act of Congress ; that ■^ it thereby of necessity produces collision, and is therefore void. This point has been already fully considered. We have shown, as we think, that, where the regulations of Congress conflict with those of the State, it is the latter which are void, and not the regulations of Congress ; and that the laws of the State, in so far as they are inconsistent with the laws of Congress on the same subject, cease to have effect as laws. . . . Application denied. Mr. Justice Clifford and Mr. Justice Field dissented. CHAP, ni.] IN EE NEAGLE. 335 In ek NEAGLE. Supreme Ooukt of the Uotted States. 1889. [135 U. S. 1.] Mr. Justice Miller, on behalf of the court, stated the case as follows : — This was an appeal by Cunningham, sheriff of the county of San Joaquin, in the State of California, from a judgment of the Circuit Court of the United States for the Northern District of California, discharging David Neagle from the custody of said sheriff, who held him a prisoner on a charge of murder. On the 16th day of August, 1889, there was presented to Judge. Sawyer, the Circuit Judge of the United States for the Ninth Circuit, embracing the Northern District of California, a petition signed David Neagle, deputy United States marshal, by A. L. Farrish on his behalf This petition represented that the said Farrish was a deputy marshal duly appointed for the Northern District of California by J. C. Franks, who was the marshal of that district. It further alleged that David Neagle was, at tlie time of the occurrences recited in the petition and at the time of filing it, a duly appointed and acting deputy United States marshal for tiie same district. It then proceeded to state that said Neagle was imprisoned, confined, and restrained of his liberty in the county jail in San Joaquin County, in the State of California, by Thonias Cunningham, sherifl' of said county, upon a charge of mur- der, under a warrant of arrest, a copy of which was annexed to the petition. The warrant was as follows : — " In the Justice's Court of Stockton Township. " State of California., 1 County of San Joaquin, j " The People of the State of California to any sheriff', constable, marshal, or policeman of said State or of the count}' of San Joaquin : " Information on oath having been this day laid before me by Sarah A. Terry that the crime of murder, a felony, has been committed within said county of San Joaquin on the 14th day of August, a.d. 1889, in this, that one David S. Terry, a liuman lieing then and there being, was vvilfulk, unlawfulh', feloniously, and with malice aforethought shot, killed, and murdered, and accusing Stephen J. PMeld and David Neagle thereof: Yoci are therefore commanded forthwith to a:rrest the above- named Stephen J. Field ' and David Neagle and bring them before me, ^ The Governor of California, on learning that a warrant had been issued for the arrest of Mr. Justice Field, promptly wrote to the Attorney-General of the State, urging " the propriety of at once instructing the District Attorney of San Joaqiiin County to dismiss the unwarranted proceeding against him," as his arrest " would 336 IN RE NEAGLE. [CHAP. III. at m}' office, in the cit}' of Stockton, or, in ease of mj- absence or in- ability to act, before tlie nearest and most accessible' magistrate in the county. " Dated at Stockton this 14th daj- of August, a.d. 1889. « H. V. J. Swain, " Justice of the Peace. "The defendant, David Neagle, having been brought before me on this warrant, is committed for examination to the sheriff of San Joaquin County. California. "Dated August 15, 1889. ♦ H. V. J. Swain, ' ' Justice of the Peace." The petition then recited the circumstances of a rencontre between said Neagle and David S. Terry, in which the latter was instantly killed by two shots from a revolver in the hands of the former. The circumstances of this encounter and of what led to it will be considered with more particularit}- hereafter. The main allegation of this petition was that Neagle, as United States deputy marshal, acting under the orders of Marshal Franks, and in pursuance of instructions from the Attorney-General of the United States, had, in consequence of an an- ticipated attempt at violence on the part of Terry against the Honor- able Stephen J. Field, a justice of the Supreme Court of the United States, been in attendance upon said justice, and was sitting by his side at a breakfast table when a murderous assault was made by Terry on Judge Field, and in defence of the life of the judge the homicide was committed for which Neagle was held b}' Cunningham. The allegation was very distinct that Justice Field was engaged in the discharge of his duties as circuit justice of the United States for that circuit, having held court at Los Angeles, one of the places at which the court is by law held, and, having left that court, was on his way to San Francisco for the purpose of holding the Circuit Court at that place. The allegation was also very full that Neagle was directed by Marshal Franks to ac- company him for the purpose of protecting him, and that these orders of Franks were given in anticipation of the assault which actually occurred. It was also stated, in more general terms, that Marshal Neagle, in killing Terrj- under the circumstances, was in the discharge of his duty as an officer of the United States, and was not, thercTfore, guilty of a murder, and that his imprisonment under the warrant held by Sheriff Cunningham was in violation of the laws and Constitution of the United States, and that he was in custody for an act^done in pursuance of the laws of the United States. This petition being sworn to by Farrish, and presented to Judge Sawyer, he made the following order : — be a burning disgrace to the State unless disavowed." The Attorney-General as promptly re.'iponrted by advising the District Attorney that there was " no evidence to implicate Justice Field in said shooting," and that " public justice demands that the charge against him be dismissed; " which was accordingly done. CHAP. III.] IN EE NEAGLE. S37 " Let a writ of habeas corpus issue in pursuance of the praj'er of the within petition, returnable before the United States Circuit Court for the Northern District of California. " Sawyer, Circuit J%idge" The writ was accordingly issued and delivered to Cunningham, who made the following return : — "County of San JoAQniN, StaU of California, " Sheriff's Office. " To the honorable Circuit Court of the United States for the Northern District of California : " I hereby certify and return that before the coming to me of the annexed writ of habeas corpus the said David Neagle was committed to my custody, and is detained b3' me b3' virtue of a warrant issued out of tlie justice's court of Stockton township, State of California, county of San Joaquin, and bj' the indorsement made upon said warrant. Copy of said warrant and indorsement is annexed hereto and made a part of this return. Nevertheless, I have the body of the said David Neagle before the honorable court, as I am in the said writ commanded. " August 17, 1889. Thomas Cunningham, " Sheriff San Joaquin County, California." Various pleadings and amended pleadings were made which do not tend much to the elucidation of the matter before us". Cunningham filed a demurrer to the petition for the writ of habeas corpus, and Neagle filed a traverse to the return of the sheriff, which was ac- companied by exhibits, the substance of which will be hereafter con- sidered when the cas8 coraes to be examined upon its facts. The hearing in the Circuit Court was had before Circuit Judge Sawyer and District Judge Sabin. The sheriff, Cunningham, was represented by G. A. Johnson, Attorney-General of the State of California, and other counsel. A large body of testimony, documen- tary and otherwise, was submitted to the court, on which, after a full consideration of the subject, the court made the following order : " In the Matter of David Neagle, on habec(,s corpus. " In the above-entitled matter, the court having heard the testimony introduced on behalf of the petitioner, none having been offered for the respondent, and also the arguments of the counsel for petitioner and respondent, and it appearing to the court that the allegations of the petitioner in his amended answer or traverse to the return of the sherifE of San Joaquin County, respondent herein, are true, and that the prisoner is in custody for an act done in pursuance of a law of the United States, and in custody in violation of the Constitution and laws of the United States, it is therefore ordered that petitioner be, and he is hereby, dischai-ged from custod3'.'' VOL. I. — 22 338 IN EE NEAGLE. [OHAP. III. From that order an appeal was allowed which brought the case to this court, accompanied by a voluminous record of all the matters ■which were before the court on tlie hearing. Z. Montgomery, G. A. Johnson, Attorney-General of the State of California, Samuel Shellabarger, and Jeremiah M. Wilson, for the appellant. Attorney-General Miller, and Joseph H. Choate (with whom was James C. Carter on the brief), for the appellee. Mr. Justice Miller, after stating the case as above, delivered the opinion of the court. If it be true, as stated in the order of the court discharging the prisoner, that he was held " in custody Tor an act done in pursuance of a law of the United States, and in custod3- in violation of the Con- stitution and laws of the United States," there does not seem to be any doubt that, under the statute on that subject, he was properly dis- charged by the Circuit Court. . . . These are the material circumstances produced in evidence before the Circuit Court on the hearing of this habeas corpus case. It is but a shorf sketch of a history which is given in over five hundred pages in the record, but we think it is sufficient to enable us to apply the law of the case to the question before us. Without a more minute discussion of this testimony, it produces upon us the conviction of a settled purpose on the part of TeiMT and his wife, amounting to a conspiracy, to mur- der Justice Field. And we are quite sure that if Neagle had been merely a brother or a friend of Judge Field, travelling with him, and aware of all the previous relations of Terrj- to the judge, — as he was, — of his bitter animosity, his declared purpose to have revenge even to the point of killing him, he would havei been justified in what he did in defence of Mr. Justice Field's life, and possibl}- of his own. But such a justification would be a proper subject for consideration on a trial of the case for murder in the courts of the State of California, and there exists no authority in the courts of the United States to dis- charge the prisoner while held in custody \>y the State authorities for this offence, unless there be found in aid of the defence of the prisoner some element of power and authority asserted under the government of the United States. . . . We have no doubt that Mr. Justice Field when attacked by Terry was engaged in the discharge of his duties as Circuit Justice of the , Ninth Circuit, and was entitled to all the protection under those cir- ' cumstances which the law could give him. It is urged, however, that there exists no statute authorizing any such protection as that which Neagle was instructed to give Judge Field in the present case, and indeed no protection whatever against a vindictive or malicious assault growing out of the faithful discharge of his official duties , and tliat the language of section 753 of the Re- vised Statutes, that the party seeking the benefit of the writ of habeas corpus must in this connection show that he is " in custody for an act * done or omitted in pursuance of a law of the United States," makes it CHAP. III.] IN RE NEAGLE. 339 necessary that upon this occasion it should be shown that the act for which Neagle is imprisoned was done by virtue of an Act of Con- gress. It is not supposed that any special Act of Congress exists which authorizes the marshals or deputy marshals of the United States in express terms to accompany the judges of the Supreme Court through their circuits, and act as a body-guard to them, to defend them against malicious assaults against their persons. But we are of opinion that this view of the statute is an unwarranted restriction of the meaning of a law designed to extend in a liberal manner the benefit of the writ of.^ habeas corpus to persons imprisoned for the performance of their dut}'. And we are satisfied that if it was the duty of Neagle, under the cir- cumstances, a dut^- whicli could only arise under the laws of the United States, to defend Mr. Justice Field from a murderous attack upon hiin, he brings himself within the meaning of the section we have recited. This view of the subject is confirmed by the alternative provision, that he must be 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." In the view we take of the Constitution of the United States, any obligation fairly and properly inferrible from that instrument, or any duty of the marshal to be derived from tiie general scope of his duties under the laws of the United States, is "a law " within the meaning of this phrase. It would be a great reproach to the system of government of the United States, declared to be within its sphere sovereign and supreme, if there is to- be found within the domain of its powers no means of protecting the judges, in the conscientious and faithful dis- cliarge of their duties, from the malice and hatred of those upon whom their judgments may operate unfavorably. It has in modern times become apparent that the physical health of the community is more eflflciently promoted by hj-gienic and preventive means, than by the skill which is applied to the cure of disease after it has become fully developed. So also the law, which is intended to pre- vent crime, in its general spread among the community, b}- regulations, police organization, and otherwise, which are adapted for the protection of tlie lives and property of citizens, for the dispersion of mobs, for the arrest of thieves and assassins, for the watch which is kept over the community, as well as over this class of people, is more efficient than punishment of crimes after the}' have been committed. If a person in the situation of Judge Field could have no other guarantee of his personal safety, while engaged in the conscientious discharge of a disagreeable duty, than the fact that if he was murdered his murderer would be subject to the laws of a State and by those laws could be punished, the security would be ver}- insufficient. The plan which Terry and wife had in mind of insulting him and assaulting him and drawing him into a defensive pliysical contest, in the course of which they would slay him, shows the little value of such remedies. 340 IN RE NEAGLE. [CHAP. lit. We do not believe that the government of the United States is thus \ inefficient, or that its Constitution and laws have left the high officers of the government so defenceless and unprotected. . . . Whei-e, tlien, are we to look for the protection which we have shown Judge Field was entitled to when engaged in the discharge of his official duties? Not to the courts of the United States ; because, as has been more than once said in this court, in the division of the powers of gov- ernment between the three great departments, executive, legislative and judicial, the judicial is the weakest for the purposes of self-protection and for the enforcement of the powers which it exercises. The minis- terial officers through whom its commands must be executed are mar- shals of the United vStates, and belong emphatically' to the executive department of the government. They are appointed b}- the President, with the advice and consent of the Senate. They are removable from office at his pleasure. They are subjected by Act of Congress to the supervision and control of the Department of Justice, in the hands of one of the cabinet officers of the President, and their compensation is provided by Acts of Congress. The Same may be said of the district attorneys of the United States, who prosecute and defend the claims of the government in the courts. The legislative branch of the government can onlj- protect the judicial officers by the enactment of laws for that purpose, and' the argument we are now combating assumes that no such law has been passed by Congress. If we turn to the executive department of the government, we find a very different condition of affairs. The Constitution, section 3, Article 2, declares that the President " shall take care that the laws be faith- fully executed," and he is provided with the means of fulSUing this "obligation by his authoritj' to commission all the officers of the United States, and, b\' and with the advice and consent of the Senate, to ap- point the most important of them and to fill vacancies. He is declared to 1)6 commander-in-chief of the armj- and nav3' 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 the creation by Acts of Congress, of executive departments, which have varied in number from four or Ave 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 en- abled to fulfil the duty of his great department, expressed in the phrase that " he shall take care that the laws be faithfully executed." Is this dutj' limited to the enforcement of Acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitu- tion itself, our international relations, and all the protection implied by the nature of the government under the Constitution? One of the most remarkable episodes in the historj' of our foreign CHAP. III.] IN RE NEAGLE. 341 relations, and which Las become an attractive historical incident, is the case of Martin Koszta, a native of Hungary, who, though not fully a naturalized citizen of the United States, had in due form of law made Lis declaration of intention to become a citizen. While in Smyrna he was seized by command of the Austrian consul-general at that place, and carried on board tlie Hussar, an Austrian vessel, where he was Leld in close conflnement. Captain IngraLara, in command of the American sloop-of-war St. Louis, arriving in port at that critical period, and ascertaining that Koszta had with him his naturalization papers, demanded liis surrender to him, and was compelled to train his guns upon the Austrian vessel before his demands were complied with. It was, however, to prevent bloodshed, agreed that Koszta should be placed in the hands of the French consul subject to tLe result of diplomatic negotiations between Austria and tbe United States. The celebrated correspondence between Mr. Marcj', Secretary of State, and Chevalier Htllsemann, the Austrian minister at Washington, which arose out of this affair and resulted in the release and restoration to liberty of Koszta, attracted a great deal of public attention, and the position assumed by Mr. Marcy met the approval of the country- and of Con- gress, who voted a gold medal to Captain Ingraham for his conduct in the affair. Upon wLat Act of Congress tLen existing can any one lay his finger in support of the action of our government in this matter? So, if the President or the Postmaster-General is advised that the mails of the United States, possibly carrj-ing treasure, are liable to be robbed and the mail carriers assaulted and murdered in any particular region of country, who can doubt the authority' of the President or of one of tlie executive departments under him to make an order for the i protection of the mail and of the persons and lives of its carriers, by doing exactly what was done in the case of Mr. Justice Field, namely, pio- viding a sufficient guard, whether it be by soldiers of the army or lij- marshals of the United States, with a posse comitatus properly armed and equipped, to secure the safe performance of the duty of carrying the mail wherever it may be intended to go? The United States is the owner of millions of acres of valuable pub- lic land, and has been the owner of much more which Jt has sold. Some of these lands owe a large part of their value to the forests which grow upon them. These forests are liable to depredations bj' people living in the neighborhood, known as timber thieves, who make a living by cutting and selling such timber, and who are trespassers. But until quite recently, even if there be one now, there was no statute authorizing any preventive measures for the protection of this valu- able public propertj'. Has the President no authority to place guards upon the public territory to protect its timber? No authority to seize the timber when cut and found upon the ground? Has he no power , to take any measures to protect this vast domain ? Fortunately we find this question answered by this court in the case of Wells v. Nickles, 104 U. S. 444. That was a case in which a class of men appointed by 342 ~ IN KE NEAGLE. [CHAP. III. local land officers, under instructions from the Secretaiy of the Interior, having found a large qiiantit)' of this timber cut down from the forests of the United States and lying where it was cut, seized it. The ques- tion of tlie title to this pioperty coming in controversj' between Wells and Nickles, it became essential to inquire into the authority- of these timber agents of the government thus to seize the timber cut by tres- passers on its lands. The court said : " The effort we have made to ascertain and fix the authority of these timber agents by any positive provision of law has been unsuccessful." But the court, notwithstand- ing tliere was no special statute for it, held that the Department of tlie Interior, acting under the idea of protecting from depredation timber on the lands of the government, had gradually come to assert the right to seize what is cut and taken away from them wherever it can be traced, and in aid of this the registers and receivers of the Land Office had, by instructions from the Secretar}' of the Interior, been constituted agents of the United States for tliese purposes, witli power to appoint special agents under themselves. And the court upheld the aulliority of the Secretary of tlie Interior to make these rules and regulations for the protection of the public lands. . . . We cannot doubt the power of the President to take measures for ^ the protection of a judge of one of the courts of the United States, who, while in the discharge of the duties of his office, is threatened with a personal attack which may probably result in his death, and we tliiuk it clear that wliere this protection is to be aiForded through the civil power, the Department of Justice is the proper one to set in motion the necessary means of protection. The correspondence already recited in this opinion between the marshal of the Northern District of California, and the Attornej'-General, and the district attorney' of the United States for that district, although prescribing no very specific mode of affording this protection by the Attorney-General, is sufficient, we think, to warrant the marshal in taking the steps which he did take, in making the provisions which he did make, for the protection and defence of Mr. Justice Field. But there is positive law investing the marshals and their deputies with powers which not only justify what Marshal Neagle did in this matter, but which imposed it upon him as a duty. . . . That there is a peace of the United States ; that a man assaulting a >^ judge of the United States while in the discharge of liis duties violates that peace ; that in such case the marshal of the United vStates stands in the same relation to tlie peace of the United States which the sheriff of the county does to the peace of the State of California; are ques- tions too clear to need argument to prove them. That it would be the duty of a sheriff, if one had been jjresent at this assault by Terry upon Judge Field, to prevent this breach of the peace, to prevent this assault, to prevent the murder which was contemplated by it, cannot be doubted. And if, in performing this duty, it became necessary for the protection of Judge Field, or of himself, to kill Terry, in a case where, CHAP. III.] LOGAN V. UNITED STATES. 343 like this, it was evidentl}- a question of the choice of who should be killed, the assailant and violater of the law and disturber of the peace, or the unoffending man who was in his power, there can be no question of the authority of the sheriff to have killed Terr}-. So the marshiil of the United States, charged with the dut}- of protecting and guarding the judge of the United States court against this special assault upon his person and his life, being present at the critical moment, when prompt action was necessar}', found it to be his duty, a dut}' which he had no liberty to refuse to perform, to take the steps which resulted in Terr^-'s death. This duty was imposed on him by the section of the Revised Statutes which we have recited, in connection with the powers ' conferred b}' the State of California upon its peace officers, which be- come, by this statute, in proper cases, transferred as duties to the marshals of the United States. . . . The result at which we have arrived upon this examination is, that in the protection of the person and the life of Mr. Justice Field while in the discharge of his official duties, Neagle was authorized to resist the attack of Terrj' upon him ; that Neagle was correct in the belief that without prompt action on his part the assault of Terry upon the judge would have ended in the death of the latter ; that such being his well-founded belief, he was justified in taking the life of Terry, as the only means of preventing the death of the man who was intended to be his victim ; that in taking the life of Terry, under the circumstances, he was acting under the authority of the law of the United States, and was justified in so doing ; and that he is not liable to answer in the courts of California on account of his part in that transaction. We therefore affirm the jndgment of the Circuit Court authoriz- ing his discharge from the custody of the sheriff of San Joaquin County. [The dissenting opinion of Mr. Justice Lamar, with whom Chief Justice Fuller concurred, is omitted.] In Logan v. United States, 144 U. S. 263 (1891), on error to the Circuit Court of the United States for the Northern District of Texas, where Logan and others had been indicted for the statutory offence of conspiracy to injure and oppress citizens of the United States in the free exercise of a right secured to them by the Constitution and laws "* of the United States and for murder in pursuance thereof, and were convicted of the conspiracy and dulj- sentenced, — exceptions were taken to various rulings and instructions. Me. Justice Gray (for the court) said: "The principal question in this case is whether the right of a citizen of the United States, in the custody of a United States mar- shal under a lawful commitment to answer for an offence against the United States, to be protected against lawless violence, is a right se- cured to him by the Constitution or laws of the United States, or ^ whether it is a right which can be vindicated only under the laws of the several States. 344 LOGAN V. UNITED STATES. [cHAP. Ill, "This question is presented by the record in several forms. It was raised in the first instance by the defendants ' excepting to ' and moving to quash the indictment. A motion to quash an indictment is ordina- rilj' addressed to the discretion of the court, and therefore a refusal to quash cannot generally be assigned for error. United States v. JRosen- burgh, 7 Wall. 580. United States v. Hamilton, 109 U. S. 63. But the motion in this case appears to have been intended and understood to include an exception, which, according to the practice in Louisiana and Texas, is equivalent to a demurrer. And the same question is dis- tinctly presented by the judge's refusal to instruct the jury as requested, and b3- the instructions given by him to the jury. " Upon this question, the court has no doubt. As was said b3- Chief Justice Marshall, in the great case of McCulloch v. Maryland, 'The government of the Union, though limited in its powers, is supreme witi^in its sphere of action.' ' No trace is to be found in the Constitu- tion of an intention to create a dependence of the government of the Union on those of the States, for the execution of the great powers as- signed to it. Its means are adequate to its ends ; and on those means alone was it expected to rel}' for the accomplishment of its ends. To impose on it the necessity- of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a de- pendence on other governments, which might disappoint its most impor- tant designs, and is incompatible with the language of the Constitution.' 4 Wheat. 316, 405, 424. "Among tlie powers which the Constitution expresslj' confers upon Congress is tlie power to make all laws necessary and proper for carrying into execution the powers specificallj- granted to it, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof. In the exercise of this general power of legislation. Congress may use any means appearing to it most eligible and appropriate, which are adapted to the end to be accomplished, and are consistent with the letter and the spirit of the Constitution. McCul- loch V. Maryland, 4 Wheat. 316, 421 ; Juilliard v. Greenman, 110 U. S. 421, 440, 441. " Although the Constitution contains no grant, general or specific, to Congress of the power to provide for the punishment of crimes, except piracies and felonies on the high seas, offences against the law of na- tions, treason, and counterfeiting the securities and current coin of the United States, no one doubts the power of Congress to provide for the punishment of all crimes and offences against the United States, whether committed within one of the States of the Union, or within territory over which Congress has plenary and exclusive jurisdiction. "To accomplish this end. Congress has the right to enact laws for the arrest and commitment of those accused of any such crime or of- j/ fence, and for holding them in safe custody until indictment and trial ; and persons arrested and held pursuant to such laws are in the excla- CHAP. III.] LOGAN V. UNITED STATES. 345 sive custod3' of the United States, and are not subject to the judicial process or executive warrant of any State. Ableman v. Booth, 21 How. 506; Tarble's Case, 13 Wall. 397; JSobb v. Connolly, 111 U. S. 624. The United States, having the absolute right to hold such prisoners, have an equal duty to protect them, while so held, against assault or injury from any quarter/ The existence of that duty on the part of the government necessarily implies a corresponding right of the prisoners to be so protected ; and this right of the prisoners is a right secured to them by the Constitution and laws of the United States. "The statutes Of the United States" have provided that any person accused of a crime or offence against the United States may by any United States judge or commissioner of a Circuit Court be arrested and confined, or bailed, as the case may be, for trial before the court of the United States having cognizance of the offence ; and, if bailed, may be arrested b}- his bail, and delivered to the marshal or his deput}-, before an}- judge or other officer having power to commit for the offence, and be thereupon recommitted to tlie custody of the marshal, to be held until discharged b}' due course of law. Rev. Stat. §§ 1014, 1018. They have also provided that all the expenses attendant upon the trans- 1 portation from place to place, and upon the temporary or permanent confinement, of persons arrested or committed under the laws of the United States, shall be paid out of the Treasury of the United States ; and that the marshal, in case of necessity, maj' provide a convenient place for a temporary jail, and ' shall malse such other provision as he ma}- deem expedient and necessary for the safe-keeping of the prisoners arrested or committed under the authority of the United States, until permanent provision for that purpose is made by law.' Rev. Stat. §§ 5536-5538. "In the case at bar, the indictments alleged, the evidence at the trial tended to prove, and the jury have found by their verdict, that while Charles Marlow and five others, citizens of the United States, were in the custody and control of a deputy marshal of the United States under writs of commitment from a commissioner of the Circuit Court, in default of bail, to answer to indictments for an offence against the laws of the United States, the plaintiffs in error conspired to injure and oppress them in the free exercise and enjoyment of the right, se- cured to them by the Constitution and laws of the United States, to be protected, while in such custody and control of the deputy marshal, against assault and bodily harm, until the}' had been discharged by due jjrocess of the laws of the United States. " If, as some of the evidence introduced by the government tended to show, the deputy marshal and his assistants made no attempt to protect the prisoners, but were in league and collusion with the con- spirators, that does not lessen or impair the right of protection, secured to the prisoners b}' the Constitution and laws of the United States. "The prisoners were in the exclusive custody and control of the United States, under the protection of the United States, and in the 346 LOGAN V. UNITED STATES. [CHAP. III. ■^ peace of the United States. There was a co-extensive dut}' on the part of the United States to protect against lawless violence persons so within their custody, control, protection, and peace ; and a correspond- ing right of those persons, secured bj- the Constitution and laws of the United States, to be so protected bj- the United States. If the officers of the United States, charged with the performance of the duty, in be- half of the United States, of affording that protection and securing tliat V right, neglected or violated their duty, the prisoners were not the less under the shield and panoply of the United States. "The cases heretofore decide'd by this^oiirt, and cited in behalf of the plaintiffs in error, are in no waj' inconsistent with these views, but, on the contrary, contain much to support them. The matter considered in each of those cases was whether the particular right there in question was secured by the Constitution of the United States, and was within the Acts of Congress. But the question before us is so important, and the learned counsel for the plaintiffs in error have so strongly relied on those cases, that it is fit to review them in detail. . . . " The whole scope and effect of tliis series of decisions is that, while certain fundamental rights, recognized and declared, but not granted or created, in some of the amendments to the Constitution, are thereby guaranteed onl}- against violation or abridgment b}' the United States, or by the States, as the case maj' be, and cannot therefore be affirma- tively enforced by Congress against unlawful acts of individuals ; yet that everj' 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 exer- cise of the correlative duty of protection, 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. " Among the particular rights which this court, as we have seen, has adjudged to be secured, expressly or bj- implication, bj- the Constitution and laws of the United States, and to be within section 5508 of the Revised Statutes, providing for the punishment of conspiracies hy indi- viduals to oppress or injure citizens in the free exercise and cnjo^-ment of rights so secured, are the political right of a voter to be protected from violence while exercising his right of suffrage under the laws of the United States ; and the private right of a citizen, having made a homestead entry, to be protected from interference while remaining in the possession of the land for the time of occupanc3- which Congress has enacted shall entitle him to a patent. "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 establishment by the Constitution itself of a national government, paramount and supreme within its sphere of action. Anj- 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 dutj' to protect against unlawful interference its prisoners CHAP. III.] LOGAN V. UNITED STATES. 347 SO held, as well as its executive and judicial oflEicers charged with keep- ing and trying them. "In the verj^ recent Case of JVeae/le, 135 U. S. 1, at October Term, 1889, it was held that, although there was no express Act of Congress authorizing the appointment of a deputj' marshal or other ofJficer to at- tend a justice of this court while travelling in his circuit, and to protect him against assault or injurj-, it was within the power and the dut^' of the executive department to protect a judge of any of the courts of the United States, when there was just reason to believe that he would be in personal danger while executing the duties of his office ; that an as- sault upon such a judge, while in discharge of his official duties, was a breach of the peace of the United States, as distinguished from the peace of the State in which the assault took place ; and that a deputy marshal of the United States, specially charged with the duty of pro- tecting and guarding a judge of a court of the United States, had im- posed upon him the dut}' of doing whatever might be necessary for that purpose, even to the taking of human life. " In delivering judgment, Mr. Justice Miller, repeating the language used by Mr. Justice Bradley speaking for the court in £Jx parte Siebold, 100 U. S. 371, 394, said : ' It is argued that the preservation of peace and good order in society is not within the powers confided to the gov- ernment of the United States, but belongs exclusively to the States. Here again we are met with the theory that the government of the United States does not rest upon the soil and territory of the country. We think that this theory is founded on an entire misconception of the na- ture and powers of that government. We hold it to be an incontro- vertible principle, that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent.' 135 U. S. 60. After further discussion of that question, and of the powers of sheriffs in the State of California, where the transaction took place, Mr. Justice Miller added : 'That there is a peace of the United States ; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace ; that in such case the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the State of California ; are questions too clear to need argument to prove them.' 135 U.S. 69. Crhe United States are bound to protect against lawless violence all persons in their service or custody in the course of the administration of justice. This duty and the correlative right of protection are not limited to the magistrates and officers charged with expounding and executing the laws, but apply, with at least equal force, to those held in cijstody on accusation of crime, and deprived of all means of self- defence^ 348 HEPBUKN AND DUNDAS V. ELLZEY. [OHAP. Ill, " For these reasons, we are of opinion tliat the crime of which the plaintiffs in error were indicted and convicted was within the reach of the constitutional powers of Congress, and was covered by section 6508 of the Kevised Statutes." . . . HEPBURN AND DUNDAS v. ELLZEY. » Supreme Court of the United States. 1804. [2 Cranch, 445 ; 1 Curtis's Decisions, 520.] This case came before the court upon a certificate of division of opinion of the judges of the Circuit Court, for the District of Virginia. The question was whether Hepburn and Duudas, the plaintiffs in this cause, who are citizens and residents of the District of Columbia, and are so stated in the pleadings, can maintain an action in this court against the defendant, who is a citizen and inhabitant of the Common- wealth of Virginia, and is also stated so to be in the pleadings, or whether, for want of jurisdiction, the said suit ought not to be dis- missed. Marshall, C. J., delivered the opinion of the court. The question in this case is, whether the plaintiffs, as residents of the District of Columbia, can maintain an action in the Circuit Court of the United States for the District of Virginia. This depends on the Act of Congress describing the jurisdiction of that court. That Act gives jurisdiction to the Circuit Courts in cases between a citizen of the State in which the suit is brought, and a citi- zen of another State. To support the jurisdiction in this case, there- fore, it must appear that Columbia is a State. On the part of the plaintiffs it has been urged that Columbia is a distinct political society ; and is, therefore, " a State," according to the definitions of writers on general law. This is true. But as the Act of Congress obviously uses the word "State" in reference to that term as used in the Constitution, it be- comes necessary to inquire whether Columbia is a State in the sense of that instrument. The result of that examination is a conviction that the members of the American confederacy only are the States contemplated in the Constitution. The House of Representati-ves is to be composed of members chosen by the people of the several States ; and each State shall have at least one representative. The Senate of the United States shall be composed of two senators from each State. Each State shall appoint, for the election of the executive, a number of electors equal to its whole number of senators and representatives. CHAP. III.] SEEi) ET AL. V. PITOT ET AL, 349 These clauses show that the word State is used in the Constitution as designating a member of the Union, and excludes from the term the signification attaclied to it by writers on the law of nations. When the same term which has been used plainly in this limited sense in the articles respecting the legislative and executive departments, is also employed in that which respects the judicial department, it must be understood as retaining the sense originally given to it. Other passages from the Constitution have been cited by the plaintiffs to show that the term State is sometimes used in its more enlarged sense. But on examining the passages quoted, they do not prove what was to be shown by them. It is true that as citizens of the United States, and of that particular district which is subject to the jurisdiction of Congress, it is extra- ordinary that the courts of the United States, which are open to aliens, and to the citizens of every State in the Union, should be closed upon them. But this is a subject for legislative, not for judicial consid- eration. The opinion to be certified to the Circuit Court is, that that court has no jurisdiction in the case.* In Sere et al. v. Fifot et al, 6 Cranch, 332 (1810), Marshall, C. J., for the court, said : " Whether the citizens of the Territory of Orleans are to be considered as the citizens of a State, within the meaning of the Constitution, is a question of some difficulty, which would be de- cided, should one of them sue in any of the circuit courts of the United States. The present inquiry is limited to a suit brought by or agamst a citizen of the Territory, in the District Court of Orleans. The power of governing and of legislating for a Territorj' is the inevi- ' As regards the mere power of Congress, the District of Columbia is supposed to be on the same footing as the Territories. It was formerly sometimes called the " Terri- tory of Columbia." " Has Congress a right to impose a direct tax on the District of Columbia 1 . . . The power, then, to lay and collect duties, imposts, and excises may be exercised, and must be exercised throughout the United States. Does this term designate the whole, or any particular portion of the American empire ? Certainly tliis question can admit of but one answer. It is the name given to our great republic, which is composed of States and Territories. The District of Columbia, or the terri- tory west of the Missouri, is not less within the United States than Maryland or Pennsylvania; and it is not less necessary, on the principles of our Constitution, that uniformity in the imposition of imposts, duties, and excises should be observed in the one than in the other. Since, then, the power to lay and collect taxes, which includes direct taxes, is obviously co-extensive with the power to lay and collect duties, imposts, and excises, and since tlie latter extends throughout the United States, it follows, that the power to impose direct taxes also extends throughout the United States." [The court held that a direct tax could be levied on the district.] Marshall, C. J. (for the court), in Loughborough v. Blake, 5 Wheat. 317 (1820). In Geofroy v. Uiggs, 133 U. S. 258 (1889), it was held that the District 'of Columbia is one of " the States of the Union," within the meaning of Article 7 of the Consular Convention with France, of Feb. 7, 1853, whereby certain rights are secured to French- men in " the States of the Union." — Ed. 350 AMERICAN INS. CO. V. CANTER. [CHAP. III. table consequence of the right to acquire and to hold territory-. Could this position be contested, the Constitution of the United States de-. dares that " Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." Accordingly, we find Congress pos- sessing and exercising the absolute and undisputed power of governing and legislating for the Territory' of Orleans. Congress has given them a legislative, an executive, and a judiciary, with such powers as it has been their will to assign to those departments respectively. In JVew Orleans v. Winter et al., 1 "VVIieat. 91 (1816), Marshall, C. J., for the court, said: " The proceedings of the court . . . are arrested in limine, by a question respecting its jurisdiction. In the case of Hepburn & Dundas v. Ellzey, this court determined, ou ma- ture consideration, that a citizen of tiie District of Coliimbia could not maintain a suit in tlie Circuit Court of tlie United States. That opinion is still retained. " It has been attempted to distinguish a Territory from the District of Columbia ; but the court is of opinion, that this distinction cannot be maintained. They ma}' differ in many respects, but neither of them is a Stale, in the sense in which that term is used in the Constitution. Every reason assigned for the opinion of the court, that a citizen of Columbia was not capable of suing in the courts of the United States, under the Judiciary Act, is equally applicable to a citizen of a Terri- tory. Gabriel Winter, then, being a citizen of the Mississippi Territor}', was incapable of maintaining a suit alone in the Circuit Court of Louisiana." ^ THE AMERICAN INSURANCE COMPANY et al. v. THREE HUNDRED AND FIFTY-SIX BALES OF COTTON, DAVID CANTER, CLAIMANT. Supreme Court of the United States. 1828. [1 Peters, 511. 7 Curtis's Decisions, 685.] Ogden, for the appellants [the plaintiffs] ; Whipple and Webster, contra. Marshall, C. J., delivered the opinion of the court. The plaintiffs filed their libel in this cause in the District Court of South Carolina, to obtain restitution of 356 bales of cotton, part of the cargo of tlie ship " Point a Petre ; " which had been insured by them ' These idlings [in Hepburn v. Ellzey and New Orleans v. Winter'] have never been disturbed, but the principle asserted has been acted upon ever since by the courts, when the point has arisen. — Milleb, J. (for the court), in Barney v. Baltimore, 6 Wall. 280, 287 (1867). — Ed. CHAP. III.] AMERICAN INS. CO. V. CANTER. 351 on a voyage from New Orleans to Havre de Grace, in France. The " Point a Petre" was wrectced on the coast of Florida, the cargo saved by the inhabitants, and carried into Key West, where it was sold for the purpose of satisfying the salvors ; by virtue of a decree of a court consisting of a notary and five jurors, which was erected by an Act of the territorial legislature of Florida. The owners abandoned to the underwriters, who having accepted the same, proceeded against the property, alleging that the sale was not made by order of a court com- petent to change the pi'opert}'. David Canter claimed the cotton as a lonafide purchaser, under the decree of a competent court; which awarded seventy-six per cent to the salvors on the value of the propertj' saved. The district judge pronounced the decree of the territorial court a nullity, and awarded restitution to the libellants of such part of the cargo as he supposed to be identified by the evidence, deducting there- from a salvage of fifty per cent. The libellants and claimant both appealed. The Circuit Court re- versed the decree of the District Court, and decreed the whole cotton to the claimant, with costs, on the ground that the proceedings of the court at Kej- West were legal, and transferred the propertj- to the purchaser. From this decree the libellants have appealed to this court. The cause depends mainlj- on the question whether the property in the cargo saved was changed by the sale at Key West. The con- formitj' of that sale to the order under which it was made has not been controverted. Its validity has been denied, on the ground that it was ordered by an incompetent tribunal. The tribunal was constituted by an Act of the territorial legislature of Florida, passed on tlie 4th July, 1823, which is inserted in the record. That Act purports to give the power which has been ex- ercised ; consequently, the sale is valid, if the territorial legislature was competent to enact the law. The coui'se which the argument has taken, will require that, in deciding tliis question, the court should take into view the relation in which Florida stands to the United States. The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties ; consequently, that government possesses the power of acquiring territory, either hy con- quest or by treaty. The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupa- tion, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded terri- tory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer of territory, it has never been held that the relations of the inhabitants with each otlier undergo any 352 AMERICAN INS. CO. V. CANTER. [cHAP. III. change. Their relations with their former sovereign are dissolved, and new relations are ei'eated between them and the government which has acquired their territory'. The same act which transfers their countr}', transfers the allegiance of those who remain in it; and the law, which maj- be denominated political, is necessarilj' changed, although that which regulates the intercourse and general conduct of individuals, remains in force until altered bj- the newlj- created power of the State. On the 2d of P^ebruarj, 1819, Spain ceded Florida to the United States. The 6tli article of the treaty of cession, 8 Stats, at Large, 252, contains the following provision: " The inhabitants of the territories which his Catholic Majest}' cedes to the United States b^- this treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of the privileges, rights, and immunities of the (titizens of the United States." This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, riglits, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power ; they do not share in the gov- ernment till Florida shall become a State. In the mean time, Florida continues to be a Territory of the United States, governed b^' virtue of that clause in the Constitution which empowers Congress "to make all needful rules and regulations respecting the territorj- or other property belonging to the United States." Perhaps the power of governing a Territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, ma}- result necessarily from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territorj-. Whichever may be the source wlienee the power is derived, the possession of it is unquestioned. In execution of it, Congress, in 1822, passed "an Act for the establishment of a territorial government in Florida," 3 Stats, at Large, 654, and on the 3d of March, 1823, passed another Act to amend the Act of 1822. Under this Act, the territorial legislature enacted the law now under consideration. . . . (jhe powers of the Territorial legislature extend to all rightful objects of legislation, subject to the restriction tiiat their laws shall not be "inconsistent with the laws and Constitution of the United States." As salvage is admitted to come within this description, the Act is valid unless it can be brought within the restriction, j The counsel for the libellants contend' that it is inconsistent with both the law and tlie Constitution ; that it is inconsistent with the provisions of the law by which the territorial government was created, and with the amcndatorj- Act of March, 1823. It vests, they say, in CHAP. III.] AMERICAN INS. CO. V. CANTER. 353 an inferior tribunal a jurisdiction which is, My those Acts, vested exclusively in the superior courts of the territory. . . . The question suggested by this view of the subject, on which the case under consideration must depend, is this : — Is tiie admiralty jurisdiction of the district courts of the United States vested in the superior courts of Florida, under tlie words of the 8th section, declaring that each of the said courts "shall, moreover, have and exercise the same jurisdiction within its limits, in all cases arising under tjie laws and Constitution of the United States," which was vested in the courts of the Kentucky district ? It is observable that this clause does not confer on the territorial courts ail the jurisdiction which is vested in the court of the Kentucky district, <^it that part of it only which applies to " cases arising under the laws and Constitution of the United States." Is a case of admi- ralt3' of this description^ The Constitution and'laws of the United States give jurisdiction to the district courts over all cases in admiralty ; but jurisdiction over the case does not constitute the case itself. We are, therefore, to inquire whether cases in admiralty and cases arising under the laws and Constitution of the United States are identical. If we have recourse to that pure fountain from which all the jurisdic- tion of the Federal courts is derived, we find language employed which cannot well be misunderstood. The Constitution declares that "the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall bo made, under their authority ; to all cases affecting am- bassadors, or other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction." The Constitution certainly contemplates these as three distinct classes of cases ; and, if they are distinct, the grant of jurisdiction over one of them does not confer jurisdiction over either of the other two. The discrimination made between them in the Constittition is, we think, conclusive against their identity. If it were not so, if this were a point open to inquiry, it would be difficult to maintain the proposition that thej' are the same, {k case in admiralty does not, in fact, arise under the Constitution or laws of the United States. These cases are as old as navigation itself; and the law, admiraltj- and mari- time, as it has existed for ages, is applied by our courts to the cases as they arise. It is not, then, to the 8th section of the territorial law that we are to look for the grant of admiralty and maritime jurisdiction to the territorial courts. Consequently, if that jurisdiction is exclusive, it is not made so by the reference to the District Court of Kentucky. It has been contended that, by the Constitution, the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction, and that the whole of this judicial power must be vested " in one supreme court and in such inferior courts as Congress shall from time to. time ordain and establish." Hence, it has been argued VOL. I. —23 354 AMERICAN INS. CO. V. CAKTER. [CHAP. III. that Congress cannot vest admiraltj- jurisdiction in courts created by the territorial legislature. We have onh- to pursue this subject one step further to perceive that this provision of the Constitution does not apply to it. The next sentence declares that '' the judges, both of the supreme and inferior courts, shall hold their offices during good behavior." The judges of the superior courts of Florida hold their offices for four years. These courts, then, are not constitutional courts, in which the judicial povrcr conferred by the Ccmstitution on the general government can be deposited. Thej' are incapable of i-eeeivi^g it. They are legislative courts, created in virtue of the general right of sovereignt\- which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the terri- tory 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 3d article of the Constitution, but is conferred bj- Congress, in the execution of those general powers which that body possesses over the Territories of the United States. Although admiralty jurisdiction can be exercised in the States in those courts only which are estab- lished in pursuance of the 3d article of the Constitution, the same limitation does not extend to the Territories. In legislating for them, Congress exercises the combined powers of the general and of a State Government. (We think, then, that the Act of the territorial legislature erecting the court by whose decree the cargo of the " Point a Petre " was sold, is not "inconsistent with the laws and Constitution of the United States," and is vali(|? Consequently, the sale made in pursuance of it changed the property, and the decree of the Circuit Court, awarding restitution of the property to the claimant, ought to be affirmed, with costs.' ' In the argument at the Bar, great attention has been paid to the meaning of the word ,'■ territory." Ordinarily, When the territory of a sovereign power is spoken of, it refers to that tract of country which is under the political jutisdiction of that sovereign power. Thus Chief .Justice Marshall (in United States v. Bevans, 3 Wheat. 386) says : " What, then, is the extent of jurisdiction which a State possesses? We answer, without hesi- tation, the jurisdiction of a State is coextensive with its territory." Examples might easily be multiplied of this use of tlie word, but they are unnecessary because it is familiar. But the word " territory " is not used in this broad and general sense in this clause of the Constitution. At the time of the adoption of the Cbnstitntion, the United States held u great tract of country northwest of the Ohio ; another tract, then of unknown extent, ceded by South Carolina ; and a confident expectation was then entertained, and afterwards realisied, that they then were or would become the owners of other great tracts,' claimed by North Carolina and Georgia. These ceded tracts lay within the limits of the United States, and out of the limits of any particular State ; and the cessions embraced the civil and political jurisdiction, and so much of the soil as had not previ- ously been granted to individuals. These words, "territory belonging to the United States," were not used in the Constitution to describe an abstraction, but to identify and apply to these actual snb- CHAP, lll.j AMERICAN INS. CO. V. CANTEK. 355 jects matter then existing and belonging to the United States, and other similar subjects which might afterwards be acquired ; and this being so, all the essential qualities and incidents attending such actual subjects are embraced within the words " territory belonging to the United States," as fully as if each of those essential qualities and incidents had been specifically described. I say, the essential qualities and incidents. But in determining what were the essential qualities and incidents of the subject with which they were dealing, we must take into consideration not only all the particular facts which were immediately before them, but the great consideration, ever present to the minds of those who framed and adopted the Constitution, that they were making a frame of government for the people of the United States aud their posterity, under which they hoped the United States might be, what they have now become, a great and powerful nation, possessing the power to make war and to conclude treaties, and thus to acquire terri- tory. (See Seri v. Pilot, 6 Cr. 336; Am. his. Co. v. Canter, 1 Pet. 542.) With these in view, I turn to examine the clause of the article now in question. It is said this provision has no application to any territory save that then belonging to the United States. I have already shown that, when the Constitution was framed, a confident expectation was entertained, which was speedily realized, that North Caro- lina and Georgia would cede their claims to that great territory which lay west of those States. No doubt has been suggested that the first clause of this same article, which enabled Congress to admit new States, refers to and includes new States to be formed out of this territory, expected to be thereafter ceded by North Carolina and Georgia, as well as new States to be formed out of territory northwest of the Ohio, which then had been ceded by Virginia. It must have been seen, therefore, that the same necessity would exist for an authority to dispose Of and make all needful regu- lations respecting this territory, when ceded, as existed for a like authority respecting territory which had been ceded. No reason has been suggested why any reluctance should have been felt, by the framers of the Constitution, to apply this provision to all the territory which miglit belong to the United States, or why any distinction should have been made, founded on the accidental circumstance of the dates of the cessions ; a circulnstance in no way material as respects the necessity for rules and regulations, or the propriety of con- ferring on the Congress power to make them. And if we look at the course of the debates in the Convention on this article, we shall find that the then uuceded lands, so far from having been left out of view in adopting this article, constituted, in the minds of members, a subject of even paramount importance. Again, in what an extraordinary position would the limitation of this clause to territory then belonging to the United States, place the territory which lay within the chartered limits of North Carolina and Georgia. The title to that territory was then claimed by those States, and by the United States; their respective claims are pur- posely left unsettled by the express words of this clause; and when cessions were made by those States, they were merely of their claims to this territory, the United States neither admitting nor denying the validity of those claims; so that it was im- possible then, and has ever since remained impossible, to know whether this territory did or did not then belong to the United States ; and, consequehtly, to know whether it was within or without the authority conferred by this clause, to dispose of and make rules and regulations respecting the territory of the United States. This attributes to the eminent men who acted on this subject a want of ability and forecast, or a want of attention to the known facts upon which they were acting, in which I cannot concur. There is not, in my judgment, anything in the language, the history, or thfe sub- ject-matter of this article, which restricts its operation to territory owned by the United States when the Constitution was adopted. But it is also insisted that provisions of tlie Constitution respecting territory belonging to the United States do not apply to territory acquired by treaty from a foreign nation. This objection must rest upon the position that the Constitution did not authorize the Federal government to acquire foreign territory, and con- 356 AMERICAN INS. CO. V. CANTER. [CHAP. III. sequently has made no provision for its government when acquired ; or, that though the acquisition of foreign territory was contemplated by the Constitution, its pro- visions concerning the admission of new States, and the making of all needful rules and regulations respecting territory belonging to the United States, were not designed to be applicable to territory acquired from foreign nations. It is undoubtedly true, that at the date of the treaty of 1 803, between the United States and France, for the cession of Louisiana, it was made a question, whether the Constitution had conferred on the executive department of the government of the Uqited States power to acquire foreign territory by a treaty. There is evidence that very grave doubts were then entertained concerning the existence of this power. But that there was then a settled opinion in the executive and legislative branches of the government, that this power did not exist, cannot be admitted, without at the same time imputing to those who negotiated and ratified the treaty, and passed the laws necessary to carry it into execution, a deliberate and known violation of their oaths to support the Constitution ; and whatever doubts may then have existed, the question must now be taken to have been settled. Four dis- tinct acquisitions of foreign territory have been made by as many different treaties, under as many different administrations. Six States, formed on such territory, are now in the Union. Every branch of this government, during a period of more than fifty years, has participated in these transactions. To question their validity now, is vain. As was said by Mr. Chief Justice Marshall, in the American Insurance Company V. Canter (1 Peters, 542), " the Constitution confers absolutely on the government of the Union the powers of making war and of making treaties ; consequently, that govern- ment possesses the power of acquiring territory, either by conquest or treaty." (See Serl V. Pilot, 6 Cr. 336.) And I add, it also possesses the power of governing it, when acquired, not by resorting to supposititious powers, nowhere found described in the Constitution, but expressly granted in the authority to make all needful rules and regulations respecting the territory of the United States. There was to be established by the Constitution a frame of government, under which the people of the United States and their posterity were to continue indefi- nitely. To take one of its provisions, the language of which is broad enough to extend throughout the existence of the Government, and embrace all territory belonging to the United States throughout all time, and the purposes and objects of which apply to all territory of the United States, and narrow it down to territory belonging to the United States when the Constitution was framed, while at the same time it is admitted that the Constitution contemplated and authorized the acquisition, from time to time, of other and foreign territory, seems to me to be an interpretation as inconsistent with the nature and purposes of the instrument, as it is with its language, and I can have no hesitation in rejecting it. I constrne this clause, therefore, as if it had read. Congress shall have power to make all needful rules and regulations respecting those tracts of country, out of the limits of the several States, which the United States have acquired, or may hereafter acquire, by cessions, as well of the jurisdiction as of the soil, so far as the soil may be the property of the party making the cession, at the time of making it. It has been urged that the words "rules and regulations" are not appropriate terms in which to convey authority to make laws for the government of the territory. )But it must be remembered that this is a grant of power to the Congress — that it is therefore necessarily a grant of power to legislate — and, certainly, rules and regu- lations respecting a particular subject, made by the legislative power of a country, can be nothing but laws. Nor do the particular terms employed, in my judgment, tend in any degree to restrict this legislative power. Power granted to a legislature to make all needful rules and regulations respecting the territory, is a power to pass all needful laws respecting it. The word regula,te, or regulation, is several times used in the Constitution. It is used in the fourth section of the first article to describe those laws of the States which prescribe the times, places, and manner of choosing senators and representatives; in the second section of the fourth article, to designate the legislative action of a State CHAP. III.] AMERICAN INS. CO. V. CANTER. 357 on the subject of fugitives from service, having a very close relation to the matter of our present inquiry ; in the second section of the third article, to empower Co;igress to fix the extent of the appellate jurisdiction of this court ; and, finally, in the eighth section of the first article are the words, " Congress shall have power to regulate commerce." It is unnecessary to describe the body of legislation which has been enacted under this grant of power; its variety and extent are well known. But it may be men- tioned, in passing, that under this power to regulate commerce, Congress has enacted a great system of municipal laws, and extended it over the vessels and crews of the United States on the high seas and in foreign ports, and even over citizens of the United States resident in China; and has established judicatures, with power to iufiict even capital punishment within that country. If, then, this clause does contain a power to legislate respecting the territory, what are the limits of that power 1 To this I answer, that, in common with all the other legislative powers of Con- gress, it finds limits in the express prohibitions on Congress not to do certain things ; that, in the exercise of the legislative power. Congress cannot pass an ex past facto law or bill of attainder; and so in respect to each of the other prohibitions contained in the Constitution. Besides this, the rules and regulations must be needful. But undoubtedly the question whether a particular rule or regulation be needful, must be finally determined by Congre.ss itself. Whether a law be needful, is a legislative or political, uot a judicial, question. Whatever Congress deems needful is so, under the grant of power. Nor am I aware that it has ever been questioned that laws providing for the tem- porary government of the settlers on the public lands are needful, not only to prepare them for admission to the Union as States, but even to enable the United States to dispose of the lands. Without government and social order, there can be no property ; for without law, its ownership, its use, and the power of disposing of it, cease to exist, in the sense in which those words are used and understood in all civilized States. Since, then, this power was manifestly conferred to enable the United States to dispose of its public lands to settlers, and to admit them into the Union as States, when in the judgment of Congress they should be fitted therefor, since these were the needs provided for, since it is confessed that government is indispensable to provide for those needs, and the power is, to make all needful rules and regulations respecting the territory, I cannot doubt that this is a power to govern the inhabitants of the territory, by such laws as Congress deems needful, until they obtain admission as States. Whether they should be thus governed solely by laws enacted by Congress, or partly by laws enacted by legislative power conferred by Congress, is one of those questions which depend on the judgment of Congress — a question which of these is needful — Coetis, J. in Dred Scott v. Sandford, 19 How, 610-615 (1856). Com- pare Taney, C. J. lb. 432-451. See Benner v. Porter, 9 How. 235; U. S. v. Guthrie, 17 How. 284, and Clinton v. Englebrecht, 13 Wall. 434 (1871). In the last of these cases, at p. 447, Chase, C. J. (for the court) said: "There is no Supreme Court of the United States, nor is there any District Court of the United States, in the sense of the Constitution, in the Ter- ritory of Utah. The judges are not appointed for the same terms, nor is the juris- diction which they exercise part of the judicial power conferred by the Constitution or the general government. The courts are the legislative courts of the Territory, created in virtue of the clause which authorizes Congress to make all needful rules and regu- lations respecting the Territories belonging to the United States." — £o. 358 CALLAN V. WILSON. [cHAP. III. CALLAN V. WILSON. SuPEEME Court of the United States. 1887. [127 U. S. 540.] The court stated the case as follows : — This was an appeal from a judgment refusing, upon writ of habeas corpus, to discharge the appellant from the custody of the appellee as Marshal of the District of Columbia. It appears that by an informa- tion filed by the United States in the police court of the District, the petitioner, with others, was charged with the crime of conspiracy, and having been found guilty by the court, was sentenced to pay a fine of twenty-five dollars, and upon default in its paj-ment to suffer imprison- ment in jail for the period of thirtj- days. He perfected an appeal to the Supreme Court of the District, but having subsequentlj- withdrawn it, and having refused to pay the fine imposed upon him, he was com- mitted to the custody of the marshal, to the end that the sentence might be carried into effect. The contention of the petitioner was that he is restrained of his liberty in violation of the Constitution. ... To this information the defendants interposed a demurrer, which was overruled. Thej- united in requesting a trial by jury. That request was denied, and a trial was had before the court, without the intervention of a jury, and with the result alread}- stated. Mr. J. H. Balston, for appellant. Mr. Charles S. Moore was with him on the brief. ' Mr. Assistant Attorney- General Maury, for appellee. Mr. Justice ' Harlan, after stating the case as above reported, delivered the opinion of the court. It is contended b)- the appellant that the Constitution of the United States secured to him the right to be tried by a jury, and, that right liaving been denied, the police court was without jurisdiction to impose a fine upon him, or to order him to be imprisoned until such fine was paid. This precise question is now, for the first time, presented for determination by this court. If the appellant's position be sustained, it will follow that the statute (Rev. Stat. Dist. Col. § 1064), dispensing with a petit jurj-, in prosecutions by information in the police court, is inapplicable to cases like the present one. The third article of the Constitution provides that "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 com- mitted; but when not committed within any State, the trial shall be at such place or places as the Congress may hy law have directed." The Fifth Amendment provides that no person shall " be deprived of life, libert3'. or property, without due process of law." By the Sixth Amend- ment it is declared that "in all criminal prosecutions the accused shall CHAP. III.] CALLAN V. WILSON. 359 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 ascei-tained by law, and to be in- formed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtain- ing witnesses in his favor, and to have the assistance of counsel for his defence." The contention of the appellant is, that the offence with which he is charged is a " crime" within the meaning of the third article of the Constitution, and that he was entitled to be tried by a jury ; that his trial by the police court, without a jurj-, was not "due process of law" within the meaning of the Fifth Amendment ; and that, in any event, the prosecution against him was a " criminal prosecution," in which he was entitled, by the Sixth Amendment, to a speedy and public trial by an impartial jury. The contention of the government is, that the Constitution does not require that the right of trial by jury shall be secured to the people of the District of Columbia ; that the original provision, that when a crime was not committed within any State " the trial shall be at such place or places as the Congress maj- by law have directed," had, probably, refer- ence onl3' to offences committed on the high seas ; that, in adopting the Sixth Amendment, the people of the States were solicitous about trial bj' jury in the States and nowhere else, leaving it entirely to Congress to declare in what way persons should be tried who might be accused of crime on the high seas, and in the District of Columbia and in places to be thereafter ceded for the purposes, respectively, of a seat of gov- ernment, forts, magazines, arsenals, and dock-3'ards ; and, consequently, that that amendment should be deemed to have superseded so much of the third article of the Constitution as relates to the trial of crimes by a jury. Upon a careful examination of this position we are of opinion that it qannot be sustained without violence to the letter and spirit of the Constitution. The third article of the Constitution provides for a jury in the trial of " all crimes, except in cases of impeachment." The word " crime," in its more extended sense, comprehends every violation of public law ; in a limited sense, it embraces offences of a serious or atrocious char- acter. In our opinion, the provision is to be interpreted in the light of the principles which, at common law, determined whether the accused, in a given class of cases, was entitled to be tried by a jury. It is not to be construed as relating onlj- to felonies, or offences punishable b\- confinement in the penitentiary. It embraces as well some classes of ■misdemeanors, the punishment of which involves or may involve the deprivation of the liberty of the citizen. It would be a narrow con- struction of the Constitution to hold that no prosecution for a misde- meanor is a prosecution for a " crime " within the meaning of the third article, or a " criminal prosecution " within the meaning of the Sixth 360 CALLAN V. WILSON. [CHAP. in. Amendment. And we do not think that the amendment was intended to supplant that part of the third article which relates to trial by jury. There is no necessary conflict between them. Mr. Justice Story says that the amendment, " in declaring that the accused shall enjoy the right to a speedy and public trial by an impartial jur3' of the State or district wherein the crime shall have been committed (which district shall be previously ascertained by law), and to be informed of the nature and cause of the accusation, and to be confronted with the witnesses against him, does but follow out the established course of the common law in all trials for crimes." Story on the Constitution, § 1791. And as the guarantee of a trial bj^jurj^ in the third article, implied a trial in that mode and according to the settled rules of the common law, the enumeration, in the Sixth Amendment, of the rights of the accused in criminal prosecutions, is to be taken as a declaration of what those riiles were, and is to be referred to the anxiety of the people of the States to have in the supreme law of the land, and so" far as the agencies of the general government were concerned, a full and distinct recognition of those rules, as involving the fundamental rights of life, libertj-, and pi'operty. This recognition was demanded and se- cured for the benefit of all the people of the United States, as well those permanently or temporarily residing in the District of Columbia, as those residing or being in the several States. There is nothing in the history of the Constitution or of the original amendments to justifj' the asser- tion that the people of this district may be lawfully deprived of the benefit of any of the constitutional guarantees of life, liberty, and prop- erty — especially of the privilege of trial bj' jur}' in criminal cases^ In the draft of a constitution reported by the Committee of Five on the 6th of August, 1787, in the convention which framed the Constitution, the 4th section of Article XI. read that '' the trial of all criminal of- fences (except in cases of impeachment) shall be in the States where tfiey shall be committed ; and shall be by jury." 1 Elliott's Deb. (2d ed.), 229. But that article was, by unanimous vote, amended so as to read : " The trial of all crimes (except in cases of impeachment) shall be bj- 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, then the ti-ial shall be at such place or places as the legislature may direct." lb. 270. The object of thus amending the section, Mr. Madison says, was "to provide for trial by jury of offences committed out of any State." 3 Madison Papers, 144. In Reynolds v. United States, 98 U. S. 145, 154, it was taken for granted that the Sixth Amendment of the Constitution secured to the people of the Territories the right of trial by jury in criminal prosecutions ; and it had been previously held in Webster \. Reid, 11 How. 437, 460, that the Seventh. Amendment secured to them a like right in civil actions at common law. We cannot think that the people of this district have, in that reward, less rights than those accorded to the people of the Terri- tories of the United States. CHAP. III.] MORMON CHURCH V. UNITED STATES. 361 It is next insisted that the constitutional guarantee of trial by jury in all criminal prosecutions — even supposing it to exist for the people of the district — has not been denied. . . . The argument, made in behalf of the government, implies that if Congress should provide the police court with a grand jury, and authorize that court to try, without a petit jury, all persons indicted — even for crimes punishable by confinement in the penitentiary — such legislation would not be an invasion of the constitutional right of trial by jiiry, provided the accused, after being tried and sentenced in the police court, is given an unobstructed right of appeal to, and trial by jury in, another court to which the case may be taken. We cannot assent to that interpretation of the Constitution. Except in that class or grade of offences called petty offences, which, according to the common law, may be proceeded against summarily in any tri- bunal legally constituted for that purpose, the guarantee of an impar- tial jury to the accused in a criminal prosecution, conducted either in the name, or bj- or under the authority of, the United States, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offence charged. In such cases a judgment of conviction, not based upon a verdict of guiltj' by a jury, is void. To accord to the accused a right to be tried by a jury, in an appellate court, after he has been once fully tried otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it, does not satisfy the require- ments of the Constitution. When, therefore, the appellant was brought before the Supreme Court of the district, and the fact was disclosed that he had been adjudged guilty of the crime of conspiracy charged in the information in this case, without ever having been tried by a jury, he should have been restored to his liberty. For the reasons stated. The judgment is reversed, and the cause remanded with directions to discharge the appellant from custody. In Mormon Church v. United States, 136 U. S. 1, 42-43 (1889), Mr. Jdstice Bradley (for the court) said : — "The principal questions raised are, first, as to the power of Congress to repeal the charter of the Church of Jesus Christ of Latter-Day Saints ; and, secondly, as to the power of Congress and the courts to seize the property of said corporation and to hold the same for the purposes mentioned in the decree. " The power of Congress over the Territories of the United States is general and plenary, arising from and incidental to the right to acquire the territory itself, and from the power given by the Constitution to make all needful rules and regulations respecting the territory or other property belonging to the United States. It would be absurd to hold that the United States has power to acquire territory, and no power to govern it when acquired. The power to acquire territory, other than 362 MOBMON CHURCH V. UNITED STATES. [CHAP. III. the territory northwest of the Ohio River (which belonged to the United States at the adoption of the Constitution), is derived from the treatj> making power and the power to declare and carry on war. The inci- dents of these powers are those of national sovereignty, and belong to all independent governments. The power to make acquisitions of ter- ritory by conquest, by treatj-, and by cession is an incident of national sovereignty. The Territory of Louisiana, when acquired from France, and the Territories west of the Rocky Mountains, when acquired from Mexico, became the absolute property and domain of the United States, subject to such conditions as the government, in its diplomatic nego- tiations, had seen iit to accept relating to the rights of the people then inhabiting those Territories. Having rightfullj' acquired said Territories, the United States government was the only one which could impose laws upon them, and its sovereignty over them' was complete. No State of the Union had any such right of sovereignty over them ; no other country or government had any such right. These propositions are so elementary, and so necessarily follow from the condition of things arising upon the acquisition of new territory, that they need no argu- ment to support them. They are self-evident. . . , Mr. Justice Nelson delivering the opinion of the court in JBentier v. Porter, 9 How. 235, 242, speaking of the territorial governments established b^- Congress, says : ' They are legislative governments, and their courts legislative courts, Congress, in the exercise of its powers in the organization and government of the Territories, combining the powers of both the Federal and State authorities.' Chief Justice Waite, in the case of National Bank v. County of Yankton, 101 U. S. 129, 133, said: 'In the organic Act of Dakota there was not an express reservation of power in Congress to amend the Acts of the territorial legislature, nor was it neces- sary. Such a power is an incident of sovereigntj-, and continues until gi'anted away. Congress may not only abrogate laws of the territorial legislatures, but it may itself legislate directly for the local government. It may make a void Act of the territorial legislature valid, and a valid Act void. In other words, it has full and complete legislative authority over the people of the Territories and all the departments of the terri- torial governments. It may do for the Territories what the people, under the Constitution of the United States, may do for the States.' In a still more recent case, and one relating to the legislation of Con- gress over the Territory of Utah itself, Murphy v. Ramsey, 114 U. S. 15, 44, Mr. Justice Matthews said : ' The counsel for the appellants in argument seem to question the constitutional power of Congress to pass the Act of March 22, 1882, so far as it abridges the rights of electors in the Territory under previous laws. But that question is, we think, no longer open to discussion. It has passed beyond the stage of contro- versj' into final judgment. The people of the United States as sovereign owners of the national Territories, have supreme power over them and their inhabitants. In the exercise of this sovereign dominion, they are represented by the government of the United States, to whom all the CHAP. III.] MORMON CHURCH V. UNITED STATES. 363 powers of government over that subject have been delegated, subject only to such restrictions as are expressed in the Constitution, or are necessarily implied in its terms.' Doubtless Congress in legislating for the Territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments ; but these limitations would exist rather by infer- ence and the general spirit of the Constitution from which Congress derives all its powers, than by any express and direct application of its provisions." ' ' " It would seem, from these various congressional regulations of the Territories belonging to the United States, that Congress have supreme power in the government of them, depending on the exercise of their sound discretion. That discretion has hitherto been exercised in wisdom and good faith, and with an anxious regard for the security of the rights and privileges of the inhabitants, as defined and declared in the ordinance of July, 1787, and in the Constitution of the United States. 'AH admit/ said Chief Justice Marshall (4 Wheaton, 422), ' the constitutionality of a territorial government.' But neither the District of Columbia, nor a Territory, is a State, within the meaning of the Constitution, or entitled to claim the privileges secured to the mem- bers of the Union. This has been so adjudged by the Supreme Court. Hepburn v. £//jcy, 2 Cranch, 445; Corporation of New Orleans v. Winter, I Wheaton, 91. Nor will a writ of error or appeal lie from a territorial court to the Supreme Court, unless there be a special statute provision for the purpose. Clarke v. Bazadone, 1 Cranch, 212 ; United States v. More, 3 76. 159. If, therefore, the government of the United States should carry into execution the project of colonizing the great valley of the Columbia or Oregon River, to the west of the Rocky Mountains, it would afford a subject of grave con.si deration, what would be the future civil and political destiny of that country. It would be a long time before it would be populous enough to be created into one or more independent States ; and in the mean time, upon the doctrine taught by the Acts of Congress, and even by the judicial decisions of the Supreme Court, tlie colonists would be in a state of the most complete subordination, and as dependent upon the will of Congress as the people of this country would have been upon the Icing and Parliament of Great Britain, if they could have sustained their claim to bind us in all cases whatsoever. Such a state of absolute sovereignty on the one hand, and of absolute dependence on the other, is not congenial with the free and independent spirit of our native institutions ; and the establishment of distant terri- torial governments, ruled according to will and pleasure, would have a very natural tendency, as all proconsular governments have had, to abuse and oppression." — 1 Kent's Com.* 385. The foregoing passage is found, in substantially the same form, in all the editions of Kent's Commentaries, beginning with the first in 1826. Compare the doctrine of U. S. v. Kagama, 118 U. S. 375 (1886), deciding that the United States has full legislative power over tribal Indians, on reservations in the States as well as the Territories, — and the grounds on which it is put. " These Indians," said Miller, J., for the court, " are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the government of the United States, or of the States of the Union. There txist within the broad domain of sovereignty but these two. There may be cities, counties, and other organized bodies with limited legislative functions, but they are all derived from, or exist in, subordination to one or the other of these. The territorial governments owe all their powers to the statutes of the United States conferring on them the powers which they exercise, and which are liable to be withdrawn, modified, or repealed at any time by Congress. What authority the State governments may have to enact criminal laws for the Indians will be presently considered. But this power of Congress to organize territorial governments, and make laws for their inhabi- tants, arises not so much from the clause in the Constitution in regard to disposing of 364 JONES V. UNITED STATES. [CHAP IH. JONES V. UNITED STATES. Supreme Court of the United States. 1890. [137 U. S. 202.] . . . Mr. M J. Waring, Mr. John ITenry I^eene, Jr., and Mi\ Archi- bald Stirling, for plaintiffs in error. Mr. Joseph S. Davis and Mr. J. Edward Stirling were witli tliem on the brief. Mr. Attorney- General, for defendants in error. Mr. Justice Gray delivered the opinion of the court. This was an indictment, found in the District Court of the United States for the District of Mar\-land, and remitted to the Circuit Court under Eev. Stat. § 1039, alleging that Henr}- Jones, late of that district, ou September 14, 1889, " at Navassa Island, a pl^ce which then and • there was under the sole and exclusive jurisdiction of the United States, and out of the jurisdiction of any particular State or district of the United States, the same being, at the time of the committing of the offences in the manner and form as hereinafter stated bj- the persons hereinafter named, an island situated in the Caribbean Sea, and named Navassa Island, and which was then and there recognized and consid- ered by the United States as containing a deposit of guano, within the meaning and terms of the laws of the United States relating to such islands, and which was then and there rec^nized and considered b}' the United States as appertaining to the United States, and which was also then and there in the possession of the United States, under the laws of the United States then and there in force relating to such islands," murdered one Thomas N. Foster, bj- giving him three mortal blows with an axe, of which he there died on the same day ; and that and making rules and regulations concerning tlie territory and other property of the United States, as from the ownership of the country in which the Territories are, and the right of exclusive sovereignty which must exist in the national government, and can be found nowhere else. Murphy v. Ramsey, 114 U. S. 15, 44. . . . [It is then laid down that the general government may legislate for tribal Indians on both State and territorial reservations.] They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the doty of protection, and with it the power. This has always been recognized by the executive and by Congress, and by this court, whenever the question has arisen. . . . The power of the general gov- ernment over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes." In dealing with the tribal Indians, the United States government has never pro- ceeded on the theory that its action was restrained by the amendments, or by other like clauses in the body of the Federal Constitution. — Ed. CHAP. III.J JONES V. UNITED STATES. 365 other persons named aided and abetted in the murder. The indictment, after charging the murder in usual form, alleged that the District of Maryland was the District of the United States into which the defend- ant was afterwards first brought from the Island of Navassa. The defendant filed a general demurrer, which was overruled, and he then pleaded not guilty. The jury returned a verdict of guilty ; and a bill of exceptions was tendered by the defendant, and allowed bj- the court, in substance as follows : — ... After verdict, the defendant moved in arrest of judgment, for various reasons, the only one of which, relied on in argument, was this : " Be- cause the Act of August 18, 1856, c. 164, now codified with amend- ments as Title 72 of the Revised Statutes of the United States, is unconstitutional and void, and the court was without jurisdiction to try the defendant under the indictment found against him." The motion was overruled, and the defendant sentenced to death; and he sued out this writ of error under the Act of February 6, 1889, c. 113, § 6; 25 Stat. 656. . . . By section 6 of the same Act, re-enacted in section 5576 of the Re- vised Statutes, all acts done, and offences or crimes committed, on any sucJh island, rock, or key, by persons who may land thereon, or in the waters adjacent thereto, " shall be held and deemed to have been done or committed on the high seas, on board a merchant ship or vessel belonging to the United States, and be punished according to the laws of the United States relating to such ships or vessels and offences on the high seas ; which laws, for^he purposes aforesaid, are herebj' ex- tended to and over such islands, rocks, or keys." This section does not (as argued for the defendant) assume to extend the admiralty' jurisdiction over land ; but, in the exercise of the power of the United States to preserve peace and punish crime in all regions over which they exercise jurisdiction, it unequivocally extends the pro- visions of the Statutes of the United States for the punishment of offences committed upon the high seas to like offences committed upon guano islands which have been determined by the President to appertain to the United States. In either case, the crime, the punishment, and the procedure are statutory, the whole criminal jurisdiction of the courts of the United States being derived from Acts of Congress. United States V. Hudson, 7 Cranch, 32 ; United States v. Britton, 108 U. S. 199, 206. By the Constitution of the United States, while a crime committed within any State must be tried in that State and in a district previously ascertained by law, j'et a crime not committed within any State of the Union may be tried at such place as Congress may by law have directed. Constitution, art. 3, § 2 ; Amendments, art. 6 ; United States -v. Daw- son, 15 How. 467, 488. Congress has directed that "the trial of all offences committed upon the high seas or elsewhere, out of the jurisdic- tion of any particular State or district, shall be in the district where the offender is found, or into which he is first brought." Rev. Stat. 366 IN EE ROSS. [chap, iil § 730. And Congress has awarded the punishment of death to the crime of mni'der, whether committed upon the high seas or other tide- waters out of the jurisdidtion of anj- particular State, or " within any fort, arsenal, dock-jard, magazine, or in anj- other place or district of countrj' under the exclusive jurisdiction of the United States." Rev. Stat. § 5339. Both these Acts of Congress clearly include murder com- mitted on any land within the exclusive jurisdiction of the United States, and not within any judicial district, as well as murder com- mitted on the high seas. Mc parte BoUman, 4 Crancli, .75, 136 ; United States v. £evans, 3 Wheat. 336, 390, 391 ; United States v. Arwo, 19 Wall. 486. * By the law of nations, recognized bv all civilized States, dominion of new territory may be acquired bj' discoverj' and occupation, as well as by cession or conquest; and when citizens or subjects of one nation, in its name, and bj' its authorit}' or with its assent, take and hold actual, continuous, and useful possession (although only for the purpose of carrying on a particular business, such as catching and curing fish. Or working mines) of territory unoccupied bj' anj- other government or its citizens, the nation to which they belong may exercise such jurisdic- tion and for such period as it sees fit over territory so acquired. This principle affords ample warrant for the legislation of Congress concern- ing guano islands. Vattel, lib. 1, c. 18; Wheaton on International Law (8th ed.) §§ 161, 165, 176, note 104; Halleck on International Law, 0. 6, §§ 7, 15 ; 1 Phillimore on International Law (3d ed.) §§ 227, 229, 230, 232, 242 ; 1 Calvo Droit International (4th ed.) §§ 266, 277, 300 ; Whiton v. Albany Ins. Co., 109 Mass. 24, 31. Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political question, the determination of which bj- the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances. . . . Judgment affirmed. In ee BOSS. Sm'REME CotTRT OF THE UNITED STATES. 1890. [140 U. S. 453.] ThB petitioner below, the appellant here, was imprisoned in the penitentiary at Albany in the State of New York. He was convicted on the 20th of May, 1880, in the American consular tribunal in Japan, of the crime of murder, committed on board of an American ship in the harbor of Yokohama in that empire, and sentenced to death. CHAP. III.] IN KE KOSS. 367 On the 6th of August following, his sentence was commuted by the President to imprisonment for life in the penitentiary at Albany, and to that place he was taken, and there he has ever since been confined. Nearly ten years afterwards, on the 19th of March, 1890, he applied to the Circuit Court of the United States for the Northern District of New York for a writ of habeas corpus for his discharge, alleging that his conviction, sentence, and imprisonment were unlawful, and stating the causes thereof and the attendant circumstances. The writ was issued, directed to the superintendent of the penitentiary, who made return that he held the petitioner under the warrant of the Presi- dent. . . . To this warrant was annexed a copy of the petitioner's acceptance of the conditional pardon of the President, certified to be correct b^' the United States consul-general at Japan. . . . The case was then heard b3' the Circuit Court, counsel appearing for the petitioner and the assistant United States attorney for" the government. . . . On the 9th of May, 1880, the appellant, John M. Eoss, was one of the crew of the American ship BuUion, then in the waters of Japan, and lying at anchor in the harbor of Yokohama. On that day, on board of the ship, he assaulted Robert Kelly, its second mate, with a knife, inflicting in his neck a mortal wound, of which in a few minutes afterwards he died on the deck of the ship. Eoss was at once arrested by direction of the master of the vessel and placed in irons, and on the same day he was taken ashore and confined in jail at Yokohama. On the following day. May 10, the master filed with the American consul- general at that place, Thomas B. Van Buren, a complaint against Eoss, charging him with the murder of the mate. It contained suflScient averments of the offence, was verified by the oath of the master, and to it the consul-general appended his certificate that he bad reasonable grounds for believing its contents were true. The complaint described the accused as one " supposed to be a citizen of the United States." On the 18th of that month an amended complaint was filed by the master of the ship with the consul-general, in which the accused was described as " an American seaman, duly and lawfully enrolled and shipped and doing service as such seaman on board the American ship Bullion." The complaint was also amended in some other par- ticulars. . . . Previously to its being filed the accused appeared with counsel before the consul-general, and the complaint being read to him., lie presented an aflSdavit stating that he was a subject of Great Britain, a native of Prince Edward's Island, a dependency of the British Empire, and had never renounced the rights or liabilities of a British subject or been expatriated from his native allegiance or been naturalized in any Other country. Upon this affidavit he contended that the court was without jurisdiction over him, by reason of his being a subject of Great Britain, and he prayed that he be discharged. His contention was termed in the record a demurrer to the complaint. 368 IN RE ROSS. [chap. III. The court held that as the accused was a seaman on an American vessel, he was subject to its jurisdiction, and overruled the objection. The counsel of the accused then moved that the charge against him be dismissed, on the ground that he could not be held for the offence except upon the presentment or indictment of a grand jury, but this motion was also overruled. Four associates were drawn, as required by statute and the consular regulations, to sit with the consul-general on the trial of the accused, and, being sworn to answer questions as to their eligibility, the accused stated that he had no questions to ask them on that subject. They were then sworn in to try the cause " in accordance with court regula- tions." A motion for a jury on the trial was also made and denied. The amended complaint was then substituted in place of the original, to which no objection was interposed, and to it the accused pleaded " not guiltj'," and asked for the names of the witnesses for the prose- cution, which were furnished to him. The witnesses were then sworn and examined, and they established bej'ond all possible doubt the offence of murder charged against the accused, which was committed under circumstances of great atrocitj'. The court found him guilty of murder, and he was sentenced to suffer death in such manner and at such time and place as the United States minister should direct. The conviction and sentence were concurred in by the four associates, and were approved by Mr. Bingham, the minister of the United States in Japan. The minister transmitted the record of the case to the Depart- ment of State for the consideration of the President, and for commuta- tion of the sentence or pardon of the prisoner, if deemed advisable. The President subsequently' directed the issue to the prisoner of a par- don on condition that he be imprisoned at hard labor for the term of his natural life in the penitentiary at Albany, and it was accepted by him on that condition. His sentence was accordinglj- commuted, and he was removed to the Albany penitentiary. The Circuit Court, after hearing argument of counsel and full con- sideration of the subject, made an order on January 21, 1891, denying the motion of the prisoner for his discharge, and remanding him to the penitentiary and the custody of its supei'intendent. 44 Fed. Rep. 185. From that order the case was brought here on appeal. Mr. George W. JSirchwey, for appellant made the following points. Mr. Assistant Attorney- General Parker for appellee. Mr. Justice Field, after stating the case, delivered the opinion of the court. The Circuit Court did not refuse to discharge the petitioner upon any ' independent conclusion as to the validity of the legislation of Congress establishing the consular tribunal in Japan, and the trial of Americans ior offences committed within the territory of that country, without the indictment of a grand jury, and without a trial by a petit jury, but placed its decision upon the long and uniform acquiescence by the executive, CHAP. III.J IN EE ROSS. 369 administrative, and legislative departments of tbe government in the validity' of the legislation. Nor did the Circuit Court consider whether the status of tbe petitioner as a citizen of the United States, or as an American within the meaning of the treatj' with Japan, could be ques- tioned, while he was a seaman of an American ship, under the protec- tion of the American flag, but simply stated the view taken on that subject bj' the minister to Japan, the State Department, and the President. Said the court : '' During the thirty- years since the stat- utes conferring the judicial powers on ministers and consuls, which have been referred to, were enacted, that jurisdiction has been freelj' exercised. Citizens of the United States have been tried for serious offences before these officers, without preliminarj- indictment or a com- mon-law jurj', and convicted and punished. These trials have been authorized by the regulations, orders and decrees of ministers, and it must be presumed that the regnlations, orders and decrees of ministers prescribing the mode of trial have been transmitted to the Secretary of the State, and by him 'been laid before Congress for revision, as re- quired by law. Unless the petitioner was not properly subject to this jurisdiction because he was not a citizen of the United States, his trial and sentence were in all respects modal, as well as substantial, regular and valid under the laws of Congress, according to the construction placed upon these statutes by the acquiescence of the executive, ad- ministrative, and legislative departments of the government for this long period of time." Under these circumstances the Circuit Court was of opinion that it ought not to adjudge that the sentence ifaiposed upon the petitioner was utterly unwarranted and void, when the case was one in which his rights could be adequatelj' protected by this court, and when a decision by the Circuit Court setting him at libertj-, although it might be reversed, would be practically irrevocable. The Circuit Court might have found an additional ground for not calling in question the legislation of Congress, in the uniform practice of civilized governments for centuries to provide consular tribunals in ether than Christian countries, or to invest their consuls with judicial authority, which is the same thing, for the trial of their own subjects or citizens for offences committed in those countries, as well as for the settlement of civil disputes between them ; and in the uniform recogni- tion, down to the time of the formation of our government, of the fact that the establishment of such tribunals was among the most important subjects for treaty stipulations. This recognition of their importance has continued ever since, though the powers of those tribunals are now more cai-efully defined than formerl3'. Dainese v. Hale, 91 U. S. 13. The practice of European governments to send officers to reside in foreign countries, authorized to exercise a limited jurisdiction over vessels and seamen of their country, to watch the interests of their countrj-men and to assist in adjusting their disputes and protecting their commerce, goes back to a very early period, even preceding what are VOL. I. — 24 370 IN RE BOSS. [chap, iil termed the Middle- Ages. During those ages these commercial magis- trates, generally" designated as consuls, possessed to some extent a representative character, sometimes discharging judicial and diplomatic functions. In other than Christian countries they were, b3- treaty stipulations, usually- clothed with authority to hear complaints against their countrj-men and to sit in judgment upon them when charged with public offences. After the rise of Islamism, and the spread of its fol- lowers over eastern Asia and other countries bordering on the Mediter- ranean, the exercise of this judicial authority became a matter of great concern. The intense hostility of the people of Moslem faith to all other sects, and particularly to Christians, affected all their intercourse, and all proceedings had in their tribunals. Even the rules of evidence adopted bj' them placed those of different faith on unequal grounds in any controversy with them. For this cause, and bj' reason of the barbarous and cruel punishments inflicted in those countries, and the frequent use of torture to enforce confession from parties accused, it was a matter of deep interest to Christian go^-ernments to withdraw the trial of their subjects, when charged with the commission of a public offence, from the arbitrar}- and despotic action of the local officials. Treaties conferring such jurisdiction upon these consuls were essential to the peaceful residence of Christians within those countries and the successful prosecution of commerce with their people. The treatj'-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally' with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authoritj- in other coun- tries bj' its officers appointed to reside therein. We do not understand that an}- question is made bj- counsel as to its power in this respect. His objection is to the legislation by which such treaties are carried out, contending that, so far as crimes of a felonious character are concerned, the same protection and guarantee against an undue accusation or an unfair trial, secured by the Constitution to citi- zens of the United States at home, should be enjoj-ed b}- them abroad; In none of the laws which have been passed b}- Congress to give effect to treaties of the kind has there been anj- attempt to require indictment b\- a grand jury before one can be called upon to answer for a public offence of that grade committed in those coimtries, or to secure a jurj' on the trial of the offence. Yet the laws on that subject have been passed without objection to their constitutionality. Indeed, objection on that ground was never raised in an^" quarter, so far as we are informed, until a recent period. It is now, however, earnestly pressed by counsel for the petitioner, but we do not think it tenable. By the Constitution a government is ordained and established " for the United States of America," and not for countries outside of their limits. The guarantees it affords against accusation of capital or infamous crimes, except b}- indictment or pre- sentment by a grand jurj^, and for an impartial trial bj- a jury when CHAP. III.] IN EE ROSS. 371 thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offences committed elsewhere, and not to residents or temporary sojourners abroad. Cook V. United States, 138 U. S. 157, 181. The Constitution can have no operation in another country'. When, therefore, the representatives or officers of our government are permitted to exercise authorit}' of anj' kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the otlier. The deck of a private American vessel, it is true, is considered for many purposes constructively as territory of. the United States, 3'et persons on board of such vessels, whether officers, sailors, or passen- gers, cannot invoke the protection of the provisions referred to until brought within the actual territorial boundaries of the United States. And, besides, their enforcement abroad in numerous places, where it would be highly important to have consuls invested with judicial autho- rity-, would be impracticable from the impossibility of obtaining a competent grand or petit jury. The requirement of such a body to accuse and to tr3' an offender would, in a majority of cases, cause an abandonment of all prosecution. The framers of the Constitution, who were fully aware of the necessity of having judicial authority' exercised by our consuls in non-Christian countries, if commercial intercourse was to be had with their people, never could have supposed that all the guarantees in the administration of the law upon criminals at home were to be transferred to such consular establishments, and applied before an American who had committed a felon}- there could be accused and tried. They must have known that such a requirement would de- feat the main pnrpose of investing the consul with judicial authority. While, therefore, in one aspect the American accused of crime com- mitted in those countries is deprived of the guarantees of the Constitu- tion against unjust accusation and a partial trial, yet in another aspect he is the. gainer, in being witlidrawn from the procedure of their tri- bunals, often arbitrary and oppressive, and sometimes accompanied With extreme crueltj' and torture. Letter of Mr. Cushing to Mr. Calhoun of September 29, 1844, accompanying President's message communicating abstract of treat\' with China, Senate Doc. 68, 28th Cong. 2d Sess. ; Letter on Judicial Jlxterritorial Rights by Secretary Frelinghuysen to Chairman of Senate Committee on Foreign Relations of April 29, 1882, Senate Doc. 89, 47th Cong. 1st Sess. ; Phillimore on Int. Law, vol. 2, part 7 ; Halleck on Int. Law, c. 41. . . . The jurisdiction of the consular tribunal, as is thus seen, is to be exercised and enforced in accordance with the laws of the United States ; "^fcf course in pursuance of them the accused will have an opportunif^oif examining the complaint against him, or will be pre- sented with a copy stating the\|fence he has committed, will be entitled to be confronted with the witnesses against him and to ci'oss-examine ihem, and to have the benefit of counsel; and, indeed, will have the benefit of all the provisions necessary to secure a fair trial before the 372 IN EE EOSS. [chap. III. consul and bis associates. The only complaint of this legislation made b5' counsel is that, in directing the trial to be had before the consul and associates summoned to sit with him, it does not require a previous presentment or indictment b^' a grand jur}-, and does not give to the accused a petit jur}'. The want of such clauses, as affecting the va- lidity of the legislation, we have already- considered. It is not pretended that the prisoner did not have, in other respects, a fair trial in the consular court. It is further objected to the proceedings in the consular court that the offence with which the petitioner was charged, having been com- mitted on board of a vessel of the United States in Japanese waters, was not triable before the consular court ; and that the petitioner, being a subject of Great Britain, was not within the jurisdiction of that court. These objections we will now proceed to consider. The argument presented in support of the first of these positions is briefly this. Congress has provided for the punishment of murder committed upon the high seas, or anj- arm or ba}' of the sea within the admiralty' and maritime jurisdiction of the United States, and out of the jurisdiction of anj- particular Slate ; and has provided that the trial of all offences committed upon the high seas, out of the jurisdiction of any particular State, shall be in the district where the offender is found or into which he is first brought. The term " high seas" includes waters on the sea-coast without the boundaries of low-water mark ; and the waters of the port of Yokohama constitute, within the meaning of the statute, high seas. Therefore it is contended that, although the ship Bullion was at the time lying in those waters, the offence for which the appellant was tried and convicted was committed on the high seas and within the jurisdiction of the domestic tribunals of the United States, and is not punishable elsewhere. In support of this position it is as- sumed that the jurisdiction of the consular court is limited to offences committed on land, within the territory of Japan, to the exclusion of offences committed on waters within that territory. There is, as it seem to us, an obvious answer to this argument. The jurisdiction to try offences committed on the high seas in the district where the offender ma}' be found, or into which he maj' be first brought, is not exclusive of the jurisdiction of the consular tribunal to try a similar offence when committed in a port of a foreign country in which that tribunal is established, and the offender is not taken to the United States. Tiiere is no law of Congress compelling the master of a vessel to carry or transport him to any home port when he can be turned oyer to a consular court having jurisdiction of similar offences committed in the foreign country. 7 Opinions Attys. Gen. 722. The provisions conferring jurisdiction in capital cases upon the consuls in Japan, when the offence is committed in that countrj-,°are embodied in the Revised Statutes, with the provisions as to the jurisdiction of domestic tribunals over such offences committed on the high seas ; and those statutes were re-enacted together, and, as re-enacted, went into operation at the same CHAP. III.] IN KE BOSS. 373 time. To both effect must be given in proper cases, where they are applicable. We do not adopt the limitation stated by counsel to the jurisdiction of the consular tribunal, -that it extends only to offences committed on land. Neither the treaty nor the Revised Statutes to carry them into effect contain any such limitation. The latter speak of offences committed in the country of Japan — meaning within the territorial jurisdiction of that country — which includes its ports and navigable waters as well as its lands. The position that the petitioner, being a subject of Great Britain, was not within the jurisdiction of the consular court, is more plausible, but admits, we think, of a suificient answer. The national character of the petitioner, for all the purposes of the consular jurisdiction, was determinable by his enlistment as one of the crew of the American ship Bullion. . . . It is true that the occasion for consular tribunals in Japan may here- after be less than at present, as every year that countr3' progresses in civilization and in the assimilation of its system of judicial procedure to that of Christian countries, as well as in the improvement of its penal statutes ; but the system of consular tribunals which have a general similarity in their main provisions, is of the highest importance, and their establishment in other than Christian countries, where our people may desire to go in pursuit of commerce, will often be essential for the protection of their persons and property. . . . Order affirmed^ 1 That the treaty power of the United States extends to all proper subjects of nego- tiation between our government and the governments of other nations^ is clear. It is also clear that the protection which should be afforded to the citizens of one country owning property in another, and the manner in which that property may be transferred, devised, or inherited, are fitting subjects for such negotiation and of regulation by mutual stipulations between the two countries. As commercial intercourse increases between different countries, the residence of citizens of one country within the territory of the other naturally follows, and the removal of their disability from alienage to hold, transfer, and inherit property in such cases tends to promote amicable relations Such removal has been within the present century the frequent subject of treaty arrangement. The treaty power, as expressed in the Qonstitution, is in terms un- limited except by those restraints which are found in that instrument against the action of tlie government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the char- acter of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. Fm-t Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat 259 ; Hauenstein v. Lynham, 100 U. S. 483; 8 Opinions Attys. Gen. 417 ; The People v. Gerke,5 Cal. 381. — Field, J., for the court in Geofroij V. Rigqs, 133 U. S. 258, 266. The case of Chirac v, CAirae, 2 Wheat 259 (1817), held that a treaty had done away with the incapacity of alienage imposed by certain State laws. In U. S. v. Forty-three Gallons of Whiskey, 93 U, S. 188, 197 (1876), Davis, J., for the court, said : "The power to make treaties with the Indian tribes is, as we have seen, coextensive with that to make treaties with foreign nations. In regard to the latter, it is, beyond doubt, ample to cover all the usual subjects of diplomacy. One of them relates to the 374 FONG YUE TING V. UNITED STATES. [CHAP. UI. FONG YUE TING" v. UNITED STATES. WONG QUAN V. UNITED STATES. LEE JOE V. UNITED STATES. Supreme Codkt of the United States. 1893. [149 U. S. 698.] These were three writs of habeas cq^^us, granted by the Circuit Court of the United States, for the Southern District of New York, upon petitions of Chinese laborers, arrested and held bj the marshal of the district for not having certificates of residence, under section 6 of the Act of May 5, 1892, c. 60, which is copied in the margin. . . . Each petition alleged that the petitioner was arrested and detained without due process of law, and that section 6 of the Act of May 5, 1892, was unconstitutional and void. In each case, the Circuit Court, after a hearing upon the writ of ha- beas corpus and the return of the marshal, dismissed the writ of habeas corpus, and allowed an appeal of the petitioner to this court, and ad- mitted him to bail pending the appeal. AU the proceedings, from the arrest to the appeal, took place on Ma^' 6. Mr. Joseph H. Choate and Mr. J. Hubley Ashton, for appellants. Mr. Maxwell Evarts was on Mr. Choate's brief. Mr. Solicitor- General, for appellees. Mk. Justice Gray, after stating the facts, delivered the opinion of the court. The general principles of public law which lie at the foundation of these cases are clearly established bj' previous judgments of this court, and by the authorities therein referred to. In the recent case of Nishimura Ekiu v. United States, 142 U. S. 651, 659, the court, in sustaining the action of the executive depart- ment, putting in force an Act of Congress for the exclusion of aliens, said : " It is an accepted maxim of international law, that every sover- eign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its domin- ions, or to admit them onl3' in such cases and upon such conditions as it may see fit to prescribe. In the United States, this power is vested in the national government, to which the Constitution has committed disability of the citizens or subjects of either contracting nation to take, by descent or devise, real property situate in the territory of the other. If a treaty to which the United States is a party removed such disability, and secured to them the right so to take and hold such property, as if they were natives of this country, it might contra- vene the statutes of a State ; but, in that event, the courts would disregard them, and give to the alien the full protection conferred by its provisions If this result can be thus obtained, surely the Federal government may, in the exercise of its acknowledged power to treat vrith Indians, make the provision in question, coming, as it fairly does, within the clause relating to the regulation of commerce." — Ed. CHAP. III.J FONG YUE TING V. UNITED STATES. 375 the entire control of international relations, in peace as well as in war. It belongs to the political department of the government, and may be exercised either through treaties made by the President and Senate, or through statutes enacted by Congress." The same views were more fully expounded in the earlier case of Chae Chan Ping v. United States, 130 U. S. 581, in which the validity of a former Act of Congress, excluding Chinese laborers from the United States, under the circumstances therein stated, was affirmed. In the elaborate opinion delivered by Mr. Justice Field, in behalf of the court, it was said: "Those laborers are not citizens of the United States ; they are aliens. That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversj'. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of an- other power." "The United States, in their relation to foreign coun- tries and their subjects or citizens, are one nation, invested with powers whicli belong to independent nations, the exercise of which can be in- voked for the maintenance of its absolute independence and security throughout its entire territory." 130 U. S. 603, 604. It was also said, repeating the language of Mr. Justice Bradley in Knox V. Lee, 12 Wall. 457, 555: "The United States is not only a government, but it is a national government, and the only government in this country that has the character of nationality. It is invested with power over all the foreign relations of the country, war, peace, and negotiations and intercourse with other nations ; all of which are forbid- den to the State governments." 130 U. S. 605. And it was added : "For local interests the several States of the Union exist; but for in- ternational purposes, embracing our relations with foreign nations, we are but one people, one nation, one power." 130 U. S. 606. The court then went on to say : "To preserve its independence, and give security against foreign aggression and encroachment, is the high- est duty of every "nation, and to atta,in these ends nearly all other con- siderations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowd- ing in upon us. The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth ; and its determination, so far as the subjects affected are concerned, is ne- cessarily conclusive upon all its departments and officers. If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and secur- ity, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. 376 FONG YUE TING V. UNITED STATES. [CHAP. III. The existence of war would render the necessity of the proceeding only more obvious and pressing. The»same necessitj', in a less pressing degree, maj' arise when war does not exist, and the same auihority which adjudges the necessity in one case must also determine it in the other. In both cases, its determination is conclusive upon the judiciary. If the government of the country of which the foreigners excluded are subjects is dissatisfied with this action, it can make complaint to the executive head of our government, or resort to any other measure which, in its judgment, its interests or dignity may demand ; and there lies its only remedy'. The power of the government to exclude foreigners from the countr}', whenever, in its judgment, the'^public interests require such exclusion, has been asserted in repeated instances, and never denied by the executive or legislative departments." 130 U. S. 606, 607. This statement was supported bj' many citations from the diplomatic corre- spondence of successive Secretaries of State, collected in Wharton's International Law Digest, § 206. The right of a nation to expel or deport foreigners, who have not been naturalized or taken anj- steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unquali- fied as the right to prohibit and prevent their entrance into the country. This is clearly aflBrmed in despatches referred to by the court in Chae Chan Icing's Case. In 1856, Mr. Marcj' wrote: "Every society pos- sesses the undoubted right to determine who shall compose its members, and it is exercised by all nations, both in peace and war. A memorable example of the exercise of this power in time of peace was the passage of the alien law of the United States in the j-ear 1798." In 1869, Mr. Fish wrote : " The control of the people within its limits, and the right to expel from its territory persons who are dangerous to the peace of the State, are too clearly within the essential attributes of sovereignty to be seriously contested." Wharton's International Law Digest, § 206 ; 130 U. S. 607. The statements of leading commentators on the law of nations are to the same effect. . . . The right to exclude or to expel all aliens, or any class of aliens, abso- lutely' or upon certain conditions, in war or in peace, being an inherent and inalienable right of every sovereign and independent nation, essen- tial to its safetj', its independence, and its welfare, the question now before the court is whether the manner in which Congress has exercised this right in sections 6 and 7 of the Act of 1892 is consistent with the Constitution. The United States are a sovereign and independent nation, and are vested bj' the Constitution with the entire control of international rela- tions, and with all the powers of government necessary to maintain that control and to make it effective. 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. CHAP. III.J FONG YUE TING V. UNITED STATES. 377 The Constitution of the Unit«d States speaks with no uncertain sound upon this subject. That instrument, established by the people of the United States as the fundamental law of the land, has conferred upon the President the executive power ; has made him the commander-in- chief of the army and navy ; has authorized him, by and with the con- sent of the Senate, to make treaties, and to appoint ambassadors, public ministers, and consuls ; and has made it his duty to take care that the laws be faithfully executed. The Constitution has granted to Congress the power to regulate commerce with foreign nations, including the en- trance of ships, the importation of goods, and the bi'inging of persons into the ports of the United States ; to establish a uniform rule of natu- ralization ; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations ; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water ; to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces ; and to make all laws necessary and proper for carrying into execution these powers, and all other powers vested bj' the Constitution in the government of the United States, or in any de- partment or officer thereof. And the several States are expressly for- bidden to enter into any treaty, alliance, or confederation ; to grant letters of marque and reprisal ; to enter into any agreement or compact with another State, or with a foreign power ; or to engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. In exercising the great power which the people of the United States, by establishing a written constitution as the supreme and paramount law, have vested in this court, of determining, whenever the question is properly brought before it, .whether tlie Acts of the legislature or of the executive are consistent with the Constitution, it behooves the court to be careful that it does not undertake to pass upon political questions, the final decision of which has been committed bj^ the Constitution to the other departments of the government. . . . The power to exclude or to expel aliens, being a power affecting inter- national relations, is vested in the political departments of the govern- ment, and is to be regulated by treaty or by Act of Congress, and to be executed by the executive authority according to the regulations so es- tablished, except so far as the judicial-department has been authorized by treaty or by statute, or is required by the paramount law of- the Constitution, to intervene. In Nishimura Ekiu's Case, it was adjudged that, although Congress might, if it saw fit, authorize the courts to investigate and ascertain the facts upon which the alien's right to land was made by the statutes to depend, yet Congress might intrust the final determination of those facts to an executive officer, and that, if it did so, his order was due process of law, and no other tribunal, unless expressly authorized by law to do so, was at liberty to re-examine the evidence on which he acted, or to controvert its sufficiency. 142 U. S. 660. 378 FONG YUK TING V. UNITED STATES. [CHAP. HL The power to exclude aliens and the power to expel them rest upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power. The power of Congress, therefore, to expel, like the power to exclude aliens, or any specified class of aliens, from the country-, maj' be exer- cised entirely through executive officers ; or Congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by Congress to depend. . . . In our jurisprudence, it is well settled that the provisions of an Act of Congress, passed in the exercise of its constitutional authority, on this, as on anj' other subject, if clear an if explicit, must be upheld by the courts, even in contravention of express stipulations in an earlier treaty. As was said by this court in Chae Chan Ping's Case, follow- ing previous decisions : " The treaties were of no greater legal obliga- tion than the Act of Congress. ~&y the Constitution, laws made in pursuance thereof and treaties made under the authority of the United States are both declared to be the supreme law of the land, and no paramount authorit}' is given to one over the other. A treat}', it is true, is in its nature a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amend- ment. If the treat}- operates by its own force, and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative Act, to be repealed or modified at the pleasure of Congress. In either case, the last expression of the sover- eign will must control." " So far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is'subject to such Acts as Congress may pass for its enforcement, modification, or repeal." 130 U. S. 600. See also Foster v. Neilson, 2 Pet. 253, 314 ; Fdye v. Hobertson, 112 U. S. 580, 597-599 ; Whitney v. Hobertson, 124 U. S. 190. By the supplementary Act of October 1, 1888, c. 1064, it was enacted, in section 1, that " from and after the passage of this Act, it shall be unlawful for any Chinese laborer, who shall at any time heretofore have been, or who may now or hereafter be, a resident within the United States, and who shall have departed or shall depart therefrom, and shall not have returned before the passage of this Act, to return to, or remain in, the United States ; " and in section 2, that " no certificates of iden- tity, provided for in the fourth and fifth sections of the Act to which this is a -supplement, shall hereafter be issued ; and every certificate heretofore issued in pursuance thereof is hereby declared void and of no effect, and the Chinese laborer claiming admission by virtue thereof shall not be permitted to enter the United States." 25 Stat. 504. . . . By the law of nations, doubtless, aliens residing in a country, with the intention of making it a permanent place of abode, acquire, in one sense, a domicil there ; and, while they are permitted by the nation to retain such a residence and domicil, are subject to its laws, and may CHAP. III.J FONG YUE TING V. UNITED STATES. 379 invoke its protection against other nations. This is recognized b}' those publicists who, as has been seen, maintain in the strongest terms the right of the nation to expel any or all aliens at its pleasure. Vattel, lib. 1, c. 19, § 213 ; 1 Phillimore, c. 18, § 321 ; Mr. Marcy, inKoszta's Case, Wharton's International Law Digest, § 198. See also Lau Ow B&w V. United States, 144 U. S. 47, 62; Merlin, Repertoire de Juris- prudence, Domicile, § 13, quoted in the case, above cited, of In re Adam, 1 Moore, P. C. 460, 472, 473. Chinese laborers, therefore, like all other aliens residing in the United States for a shorter or longer time, are entitled, so long as thej- are permitted by the government of the United States to remain in the country, to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and of property-, and to their civil and criminal responsibilitj-. But they continue to be aliens, having taken no steps towards becoming citizens, and incapable of be- coming such under the naturalization laws ; and therefore remain sub- ject to the power of Congress to expel them, or to order them to be removed and deported from the country, whenever in its judgment their removal is necessary or expedient for the public interest. . . . The question whether, and upon what conditions, these aliens shall be permitted to remain within the United States being one to be deter- mined b^' the political departments of the government, the judicial department cannot properly express an opinion upon the wisdom, the policy or the justice of the measures enacted by Congress in the exer- cise of the powers confided to it by the Constitution over this subject. ... In each of these cases the judgment of the Circuit Court, dismiss- ing the writ of habeas corpus, is right and must be Affirmed. [Brewer, J., Field, J., and Fuller, C. J., dissented.] NOTE. The scope of the judicial power of the United States is seen by the Constitution, Art. 3, s. 2, and Art. 6, cl. 2. But not all this power has ever been conferred upon the courts. Kent (Com. i. *314, 12th ed.) says : " The disposal of the judicial power, ex- cept in a few specified cases, belongs to Congress; and the courts cannot exercise juris- diction in every case to which the judicial power extends, without the intervention of Congress, who are not bound to enlarge the jurisdiction of the Federal courts to every subject which the Constitution might warrant. ... A considerable portion of the ju- dicial power, placed at the disposal of Congress by the Constitution, has been intention- ally permitted to lie dormant, by not being called into action by law." The student should acquaint himself with certain leading points as to the jurisdic- tion of the courts of the United States ; e. g. those which appear in Eev. St. U. S. ss. 639, 641, 687, 691-693 incl., 697, 699, 702, 705, 707, 709, and in the Appellate Courts Act, 26 U. S. Stat, at Large, 826. References to later statutes may be found in Gould and Tucker's Notes on the Rev. Stats. See also Curtis, Jurisdiction U. S. Courts, passim, and Foster's Federal Practice. — Ed. APPENDIX TO PART I. A CONSTITUTION OR FORM OF GOVERNMENT FOR THE COMMONWEALTH OF MASSACHUSETTS.* PREAMBLE. The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety' and tranquillity their natural rights, and the blessings of life : and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity, and happiness. The body politic is formed by a voluntary association of individuals • it ia a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to pro- vide for an equitable mode of making laws, as well as for an impartial interpretation and a faithful execution of them ; that every man may, at all times, find his security in them. We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence, or sur- prise, of entering into an original, explicit, and solemn compact with each other ; and of forming a new constitution of civil government, for ourselves and posterity ; and devoutly imploring His direction in so interesting a design, do agree upon, ordain, and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth or Massachusetts. PART THE FIRST. A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts. Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights ; among which may be reckoned the right of enjoying and defending their lives and liberties ; that of acquiring, possessing, and protecting property ; in fine, that of seeking and obtaining their safety and happiness. II. It is the right as well as the duty of all men in society, publicly, and at stated seasons, to worship the Supkeme Being, the great Creator and Preserver of the uni- verse. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience ; or for his religious profession of sentiments ; provided he doth not disturb the public peace, or obstruct others in their religious worship. ' Printed from the official edition of Massachusetts Acts and Resolves for 1893. This instrument went into operation in October, 1780. See ante, 54-55, 215, and 220. — Ed. 382 APPENDIX TO PART L ni.i [As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality ; and as these can- not be generally diffused through a community but by the institution of the public worship of God, and of public instructions in piety, religion, and morality : There- fore, to promote their happiness, and to secure the good order and preservation of their government, the people of this Commonwealth have a right to invest their legis- lature with power to authorize and require, and the legislature shall, from time to time, authorize and require the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion, and morality, in all cases where such pro- vision shall not be made voluntarily. And the people of this Commonwealth have also*a right to, and do, invest their legislature with authority to enjoin upon all the subjects an attendance upon the instructions of the public teachers aforesaid, at stated times and seasons, if there be any on whose instructions they can conscientiously and conveniently attend. Provided, notwithstanding, that the several towns, parishes, precincts, and other bodies politic, or religious societies, shall, at all times, have the exclusive right of electing their public teachers, and of contracting with them for their support and maintenance. And all moneys paid by the subject to the support of public worship, and of the public teachers aforesaid, shall, if he require it, be uniformly applied to the sup- port of the public teacher or teachers of his own religious sect or denomination, provided there be any on whose instructions he attends ; otherwise it may be paid towards the support of the teacher or teachers of the parish or precinct in which the said moneys are raised. And every denomination of Christians, demeaning themselves peaceably, and as good subjects of the Commonwealth, shall be equally under the protection of the law: and no subordination of any one sect or denomination to another shall ever be established by law]. IV. The people of this Commonwealth have the sole and exclusive right of govern- ing themselves, as a free, sovereign, and independent State ; and do, and forever here- after shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not hereafter be, by them expressly delegated to the United States of America, in Congress assembled. V. AH power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legis- lative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them. VI. .No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the com- munity, than what arises from the consideration of services rendered to the public ; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural. VII. Government is instituted for the common good ; for the protection, safety, prosperity, and happiness of the people ; and not for the profit, honor, or private in- terest of any one man, family, or class of men : Therefore the people alone have an incontestihle, unalienable, and indefeasible right to institute government ; and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require it. VIII. In order to prevent those who are vested with authority from becoming oppressors, the people have a right, at such periods and in such manner as they shall establish by their frame of government, to cause their public officers to return to private life; and to fill up vacant places by certain and regular elections and appointments. ' Amendment, Article XI. substituted for this. APPENDIX TO PAKT I. 383 IX. AH elections ought to be free ; and all the inhabitants of this Commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments. X. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, conse- quently, to contribute his share to the expense of this protection ; to give his personal service, or an equivalent, when necessary ; but no part of the property of any indi- vidual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this Commonwealth are not controllable by any other laws than those to which their con- stitutional representative body have given their consent. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. XI. Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it ; completely, and without any denial ; promptly, and without delay ; conformably to the laws. XII. No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially, and formally, described to him ; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favorable to him ; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election. And no .subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land. And the legislature shall not make any law that shall subject any person to a capital or infamous pujiishnient, excepting for the government of the army and navy, without trial by jury. XIII. In criminal prosecutions, the verification of facts, in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen. XIV. Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not pre- viously supported by oath or aifirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure : and no warrant ought to be issued hut in cases, and with the formalities prescribed by the laws. XV. In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised, the parties have a right to a trial by jury ; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it. XVI. The liberty of the press is essential to the security of freedom in a State : it ought not, therefore, to be restrained in this Commonwealth. XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be main- tained without the consent of the legislature ; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. XVIII. A frequent recurrence to the fundamental principles of the Constitution, aud a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty, and to maintain a free government. The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives : aud 384 APPENDIX TO PART L they have a right to require of their lawgivers and magistrates an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of the Commonwealth. XIX. The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good ; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer. XX. The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for. XXI. The freedom of deliberation, speech, and debate, in either house of the legis- lature, is so essential to the rights of the people, tha| it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever. XXII. The legislature ought frequently to assemble for the redress of grievances, for correcting, strengthening, and confirming the laws, and for making new laws, as the common good may require. XXIII. No subsidy, charge, tax, impost, or duties ought to be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people or their representatives in the legislature. XXIV. Laws made to punish for actions done before the existence of snch laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government. XXV. No subject ought, in any case, or in any time, to be declared guilty of treason or felony by the legislature. XXVI. No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments. XXVII. In time of peace, no soldier ought to be quartered in any house without the consent of the owner ; and in time of war,, such quarters ought not be made but by the civil magistrate, in a manner ordained by the legislature. XXVIII. No person can in any case be subject to law-martial, or to any penalties or pains, by virtue of that law, except those employed in the army or navy, and except the militia in actnal service, but by authority of the legislature. XXIX. It is essential to the preservation of the rights of every individual, his life, liberty, property, and character that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the rights of the people, and of every citizen, that the judges of the Supreme Judicial Court should hold their offices as long as they behave themselves well ; and that they should have honorable salaries ascer- tained and established by standing laws. XXX. In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them : the executive shall never exercise the legislative and judicial powers, or either of them : the judicial shall never exercise the legislative and executive powers, or either of them : to the end it may be a government of laws and not of men.i ^ " It is plain that where the law is made by one man there it may be unmade by one man ; so that the man is not governed by the law, but the law by the man , which amounts to the government of the man, and not of the law. Whereas the law being not to be made but by the many, no man is governed by another man, but by that only which is the common interest ; by which means this amounts to a government of laws and not of men." — James Hakkington, The AH of Lawgiving, Preface ; Oceana and Other Works, 3d ed. 386. " Sir," said Kufus Choate, in the Massachusetts Convention of 1853, for revising the Constitution of the State (1 Debates, 120), " that same Bill of Rights, which so solicit- ously separates executive, judicial, and legislative powers from each other, ' to the end,' — in the fine and noble expression of Harrington, borrowed from the ' ancient APPENDIX TO PART L 385 PART THE SECOND. The Frame of Government. The people, inhabiting the territory formerly called the Province of Massachusetts Bay, do hereby solemnly and mutually agree with each other, to form themselves into a free, sovereign, and independent body politic, or State, by the name of The Com- monwealth OF Massachusetts. CHAPTER I. THE LEGISLATIVE POWER. Section I. The General Court. Article I. The department of legislation shall be formed by two branches, a Senate and House of Representatives ; each of which shall have a negative on the other. The legislative body shall assemble every year [on the last Wednesday in May, and at such other times as they shall judge necessary ; and shall dissolve and be dissolved on the day next preceding the said last Wednesday in May ;] ' and shall be styled, The General Court of Massachusetts. II. No bill or resolve of the Senate or House of Representatives shall become a law, and have force as such, until it shall have been laid before the Governor for his revisal ; and if he, upon such revision, approve thereof, he shall signify his approbar bation by signing the same. But if he have any objection to the passing of such bill or resolve, he shall return the same, together with his objections thereto, in writing, to the Senate or House of Representatives, in whichsoever the same shall have originated ; who shall enter the objections sent down by the Governor, at large, on their records, and proceed to reconsider.the said bill or resolve. But if after such reconsideration, two-thirds of the said Senate or House of Representatives, shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and if approved by two-thirds of the members present, shall have the force of 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, or against, the said bill or resolve, shall be entered upon the public records of the Commonwealth. And in order to prevent unnecessary delays, if any bill or resolve shall not be returned by the Governor within five days after it shall have been presented, the same shall have the force of a law. III. The General Court shall forever have full power and authority to erect and constitute judicatories and courts of record, or other courts, to be held in the name of the Commonwealth, for the hearing, trying, and determining of all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes, and things, whatsoever, arising or happening within the Commonwealth, or between or concerning persons prudence,' one of those historical phrases of the old glorious school of liberty of which this Bill of Rights is so full, — and which phrases I entreat the good taste of my accomplished friends in my eye, to whom it is committed, to spare in their very rust, as they would spare the general English of the Bible, — ' to the end it may be a gov- ernment of laws, and not of men ; ' that same Bill of Rights separates the people, with the same solicitude, and for the same reason, from every part of their actual gov- ernment, — ' to the end it may be a government of laws and not of men.' " — Ed. 1 For change of time, etc., see Amendments, Art. X. VOL. I. — 23 386 APPENDIX TO PART I. inhabiting, or residing, or brought within the same : whether the same be criminal or civil, or whether the said crimes be capital or not capital, and whether the said pleas be real, personal, or mixed ; and for the awarding and making ont of execution there upon. To which courts and judicatories are hereby given and granted full power and authority, from time to time, to administer oaths or aiiirinatious, for the better discov- ery of truth in any matter iu controversy or depending before them. IV. And further, full power and authority are hereby given and granted to the said General Court, from time to time to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions, and instructions, either with penalties or without ; so as the same be not repugnant or contrary to this Consti- tution, as they shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government *thereof ; i and to name and settle annually, or provide by fixed laws for the naming and settling, all civil officers within the said Commonwealth, the election and constitution of whom are not hereafter in this form of government otherwise provided for ; and to set forth the several duties, powers, and limits, of the several civil and military officers of tliis Commonwealth, and the forms of such oaths or affirmations as shall be respectively administered unto them for 'the execution of their several offices and places, so as the same be not repug- nant or contrary to this Constitution ; and to impose and levy proportional and reason- able assessments, rates, and taxes, upon all the inhabitants of, and persons resident, and estates lying, within the said Commonwealth ; and also to impose and levy reason- able duties and excises upon any produce, goods, wares, merchandise, and commodities, whatsoever, brought into, produced, manufactured, or being within the same ; to be issued and disposed of by warrant, under the hand of the Governor of this Common- wealth for the time being, with the advice and consent of the Council, for the public service, in the necessary defence and support of the government of the said Common- wealth, and the protection and preservation of the subjects thereof, according to such acts as are or shall be in force within the same. And while the public charges of government, or any part thereof, shall be assessed on polls and estates, in the manner that has hitherto been practised, in order that such assessments may be made with equality, there shall be a valuation of estates within the Commonwealth, taken anew once in every ten years at least, and as much oftener as the General Court shall order. CHAPTER I. Section II. Senate. Article I.^ [There shall be annually elected, by the freeholders and other inhab- itants of this Commonwealth, qualified as in this Constitution is provided, forty persons 1 These words (and indeed the same is true of the whole of §§ III. and IV.), are taken from the Provincial Charter of 1691 (1 Poore's Charters, 951), with only such variations as are needed to adapt them to the new purposes : . . . " And we do further . . . give and grant to the said governor and the great and general court or as- sembly . . . full power and authority from time to time to make, ordain, and estab- lish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions, and instructions, either with penalties or without (so as the same be not repugnant or contrary to the laws of this our realm of England) as they shall judge to be for the good and welfare of our said province or territory, and for the gov- ernment and ordering thereof and of the people inhabiting or who shall inhabit the same, and for the necessary support and defence of the government thereof." — Ed. ^ Superseded by Amendments, Art. XIII., which was also superseded by Amend- ments, Art. XXII. For provision as to councillors, see Amendments, Art. XVI. APPENDIX TO PART I. 387 to be councillors and senators for the year ensuing their election ; to be chosen by the inhabitants of the districts into which the Commonwealth may, from time to time, be divided by the General Court for that purpose : and the General Court, in assigning the numbers to be elected by the respective districts, shall govern themselves by the pro- portion of the public taxes paid by the said districts ; and timely make known to the inhabitants of the Commonwealth the limits of each district, and the number of coun- cillors and senators to be chosen therein ; provided that the number of such districts shall never be less than thirteen ; and that no district be so large as to entitle the same to choose more than six senators. And the several counties in this Commonwealth shall, until the General Court shall determine it necessary to alter the said districts, be districts for the choice of council- lors and senators (except that the counties of Dukes County and Nantucket shall form one district for that purpose) and shall elect the following number for councillors and senators, viz. ; Suffolk, six ; Essex, six; Middlesex, five ; Hampshire, four ; Plymouth, three ; Barnstable, one ; Bristol, three ; York, two ; Uukes County and Nantucket, one ; Worcester, five ; Cumberland, one ; Lincoln, one ; Berkshire, two.] II. The Senate shall be the first branch of the legislature ; and the senators shall be chosen in the following manner, viz. : there shall be a meeting on the [first Mon- day in April],! annually, forever, of the inhabitants of each town in the several counties of this Commonwealth ; to be called by the selectmen, and warned in due course of law, at lea.st seven days before the [first Monday in April], for the purpose of electing persons to be senators and councillors ; [and at such meetings every male inhabitant of twenty- one years of age and upwards, having a freehold estate within the Commonwealth, of the annual income of three pounds, or any estate of the value of sixty pounds, shall have a right to give in his vote for the senators for the district of which he is an inhabitant].^ And to remove all doubts conceruiug the meaning of the word " in- habitant " in this Constitution, every person shall be considered as an inhabitant, for the purpose of electing and being elected into any office, or place within this State, in that town, district, or plantation where he dwelleth, or hath his home. The selectmen of the several towns shall preside at such meetings impartially ; and shall receive the votes of all the inhabitants of such towns present and qualified to vote for senators, and shall sort and count them in open town meeting, and in presence of the town clerk, who shall make a fair record, in presence of the selectmen, and in open town meeting, of the name of every person voted for, and of the number of votes against his name : and a fair copy of this record shall be attested by the selectmen and the town clerk, and shall be sealed up, directed to the Secretary of the Commonwealth for the time being, with a superscription, expressing the purport of the contents thereof, and delivered by the town clerk of such towns, to the sheriff of the county in which such town lies, thirty days at least before [the last Wednesday in May] ^ annually ; or it shall be delivered into the secretary's ofiice seventeen days at least before the said [last Wed- nesday in May] : and the sheriff of each county shall deliver all such certificates by him received, into the secretary's ofiSce, seventeen days before the said [last Wednesday in May]. And the inhabitants of plantations unincorporated, qualified as this Constitution pro- vides, who are or shall be empowered and required to assess taxes upon themselves toward the support of government, shall have the same privilege of voting for council- lors and senators in the plantations where they reside, as town inhabitants have in their respective towns ; and the plantation meetings for that purpose shall be held annually [on the same first Monday in April],* at such place in the plantations, respectively, as the assessors thereof shall direct ; which assessors shall have like authority for notifying the electors, collecting and returning the votes, as the selectmen and town clerks have in their several towns, by this Constitution. And all other persons living in places un- 1 See Amendments, Arts. X. and XV. As to cities, see Amendments, Art. II. 2 Superseded by Amendments, Arts. III., XX., XXVIII., XXX., XXXI., and XXXII. ' Time changed to first Wednesday of January. See Amendments, Art. X. * Time of election changed by Amendments, Art. XV. 388 APPENDIX TO PART I. incorporated (qualified as aforesaid) who shall he assessed to the support of government by the assessors of an adjacent town, shall have the privilege of giving in their votes for councillors and senators in the town where they shall be assessed, and be notified of the place of meeting by the selectmen of the town where they shall be assessed, for that purpose, accordingly. III. And that there may be a due convention of senators on the [last Wednesday in MayJ ' annually, the Governor with five of the Council, for the time being, shall, as soon as may be, examine the returned copies of such records ; and fourteen days before the said day he shall issue his summons to such persons as shall appear to be chosen by [a majority of] ^ voters, to attend on that day, and take their seats accordingly: pro- vided, nevertht'less, that for the first year the said returned copies shall be examined by the president and five of the council of the former constitution of government ; and the said president shall, in like manner, issue his summons to the persons so elected, that they may take their seats as aforesaid. lY. The Senate shall be the final judge of the elections, returns, and qualifications of their own members, as pointed out in the Constitution ; and shall [on the said last Wednesday in May] ' annually, determine and declare who are elected by each district to be senators [by a majority of votes ; and in case there shall not appear to be the full number of senators returned elected by a majority of votes for any district, the deficiency shall be supplied in the following manner, viz. : The members of the House of Representatives, and such senators as shall be declared elected, shall take the names of such persons as shall be found to have the highest number of votes in such district, and not elected, amounting to twice the number of senators wanting, if there be so many voted for ; and out of these shall elect by ballot a number of senators sufficient to fill up the vacancies in such district ; and in this manner all such vacancies shall be filled up in every district of the Commonwealth ; and in like manner all vacancies in the senate, arising by death, removal out of the State, or otherwise, shall be supplied as soon as may be, after such vacancies shall happen].* v. Provided, nevertheless, that no person shall be capable of being elected as a senator [who is not seised in his own right of a freehold, within this Commonwealth, of the value of three hundred pounds at least, or possesised of personal estate to the value of six hundred pounds at least, or of both to the amount of the same sum, and) ^ who has not been an inhabitant of this Commonwealth for the space of five years immediately preceding his election, and, at the time of his election, he shall be an inhabitant in the district for which he shall be chosen. VI. The Senate shall have power to adjourn themselves, provided such adjourn- ments do not exceed two days at^a time. VII. The Senate shall choose its own president, appoint its own officers, and deter- mine its own rules of proceedings. VIII. The Senate shall be a court with full authority to hear and determine all impeachments made by the House of Representatives, against any officer or officers of the Commonwealth, for misconduct and mal-administration in their offices. But pre- vious to the trial of every impeachment the members of the Senate shall respectively be sworn, truly and impartially to try and determine the charge in question, according to evidence. Their judgment, however, shall not extend further than to removal from office and disqualification to hold or enjoy any place of honor, trust or profit, imder this Commonwealth ; but the party so convicted shall be, nevertheless, liable to indictment, trial, judgment, and punishment, according to the laws of the land. IX. [Not less than sixteen members of the Senate shall constitute a quorum for doing business.]' 1 Time changed to first Wednesday in January by Amendments, Art. X. 2 Majority changed to plurality by Amendments, Art. XIV. ' Time changed to first Wednesday of January by Amendments, Art. X. * Majority changed to plurality by Amendments, Art. XIV. Changed to election by people. See Amendments, Art. XXIV. 5 Property qualification abolished. See Amendments, Art. XHL 8 See Amendments, Arts. XXII. and XXXIII. APPENDIX TO PAUT I, 389 CHAPTER I. Section III. Bouse of Representatives, Article I. There shall be, in the legislature of this Commonwealth, a representsk- tion of the people, annually elected, and founded upon the principle of equality. II. [And in order to provide for a representation of the citizens of this Common- wealth, founded u^on the principle of equality, every corporate town containing one hundred and fifty ratable polls may elect one representative ; every corporate town containing three hundred and seventy-five ratable polls may elect two representatives ; every corporate town containing six hundred ratable polls may elect three represen- tatives ; and proceeding in that manner, making two hundred and twenty-five ratable polls the mean increasing number for every additional representative. Provided, nevertheless, that each town now incorporated, not having one hundred and fifty ratable polls, may elect one representative ; but no place shall hereafter be incorporated with the privilege of electing a representative, unless there are within the same one hundred and fifty ratable polls.]' And the House of Representatives shall have power from time to time to Impose fines upon such towns as shall neglect to choose and return members to the same, agreeably to this Constitution. The expenses of travelling to the General Assembly, and returning home, once in every session, and no more, shall be paid by the g;overnment, out of the public treas- ury, to every member who shall attend as seasonably as he can, in the judgment of the house, and does not depart without leave. III. Every member of the House of Representatives shall be chosen by written votes ; [and, for one year at least next preceding his election, shall have been an inhabitant of, and have been seised in his own right of a freehold of the value of one hundred pounds within the town he shall be chosen to represent, or any ratable estate to the value of two hundred pounds ; and he shall cease to represent the said town immediately on his ceasing to be qualified as aforesaid].'' IV. [Every male person, being twenty-one years of age, and resident in any par- ticular town in this Commonwealth for the space of on6 year next preceding, having a freehold estate within the said town of the annual income of three pounds, or any estate of the value of sixty pounds, shall have a right to vote in the choice of a representative or representatives for the said town.]' V. [The members of the House of Representatives shall be chosen annually in the month of May, ten days at least before the last Wednesday of that month.]* VI. The House of Representatives shall be the grand inquest of this Common- wealth ; and all impeachmeiits made by them shall be heard and tried by the Senate. VII. All money bills shall originate in the House of Representatives ; but the Senate may propose or concur with amendments, as on other bills. VIII. The House of Representatives shall have power to adjourn themselves ; provided such adjournment shall not exceed two days at a time. IX. [Not less than sixty members of the House of Representatives shall constitute a quorum for doing business.]^ 1 Superseded by Amendments, Arts. XII. and XIII., which were also superseded by Amendments, Art. XXI. 7 Mass. 523. 2 New provision as to residence. See Amendments, Art. XXI. Property qualifica- tions abolished by Amendments, Art. XIII. * These provisions superseded by Amendments, Arts III., XX., XXVIII., XXX., XXXI., and XXXII. See also Amendments, Art. XXIII., which was annulled by Art. XXVI. ♦ Time of election changed by Amendments, Art. X., and changed again by Amend- ments, Art. XV. s See Amendments, Arts. XXI. and XXXIII. 390 APPENDIX TO PART I. X. The House of Representatives shall be the judge of the returns, elections, and qualifications of its own members, as pointed out in the Constitution ; shall choose their own speaker ; appoint their own officers, and settle the rules and orders of pro- ceeding in their own house. Tliey shall have authority to punish by imprisonment every person, not a member, who shall be guilty of disrespect to the house, by any disorderly or contemptuous behavior in its presence ; or who, in the town where the General Court is sitting, and during the time of its sitting, shall threaten harm to the body or estate of any of its members, for any thing said or done in the house ; or who shall assault any of them therefor ; or who shall assault, or arrest, any witness, or other person, ordered to attend the house, in his way in going or returning ; or who shall rescue any person arrested by the order of the house. And no member of the House of Representatives shall be arrested, or held to bail on mean process, during his going unto, returning from, or his attending the General Assembly. XI. The Senate shall have the same powers in the like cases ; and the Governor and Council shall have the same authority to punish in like cases : provided, that no imprisonment on the warrant or order of the Governor, Council, Senate, or House of Representatives, for either of the above described offences, be for a term exceeding thirty days. And the Senate and House of Representatives may try and determine all cases where their rights and privileges are concerned, and which, by the Constitution, they have authority to try and determine, by committees of their own members, or in such other way as they may respectively think best. CHAPTER II. I EXECUTIVE POWER. Section I. Governor. Article I. There shall be 9, supreme executive magistrate, who shall be styled — The Governor of the Commonwealth or Massachusetts ; and whose title shall be — His Excellency. II. The Governor shall be chosen annually ; and no person shall be eligible to this office, unless, at the time of his election, he shall have been an inhabitant of this Commonwealth for seven years next preceding ; [and unless he shall at the same time be seised, in his own right, of a freehold, within the Commonwealth, of the value of one thousand pounds] ; [and unless he shall declare himself to be of the Christian religion].' III. Those persons who shall be qualified to vote for senators and representatives within the several towns of this Commonwealth shall, at a meeting to be called for that purpose, on the [first Monday of April] ^ annually, give in their votes for a Gov- ernor, to the selectmen, who shall preside at such meetings ; and the town clerk, in the presence and with the assistance of the selectmen, shall, in open town meeting, sort and count the votes, and form a list of the persons voted for, with the number of votes for each person against his name ; and shall make a fair record of the same in the town books, and a public declaration thereof in the said meeting; and shall, in the presence of the inhabitants, seal up copies of the said list, attested by him and the select- men, and transmit the same to the sheriff of the county, thirty days at least before the [last Wednesday in May] ; ^ and the sheriff shall transmit the same to the secretary's 1 [See Amendments, Arts. VII. and XXIV.] ^ Time of election changed by Amendments, Art. X., and changed again by Amend- ments, Art. XV. ' Time changed to first Wednesday of January by Amendments, Art. X. APPENDIX TO PART I. 391 office, seventeen days at least before the said [last Wednesday in May] ; or the select- men may cause returns of the same to be made to the office of the Secretary of the Commonwealth, seventeen days at least before the said day ; and the secretary shall lay the same betore the Senate and the House of Representatives on the [last Wednes- day in May], to be by them examined ; and [in case of an election by a majority of all the votes returned],' the choice shall be by them declared and published ; [but if no per- son shall have a majority of votes, the House of Representatives shall, by ballot, elect two out of four persons who had the highest number of votes, if so many shall have been voted for ; but, if otherwise, out of the number voted for ; and make return to the Senate of the two persons so elected ; on which the Senate shall proceed, by ballot, to elect one, who shall be declared Governor] IV. The Governor shall have authority, from time to time, at his discretion, to assemble and call together the councillors of this Commonwealth for the time being ; and the Governor with the said councillors, or five of them at least, shall, and may, from time to time, hold and keep a Council, for the ordering and directing the affairs of the Commonwealth, agreeably to the Constitution and the laws of the land. V. The Governor, with advice of Council, shall have full power and authority, during the session of the General Court, to adjourn or prorogue the same to any time the two houses shall desire; [and to dissolve the same on the day next preceding the last Wednesday in May ; and, in the recess of the said court, to prorogue the same from time to time, not exceeding ninety days in any one recess] ; ^ and to call it together sooner than the time to which it may be adjourned or prorogued, if the welfare of the Commonwealth shall require the same ; and in case of any infectious distemper pre- vailing in the place where the said court is next at any time to convene, or any other cause happening, whereby danger may arise to the health or lives of the members from their attendance, he may direct the session to be held at some other, the most convenient place within the State. « [And the Governor shall dissolve the said General Court on the day next preceding the last Wednesday in May.]' VI. In cases of disagreements between the two Houses, with regard to the neces- sity, expediency, or time of adjournment or prorogation, the Governor, with advice of the Council, shall have a right to adjourn or prorogue the General Court, not exceeding ninety days, as he shall determine the public good shall require. VII. The Governor of this Commonwealth, for the time being, shall be the com- mander-in-chief of the army and navy, and of all the military forces of the State, by sea and land ; and shall have full power, by himself, or by any commander, or other officer or officers, from time to time, to train, instruct, exercise, and govern the mUitia and navy ; and, for the special defence and safety of the Commonwealth, to assemble in martial array, and put in warlike posture, the inhabitants thereof, and to lead and conduct them, and with them to encounter, repel, resist, expel, and pursue, by force of arms, as well by sea as by laud, within or without the limits of this Commonwealth, and also to kill, slay, and destroy, if necessary, and conquer, by all fitting ways, enter- prises, and means whatsoever, all and every such person and persons as shall, at any time hereafter, in a hostile manner, attempt or enterprise the destruction, invasion, detriment, or annoyance of this Commonwealth ; and to use and exercise over the army and navy, and over the militia in actual service, the law-martial, in time of war or invasion, and also in time of rebellion, declared by the legislature to exist, as occa- sion shall necessarily require ; and to take and surprise, by all ways and means what- soever, all and every such person or persons, with their ships, arms, ammunition, and other goods, as shall, in a hostile manner, invade, or attempt the invading, conquering, or annoying this Commonwealth ; and that the Governor be intrusted with all these and other powers, incident to the offices of captain-general and commander-in-chief, and admiral, to be exercised agreeably to the rules and regulations of the Constitution, and the laws of the land, and not otherwise, 1 Changed to plurality by Amendments, Art. XIV. 2 As to dissolution, see Amendments, Art. X. ° As to dissolution, see Amendments, Art. X. 392 APPENDIX TO PART I. Provided, that the said Governor shall not, at any time hereafter, by virtue of any power by this Constitution granted, or hereafter to be granted to him by the legisla- ture, transport any of the inhabitants of this Commonwealth, or oblige them to march out of the limits of the. same, without their free and voluntary consent, or the consent of the General Court ; except so far as may be necessary to march or transport thera by land or water, for the defence of such part of the State to which they cannot other- wise conveniently have access. VIII. The power of pardoning offences, except such as persons may be convicted of before the Senate by an impeachment of the house, shall be in the Governor, by and with the advice of Council ; but no charter of pardon, granted by the Governor, with advice of the Council before conviction, shall avail the party pleading the same, not- withstanding any general or particular expressions contained therein, descriptive of the offence or offences intended to be pardoned. ♦ IX. All judicial officers [the attorney-general], the solicitor-general [all sheriffs], coroners [and registers of probate],^ shall be nominated and appointed by the Governor, by and with the advice and consent of the Council ; and every such nomination shall be made by the Governor, and made at least seven days prior to such appointment. X. The captains and subalterns of the militia shall be elected by the written votes of the train-band and alarm lists of their respective companies [of twenty-one years of age and upwards] ; ^ the field officers of regiments shall be elected by the written votes of the captains and subalterns of their respective regiments; the brigadiers shall be elected, in like manner, by the field officers of their respective brigades ; and such officers, so elected, shall be commissioned by the Governor, who shall determine their rank. The legislature shall, by standing laws, direct the time and manner of convenii^g the electors, and of collecting votes,, and of certifying to the Governor the officers elected. ^ The major-generals shall be. appointed by the Senate and House of Bepresentatives, each having a negative upon the other ; and be commissioned by the Governor. And if the electors of brigadiers, field officers, captains, or subalterns, shall neglect or refuse to make such elections, after being duly notified, according to the laws for the time being, then the Governor, with advice of CouncU, shall appoint suitable persons to fill such offices. [And no officer, duly commissioned to command in the militia, shall be removed from his office, but by the address of both Houses to the Governor, or by fair trial in court-martial, pursuant to the laws of the Commonwealth for the time being.]^ The commanding officers of regiments shall appoint their adjutants and quarter- masters ; the brigadiers their brigade-majors ; and the major-generals their aids ; and the Governor shall appoint the adjutant:general. The Governor, with advice of Council, shall appoint all officers of the continental army, whom by the confederation of the United States it is provided that this Common- wealth shall appoint, as also all officers of forts and garrisons. The divisions of the militia into brigades, regiments, and companies, made in pur- suance of the militia laws now in force, shall be considered as the proper divisions of the militia of this Commonwealth, until the same shall be altered in pursuance of some future law. XI. No moneys shall be issued out of the treasury of this Commonwealth, and dis- posed of (except such sums as may be appropriated for the redemption of bills of credit or treasurer's notes, or for the payment of interest arising thereon) but by warrant under the hand of the Governor for the time being, with the advice, and consent of the Council, for the necessary defence and support of the Commonwealth ; and for the 1 For provisions as to election of Attorney-General, see Amendments, Art. XVII. For provision as to election of Sheriffs, Registers of Probate, etc., see Amendments, Art. XIX- For provision as to appointment of Notaries Public, see Amendments, Art. IV. * Limitation of age struck out by Amendments, Art. V. ' Superseded by Amendments, Art. IV. APPENDIX TO PART I. 393 protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the General Court. XII. All public boards, the commiissary-general, all superintending officers of pub- lic magazines and stores, belonging to this Commonwealth, and all commanding officers of forts and garrisons within the same, shall once in every three months, officially, and without requisition, and at other times, when required by the Governor, deliver to him an account of all goods, stores, provisions, ammunition, cannon with their appendages, and small arms with their accoutrements, and of all other public property whatever under their care respectively; distinguishing the quantity, number, quality, and kind of each, as particularly as may be ; together with the condition of such forts and gar- risons ; and the said commanding officer shall exhibit to the Governor, when required by him, true and exact plans of such forts, and of the land and sea or harbor or harbors, adjacent. And the said boards, and all public officers, shall communicate to the Governor, as soon as may be after receiving the same, all letters, despatches, and intelligences of a public natiire, which shall be directed to them respectively. XIII. As the public good requires that the Governor should not be under the undue influence of any of the members of the General Court by a dependence on them for his support, that he should in all cases act with freedom for the benefit of the public, that he should not have his attention necessarily diverted from that object to his private concerns, and that he should maintain the dignity of the Cbminonwealth in the char- acter of its chief magistrate, it is necessary that he should have an honorable stated salary of a fixed and permanent value, amply sufficient for those purposes, and estab- lished by standing laws : and it shall be among the first acts of the General Court, after the commencement of this Constitution, to establish such salary by law accordingly. Permanent and honorable salaries shall also be established by law for the justices of the Supreme Judicial Bench. And if it shall be found that any of the salaries aforesaid, so established, are insuffi- cient, they shall, from time to time, be enlarged, as tbe General Court shall judge proper. CHAPTER II. Section II. Lieutenant- Governor. Article I. There shall be annually elected a lieutenant-governor of the Com- monwealth of Massachusetts, whose title shall be — His Honok ; and who shall be qualified, in point of [religion],^ property, and residence in the Commonwealth, in the same manner with the Governor ; and the day and manner of his election, and the qualifications of the electors, shall be the same as are required in the election of a Governor. The return of the votes for this officer, and the declaration of his election, shall be in the same manner ; [and if no one person shall be found to have a majority of ill the votes returned, the vacancy shall be filled by the Senate and House of Kepre- sentatives, in the same manner as the Governor is to be elected, in case no one person shall have a majority of the votes of the people to be Governor.]^ II. The Governor, and in his absence the Lieutenant-Governor, shall be president of the Council, but shall have no vote in council, and the Lieutenant-Governor shall always be a member of the Council, except when the chair of the Governor shall be vacant. III. Whenever the chair of the Governor shall be vacant, by reason of his death, ot absence from the Commonwealth, or otherwise, the Lieutenant-Governor, for the time being, shall, during such vacancy, perform all the duties incumbent upon the Governor, and shall have and exercise all the powers and authorities, which by this Constitution the Governor is vested with, when personally present. 1 See Amendments, Arts. VII. and XXXIV. 2 Election by plurality provided for by Amendments, Art. XIV. 394 APPENDIX TO PART L CHAPTER IL Section III. Council, and the Manner of Settling Elections by the Legislature. ARTictE I. There shall be a Council for advising the Governor in the executive part of the government, to consist of [nine] i persons besides the Lieatenant-Governor, whom the Governor, for the time being, shall have full power and authority from time to time at his discretion to assemble and call together ; and the Governor, with the said councillors, or five of them at least, shall and may, from time to time, hold and keep a Conncil, for the ordering and directing the affairs of the Commonwealth, according to the laws of the land. II. [Nine councillors shall be annually chosen from among the persons returned for councillors and senators, on the last Wednesday in May, by the joint ballot of the senators and representatives assembled in one room ; and in case there shall not be found upon the first choice, the whole number of nine persons who will accept a seat in the Council, the deficiency shall be made up by the electors aforesaid from among the people at large ; and the number of senators left shall constitiite the Senate for the year. The seats of the persons thus elected from the Senate, and accepting the trust, shall be vacated in the Senate.]* III. The councillors, in the civil arrangements of the Commonwealth, shall have rank next after the Lieutenant-Governor. IV. [Not more than two councillors shall be chosen out of any one district of this Commonwealth.]' V. The resolutions and advice of the Council shall be recorded in a, register, and signed by the members present ; and this record may be called for at any time by either house of the legislature ; and any member of the Council may insert his opinion, contrary to the resolution of the majority. VI. Whenever the office of the Governor and Lieutenant-Governor shall be vacant, by reason of death, absence, or otherwise, then the Council, or the major part of them, shall, during such vacancy, have full power and authority to do, and execute, all and every such acts, matters, and things, as the Governor or lieutenant-governor might or could, by virtue of this Constitution, do or execute, if they, or either of them, were personally present. VII. [And whereas the elections appointed to be made, by this Constitution, on the last Wednesday in May annually, by the two Houses of the legislature, may not be completed on that day, the said elections may be adjourned from day to day until the same shall be completed. And'the order of elections shall be as follows : The vacan- cies in the Senate, if any, shall first be filled up ; the Governor and Lieutenant-Governor shall then be elected, provided there should be no choice of them by the people ; and afterwards the two Houses shall proceed to the election of the Council.]* 1 Number of councillors changed to eight. See Amendments, Art. XVI. ' Modified by Amendments, Arts. X. and XIII. Superseded by Amendments, Art. XVI. ' Superseded by Amendments, Art. XVI. * Superseded by Amendments, Arts. XVI. and XXV. APPENDIX TO PART I.- 395 CHAPTER II. Section IV. Secretary, Treasurer, Commissary, etc. Article I. [The secretary, treasurer, and receiver-general, and the commissary- general, notaries public, and] i naval officers, shall be chosen annually, by joint ballot of the senators and representatives in one room. And, that the citizens of this Com- monwealth may be assured, from time to time, that the moneys remaining in the public treasury, upon the settlement and liquidation of the public accounts, are their prop- erty, no man shall be eligible as treasurer and receiver-general more than five years successively. II. The records of the Commonwealth shall be kept in the office of the secretary, who may appoint his deputies, for whose conduct he shall be accountable ; and he shall attend the Governor and Council, the Senate and House of Representatives, in person, by his deputies, as they shall respectively require. CHAPTER III. JUDICIARY POWER. Article I. The tenure, that all commission officers shall by law have in their offices, shall be expressed in their respective commissions. All judicial officers, duly appointed, commissioned, and sworn, shall hold their offices during good behavior, excepting such concerning whom there is different provision made in this Constitution : provided, nevertheless, the Governor, with consent of the Council, may remove them upon the address of both houses of the legislature. II. 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 occasions. III. In order that the people may not suffer from the long continuance in place of any justice of the peace who shall fail of discharging the important duties of his office with ability or fidelity, all commissions of justices of the peace shall expire and become void, in the term of seven years from their respective dates ; and, upon the expiration of any commission, the same may, if necessary, be renewed, or another person appointed, as shall most conduce to the well-being of the Commonwealth. IV. The judges of probate of wiUs, and for granting letters of administration, shall hold their courts at such place or places, on fixed days, as the convenience of the people shall require ; and the legislature shall, from time to time, hereafter, appoint such times and places ; until which appointments, the said courts shall be holdeu at the times and places which the respective judges shall direct. V. All causes of marriage, divorce, and alimony, and all appeals from the judges of probate, shall be heard and determined by the Governor and Council, until the legislature shall, by law, make other provision. CHAPTER IV. DELEGATES TO CONGRESS. [The delegates of this Commonwealth to the Congress of the United States, shall, some time in the month of June, annually, be elected by the joint ballot of the Senate * Eor provision as to election of Secretary, Treasurer, and Receiver-General, and Auditor and Attorney-General, see Amendments, Art. XVII. 396 .APPENDIX TO PART I. and House of Eepresentatives, assembled together in one room ; to serve in Congress for one year, to commence on the first Monday in November then next ensuing. They shall have commissions under the hand of the Governor, and the great seal of the Commonwealth ; but may be recalled at any time within the year, and others chosen and commissioned, in the same manner, in their stead.] CHAPTER V. THE UmVESSITT AT CAMBBIDGE AND ENCOUBAGEMEKT OF LITEBATUBE, ETC. Section I. The Universiti/. Aeticlb I. Whereas our wise and pious ancestors, so early as the year one thou- sand six hundred and thirty-six, laid the foundation of Harvard College, in which university many persons of great eminence have, by the blessing of God, been initiated in those arts and sciences which qualified them for public employments, both in Church and State ; and whereas the encouragement of aits and sciences, and all good litera- ture, tends to the honor of God, the advantage of the Christian religion, and the great benefit of this and the other United States of America, — it is declared, that the Pbesident and Fellows of Haevaed College, in their corporate capacity, and their successors in that capacity, their ofiicers and servants, shsdl have, hold, use, exer- cise, and en}oy,Lall the powers, authorities, rights, liberties, privileges, immunities, and franchises, which they now have, or are entitled to have, hold, use, exercise, and enjoy ; and the same are hereby ratified and confirmed unto them, the said President and Fellows of Harvard College, and to their successors, and to their officers and servants, respectively, forever. II. And whereas there have been at sundry times, by divers persons, gifts, grants, devises of houses, lands, tenements, goods, chattels, legacies, and conveyances, hereto- fore made, either to Harvard College in Cambridge, in New England, or to the Presi- dent and Fellows of Harvard College, or to the said college by some other description, under several charters successively ; it is declared, that all the said gifts, grants; devises, legacies, and conveyances, are hereby forever confirmed unto the President and Fellows of Harvard College, and to their successors in the capacity aforesaid, according to the true intent and meaning of the donor or donors, grantor or grantors, devisor or devisors. III. And whereas, by an Act of the General Court of the colony of Massachusetts Bay, passed in the year one thousand six hundred and forty-two, the Governor and Deputy-Governor, for the time being, and all the magistrates of that iurisdiction, were, with the President, and a number of the clergy in the said Act described, constituted the overseers of Harvard College ; and it being necessary, in this new constitution of government to ascertain who shall be deemed successors to the said Governor, Deputy- Governor, and magistrates ; it is declared, that the Governor, Lieutenant-Governor, council, and senate of this Commonwealth, are, and shall be deemed, their successors, who, with the President of Harvard College, for the time being, together with the ministers of the congregational churches in the towns of Cambridge, Watertown, Charlestown, Boston, Roxbury, and Dorchester, mentioned in the said Act, shall be, and hereby are, vested with all the powers and authority belonging, or in any way appertaining to the overseers of Harvard College ; provided, that nothing herein shall be construed to prevent the legislature of this Commonwealth from making such alterations in the government of the said university, as sbaU be conducive to its advantage, and the interest of the republic of letters, in as full a manner as might have been done by the legislature of the late Province of the Massachusetts Bay. APPEKDIX TO PART I. 397 CHAPTER V. Section II. The Encouragement of Literature, etc. Wisdom and kaowledge, as well as virtue, difEused generally among the body of the people, being necessary for the preservation of their rights and liberties ; and as these depend on Spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislatures and magistrates, in all future periods of this Commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them ; especially the university at Cambridge, public schools and grammar schools in the towns ; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country ; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punc- tuality in their dealings; sincerity, good-humor, and all social affections, and gen- erous sentiments, among the people. CHAPTER VI. OATHS AND SUBSCRIPTIONS ; INCOMPATIBILITY OP AND EXCLUSION PEOM OPFICB8 J PECUNIARY QUALIFICATIONS ; COMMISSIONS ; WRITS ; CONFIRMATION OP LAWS ; HABEAS CORPUS ; THE ENACTING STYLE j CONTINUANCE OF OFFICERS J PROVI- SION FOR A FUTURE REVISAL OF THE CONSTITUTION, ETC. Article I. [Any person chosen governor, lieutenant-governor, councillor, senator, or representative, and accepting the trust, shall, before he proceed to execute the duties of his place or office, make and subscribe the following declaration, viz. : — " I, A. B., do declare, that I believe the Christian religion, and have a firm persua- sion of its truth ; and that I am seised and possessed, in my own right, of the property required by the Constitution, as one qualification for the office or place to which I am elected." And the Governor, Lieutenant-Governor, aud councillors, shall make and subscribe the said declaration, in the presence of the two Houses of Assembly ; and the senators and representatives, first elected under this Constitution, before the President and five of the Council of the former Constitution ; and forever afterwards before the Governor and Council for the time being.] ' And every person chosen to either of the places or offices aforesaid, as also any per- son appointed or commissioned to any judicial, executive, military, or other office under the government, shall, before he enters on the discharge of the business of his place or office, take and subscribe the following declaration, and oaths or affirmations, viz. : — [" I, A. B., do truly and sincerely acknowledge, profess, testify, and declare, that the Commonwealth of Massachusetts is, and of right ought to be, a free, sovereign, and inde- pendent State ; and I do swear, that I will bear true faith and allegiance to the said Com- monwealth, and that I will defend the same against traitorous conspiracies and all hostile attempts whatsoever ; and that I do renounce and abjure all allegiance, subjection, and obedience to the king, queen, or government of Great Britain (as the case may be), and every other foreign power whatsoever; and that no foreign prince, person, prelate, State, or potentate, hath, or ought to have, any jurisdiction, superiority, pre- eminence, authority, dispensing, or other power, in any matter, civil, ecclesiastical, or spiritual, within this Commonwealth, except the authority and power which is or may be vested by their constituents in the Congress of the United States : and I do further 1 Abolished. See amendments, Art. VII. 398 APPENDIX TO PART I. testify and declare, that no man or body of men hath or can have any right to absolve or discharge me from the obligation of this oath, declaration, or affirmation ; and that 1 do make this acknowledgment, profession, testimony, declaration, denial, renuncia- tion, and abjuration, heartily and truly, according to the common meaning and accep- tation of the foregoing words, without any equivocation, mental evasion, or secret reservation whatsoever. So help me, God.] ^ " I, A. B., do solemnly swear and affirm, that I will faithfully and impartially dis- charge and perform all the duties incumbent on me as , according to tlie best of my abilities and understanding, agreeably to the rules and regulations rff the Consti- tution and the laws of the Commonwealth. So help me, God." Provided, always, that when any person chosen or appointed as aforesaid, shaU be of the denomination of the people called Quakers, and sliall decline taking the said oath[8], he shall make his affirmation in the foregoing form, and subscribe the same, omitting the words [" / do swear," " and abjure," " oath or," " and abjuration," in the first oath^ and in the second oath, the words] "swear and," and [in each of them] the words "So help me, God ; " subjoining instead thereof, " This I do under the pains and penalties of perjury." And the said oaths or affirmations shall be taken and subscribed by the Governor, Lieutenant-Governor, and councillors, before the President of the Senate, in the pres- ence of the two Houses of Assembly; and by the senators and representatives first elected under this Constitution, before the President and five of the Council of the former Constitution ; and forever afterwards before the Governor and Council for the time being ; and by the residue of the officers aforesaid, before such persons and in such manner as from time to time shall be prescribed by the legislature. II. No governor, lieutenant-governor, or judge of the Supreme Judicial Court, shall hold any other office or place, under the authority of this Commonwealth, except such as by this Constitution they are admitted to hold, saving that the judges of the said court may hold the offices of justices of the peace through the State ; nor shall they hold any other place or office, or receive any pension or salary from any other State or government or power whatever. No person shall be capable of holding or exercising at the same time, within this State, more than one of the following offices, vi2. : Judge of probate — sheriff — regis- ter of probate — or register of deeds ; and never more than any two offices, which are to be held by appointment of the Governor, or the Governor and Council, or the Senate, or the House of Kepresentatives, or by the election of the people of the State at large, or of the people of any county, military offices, and the offices of justices of the peace excepted, shall be held by one person. No person holding the office of judge of the Supreme Jndicial Court — secretary — attorney-general — solicitor-general — treasurer or receiver-general — judge of pro- bate — commissary-general — [president, professor, or instructor of Harvard College] ^ — sheriff — clerk of the House of Representatives — register of probate — register of deeds — clerk of the Supreme Judicial Court — clerk of the inferior Court of Common Pleas — or officer of the customs, including in this description naval officers — shall at the same time have a seat in the Senate or House of Representatives ; but their being chosen or appointed to, and accepting the same, shall' operate as a resignation of their seat in the Senate or House of Representatives ; and the place so vacated shall be filled up. And the same rule shall take place in case any judge of the said Supreme Jndicial Court, or judge of probate, shall accept a seat in council; or any councillor shall accept of either of those offices or places. And no person shall ever be admitted to hold a seat in the legislature, or any office of trust or importance under the government of this Commonwealth, who shall, in the due course of law, have been convicted of bribery or corruption in obtaining an election or appointment. 1 For new oath of allegiance, see amendments. Art. VI. s Officers of Harvard College excepted by Amendments, Art. XXVIL APPENDIX TO PART I. 399 ni. In all cases where sums of money are mentioned in this Constitution, the value thereof shall be computed in silver, at six shillings and eightpence per ounce ; and it shall be in the'power of the legislature, from time to time, to increase such qualifica- tions, as to property, of the persons to be elected to offices, as the circumstances of the Commonwealth shall require. IV. All commissions shall be in the name of the Commonwealth of Massachusetts, signed by the Governor and attested by the secretary or his deputy, and have the great seal of the Commonwealth affixed thereto. v. All writs, issuing out of the clerk's office in any of the courts of law, shall be in the name of the Commonwealth of Massachusetts ; they shall be under tlie seal of the court from whence they issue ; they shall bear test of the first justice of the court to which they shall be returnable, who is not a party, and be signed by the clerk of such court. VI. All the laws which have heretofore been adopted, used, and approved in the Province, Colony, or State of Massachusetts Bay, and usually practised on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature ; such parts only excepted as are repugnant to the rights and liberties contained in this Constitution. VII. The privilege and benefit of the writ of habeas corpus shall be enjoyed in this Commonwealth, in the most free, easy, cheap, expeditious, and ample manner ; and shall not be suspended by the legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding twelve months. VIII. The enacting style, in making and passing all Acts, statutes, and laws, shall be — " Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same." IX. To the end there may be no failure of justice, or danger arise to the Com- monwealth from a change of the form of government, all officers, civil and military, holding commissions under the government and people of Massachusetts Bay in New England, and all other officers of the said government and people, at the time this Constitution shall take effect, shall have, hold, use, exercise, and enjoy, all the powers and authority to them granted or committed, until other persons shall be appointed in their stead ; and all courts of law shall proceed in the execution of the business of their respective departments ; and all the executive and legislative officers, bodies, and powers shall continue in full force, in the enjoyment and exercise of all their trusts, employ- ments, and authority ; until the General Court, and the supreme and executive officers under this Constitution, are designated and invested with their respective trusts, powers, and autliotity. X. [In order the more effectually to adhere to the principles of the Constitution, and to correct those violations which by any means may be made therein, as well as to form such alterations as from experience shall be found necessary, the General Court which shall be in the year of our Lord one thousand seven hundred and ninety-five, shaU issue precepts to the selectmen of the several towns, and to the assessors of the unin- corporated plantations, directing them to convene the qualified voters of their respec- tive towns and plantations, for the purpose of collecting their sentiments on the necessity or expediency of revising the Constitution, in order to amendments. And if it shall appear, by the returns made, that two-thirds of the qualified voters throughout the State, who shall assemble and vote in consequence of the said precepts, are in favor of such revision or amendment, the General Court shall issue precepts, or direct them to be issued from the secretary's office, to the several towns to elect dele- gates to meet in convention for the purpose aforesaid. The said delegates to be chosen in the same manner and proportion as their represen- tatives in the second branch of the legislature are by this Constitution to be chosen.]' 1 For existing provision as to amendments, see amendments, Art. IX. [In 1821 nine amendments to this Constitution were proposed by a convention and adopted by the people. Of these, the ninth was as follows : — Art. IX. If, at any time hereafter, any specific and particular amendment or amend- 400 APPENDIX TO PART I. XI. This form of government shall be enrolled on parchment, and deposited in the secretary's office, and be a part of the laws of the land ; and printed copies thereof shall be prefixed to the book containing the laws of this Commonwealtli, in all future editions of the said laws. ARTICLES OF CONFEDERATION. Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations,, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Mm-yland, Virginia, North Carolina, South Carolina, and Georgia. Article I. The style of this Confederacy shall be, "The United States of America." Article II. Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederatio^ expressly delegated to the United States in Congress assembled. Article III. The said States hereby severally enter into a firm league of friend- ship with each other, for their common defence, 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 pretence whatever. Article IV. The better to secure and perpetuate mutual friendship and inter- course among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in tjie several States ; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively ; provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State to any other State of which the owner is an inhabitant ; provided also, that no imposition, duties, or restriction shall be laid by any State on the property of the United States or either of them. If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State shall flee from justice and be found in any of the United States^ he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdic- tion of his offence. Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State. ments to the Constitution be proposed in the General Court, and agreed to by a majority of the senators and two-thirds of "the members of the House of Representatives present and voting thereon, such proposed amendment or amendments shall be entered on the journals of the two Houses, with the yeas and nays taken thereon, and referred to the General Court then next to be chosen, and shall be published ; and if, in the General Court next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of the senators and two-thirds of the members of the House of Representatives present and voting thereon, then it shall be the duty of the General Court to submit such proposed amendment or amendments to the people ; and if they shall be approved and ratified by a majority of the qualified voters, voting thereon, at meetings legally warned and holden for that purpose, they shall become part of the Constitution of this Commonwealth. Under the mode of change thus prescribed, there have been added, down to the end of the year 1893, twenty-five other amendments, making thirty-fonr in all. See ante, 220. — Ed.] APPENDIX TO PART I. 401 Article V. For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year. No State shall be represented in Congress by less than two, nor by more than seven members ; and no person shall be capable of being a delegate for more than three years in any term of six years ; nor shall any person, being a delegate, be capable of holding any office under the United States for which he, or another for his benefit, receives any salary, fees, or emolument of any kind. Each State shall maintain its own delegates in any meeting of the States and while they act as members of the committee of the States. In determining questions in the United States in Congress assembled, each State shall have one vote. Freedom of speech and debate in Con- gress shall not be impeached or questioned in any court or place out of Congress; and the members of Congress shall be protected in their persons from arrests and imprison- ment during the time of their going to and from, and attendance on, Congress, except for treason, felony, or breach of the peace. Article VI. No State, without the consent of the United States, in Congress ■ assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty with any king, prince, or State ; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever from any .king, prince, or foreign State ; nor shall the United States, in Congress assembled, or any of them, grant any title of nobility. No two or more States shall enter into any treaty, confederation, or alliance what- ever between them, without the consent of the United States, in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue. No State shall lay any imposts or duties which may interfere with any stipulations in treaties entered into by the United States, in Congress assembled, with any king, prince, or State, in pursuance of any treaties already proposed by Congress to the courts of France and Spain. No vessels of war shall be kept up in time of peace by any State, except Snch num- ber only as shall be deemed necessary by the United States, in Congress assembled, for the defence of such State or its trade, nor shall any body of forces be kept up by any State in time of peace, except such number only as, in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State ; but every State shall always keep up a well- regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use in public stores a due number of field-pieces and tents, and a proper quantity of arms, ammunition, and camp equipage. No State shall engage in any war without the consent of the United States, in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States, in Congress assembled, can be consulted ; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States, in Congress assembled, and tlien only against the kingdom or state, and the subjects thereof, against which war has been so declared, and under sucli regulations as shall' be established by the United States, in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States, in Congress assembled, shall determine otherwise. Akticle VII. When land forces are raised by any State for the common defence, all officers of or under the rank of colonel shall be appointed by the legislature of each State respectively by whom such forces shall be raised, or in such manner as VOL. I. — 26 402 APPENDIX TO PARt I. such State shall direct, and all vacanfiies shall be filled up by the State which first made the appointment. Article VIII. All charges of war, and all other expenses that shall be incurred for the common defence, or general welfare, and allowed by the United States, in Congress assembled, Shall be defrayed out of a common treasury, which shall be sup- plied by the several States in proportion to the value of all land within each State, granted to, or snrv.eyed for, any person, as such land and the buildings and improve- ments 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 legislatures of the several States, within the time agreed upon by the United States, in Congress assembled. Article IX. The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases men- tioned in the sixth Article ; of sending and receiving ambassadors ; entering into treaties and alliances^ provided that no treaty of commerce ahall be made, whereby the legislative power of the respective States Shall be restrained from imposing such imposts and duties on foreigners as their own people are suhjePted to, or from pro- hibiting the exportation or importation of a,ny species of goods or commodities what- ever ; of establishing rules for deciding, in all cases, what captures on land and water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated ; Of granting letters of marque and reprisal in times of peace ; appointing courts forthe trial of piracies and felonies committed on the high seas ; and establishing courts for receiving and determining finally appeals in all cases of captures ; provided that no member of Congress shall be appointed a judge of any of the said courts. The United States, in Congress assembled, shall also be the last resort on appeal in all disputes and differences now subsisting, or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever ; which authority shall always be exercised in the manner following : Whenever the legislative or executive authority, or lawful agent of any State in controversy with another, shall present a petition to Congress, stating the matter in question, and praying for a hear- ing, notice thereof shall be given by order of Congress, to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint con- sent, commissioners or judges to constitute a court for hearing and determining the matter in question ; but if they cannot agree. Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alter- nately strike out one, the petitioners beginning, until the number shall be reduced to thirteen ; and from that number not less than seven nor more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot ; and the per.'ions whose names shall be so drawn, or any five of them, shall be commission- ers or judges, to hear and finally determine the controversy, so alwaj'S as a major part of the judges who shall hear the cause shall agree in the determination ; and if either party shall neglect to attend at the day appointed, without showing reasons which Congress shall judge sufficient, or being present, shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Con- gress shall strike in behalf of such party absent or refusing ; and the judgment and sentence of the court, to be appointed in the manner before prescribed, shall be final and conclusive ; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall Nevertheless proceed to pronounce sentence or judgment, which shall iii like manner be final and decisive ; the jadgmetit or sentence and other pri^eedings being in either case trans- mitted to Congress, and lodged among the Acts of Congress for the security of the parties concerned ; provided, that every commissioner, before he sits in judgment, shall take an oath, to be administered by one of the judges of the Supreme or Supe- rior Court of the State where the cause shall be tried, " weU and truly to hear aud APPENDIX TO PART I. 403 deterrainfe the matter in question, according to the best of his judgment, without favor, affection, or hope of reward." I'rovided, also, that no State sliall be deprived of terri- tory for the benefit of the United States. All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions, as they may respect such lands and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall, on thfe petition of either party to the Congress of tlie United States, be finally determined, as near as may be, in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between differeiit States. The United States, in Congress assembled, shnll also have the sole and exclusive right and power of regulating the alloy and value of coin struck'by their own author- ity, or by that of the respective States ; fixing the standard of weights and measures throughout the United States ; regulating the trade and managing all affairs with the Indians, not members of any of the States ; provided that the legislative right of any State, within its own limits, be not infringed or violated ; establishing and regulating post-offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through tlie same as may be requisite to defray the expenses of the said office ; appointing all officers of the land forces in the service of the United States, excepting regimental officers ; appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States ; making rules for the government and regulation of the said land and naval forces, and directing their operations. The United States, in Congress assembled, shall have authority to appoint a com- mittee, to sit in the recess bf Congress, to be denominated, " A Committee of the States," and to consist of one delegate from each State, and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under theii- direction ; to appoint one of their number to preside ; provided that no person be allowed to serve in the office of president more than one year in any term of three years ; to ascertain the necessaty sums bf money to be raised for the service of the United States, and to appropriate and apply the same for defray- ing the public expenses ; to borrow money or emit bills on the credit of the United States, transmitting every half year to the respective States an account of the sums of money so borrowed or emitted ; to build and equip a navy ; to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State, which requisition shall be binding ; and thereupon the legislature of each State shall appoint the regimental officers, raise the men, and clothe, arm, and equip them in a soldier-like manner, at the expense of the United States ; and the officers and men so clothed, armed, and equipped, shall march to the place appointed, and within the time agreed on by the United States, in Con- gress assembled ; but if the United States, in Congress assembled, shall, on considera- tion of circumstances, judge proper that any State should not raise men, or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed, and equipped in the same manner as the quota of such State, unless the legislature of such State shall judge that such extra number cannot be safely spared out of the same, in which case they shall raise, officer, clothe, arm, and eqilip as mariy of such extra number as they judge can be safely spared, and the officers and men so clothed, armed, and equipped Shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled. The United States, in Congress assembled, shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the array or 404 APPENDIX TO PART I. navy, unless nine States assent to the same, nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States, in Congress assembled. The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations as in their judgment require secrecy ; and the yeas and nays of the delegates of each State, on any question, shall be entered on the journal when it is desired by any delegate ; and the delegates of a State, or any of them, at his or their request, shall be furnished with a transcript of the said journal except such parts as are above excepted, to lay before the legislatures of the |everal States. Akticle X. The committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States, in Congress assembled, by the consent of nine States, shall, from time to time, think expedient to vest them with ; provided that no power be delegated to the said committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in the Congress of the United States assembled is requisite. AbticI/E XL Canada, acceding to this Confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union ; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States. Article XII. All bills of credit emitted, moneys borrowed, and debts contracted by or under the authority of Congress, before the assembling of the United States, in pursuance of the present Confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States and the public faith are hereby solemnly pledged. Article XIII. Every State shall abide by the determinations of the United States, in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual ; nor shall any alteration at any time here- after be made in any of thein, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State. And whereas it hath pleased the great Governor of the world to incline the hearts of the legislatures we respectively represent in Congress to approve of, and to author- ize us to ratify, the said Articles of Confederation and perpetual Union, know ye, that we, the undersigned delegates, by virtue of the power and authority to us given for that purpose, do, by these presents, in the name and in behalf of our respective con- stituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained. And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States, in Congress assembled, on all questions which by the said Confederation are submitted to them ; and that the articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual. In witness whereof, we have hereunto set oir hands in Congress. Done at Philadelphia, in the State of Pennsylvania, the ninth day of July, in the year of our Lord 1778, and in the third year of the Independence of America.^ 1 Ratified by the last of the States March 1, 1781. — Eo. APPENDIX TO PART I. 405 CONSTITUTION OF THE UNITED STATES, WITH THE AMBNDMENTS.i We the People of the United States, in Order to form a more perfect Union, estab- lish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Pos- terity, do ordain and establish this Constitution for the United States of America. ARTICLE. I. Section. 1. All legislative Powers herein granted shall be vested in a 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 Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, [which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.]'' The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Represen- tatives 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- York six. New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten. North Carolina five, South Carolina five, and Georgia three. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such "Vacancies. 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 Senators 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 fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year ; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any ' Printed, by permission, from an edition by Professors Hart and Channing of Harvard University (published by A. Lovell & Co., New York), of which the editors say : " The text ... is the result of careful comparison by one of the editors with the original manuscripts, Feb. 10, 11, 1893; and it is intended to be absolutely exact in word, spelling, capitalization, and punctuation." Some of the editors' notes have been omitted, some notes have been added, and certain section-marks inserted by the editors have been dropped. An obvious misprint, " Uember," for " Member " (first line p. 409, itifra), has been corrected. Otherwise the text above-named is exactly followed. — Ed. * Superseded by Fourteenth Amendment. 406 APPENDIX TO PART I. State, the Executive thereof, may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. Ko Person shall be a Senator who shall not have attained tp 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 whic+i 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 chnse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. 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 couvicted with- out the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor. Trust or Profit under the United States : but the Party convicted shall nevertheless be liable and subject tp Indictment, Trial, Judgment and Punishment, according to Law. Section. 4. The Times, Places and Manner of holding Elections for Senators and Bepresentatives, 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 iu December, unless they shaU by Law appoint a different Day. Section. 5. Each House shall be the Judge of the Elections, lieturns and Quali- fications 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 Penalr ties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member, Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting .such Parts as may in their Judgment require Secrecy ; and the Yeas and Nays of the Members of either House on any question shall, at the JJesire of one fifth of those Present, be entered on the Journal. 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 Trea.sury 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 elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time ; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. Section. 7. All Bills for raising Revenue shall originate in the House of Represen- tatives ; but the Senate 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 become 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 shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objec- APPENDIX TO PART I. 407 tions, to the other House, by which it shall likewise he 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 I'ersons voting for and against the Bill shall be entered on the Journal of each House respec- tively. If any Bill shall not be returned l)y 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 questiou of Adjournment) sliall be presented to the President of the United States ; and before the same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in tlie 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 gen- eral 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 ; 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 Writings and Dis- coveries ; To constitute Tribunals inferior to the supreme Court ; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations ; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water ; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years ; To provide and maintain a Navy ; To make Rules for the 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 TTnited States, reserving to the States respectively, the Appointment of the Officers, and the Authority of train- ing the Militia according to the discipline prescribed by Congress ; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cessiou of particular States, and the Accept- ance 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 Constitution in the Govern- ment of the United States, or in any Department or Officer 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 408 APPENDIX TO PART I. prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Forts 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 Appropriations made by Law ; and a regular Statement and Account of the Receipts and Expendi- tures of all public 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, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Seciion. 10. No State shall enter into any Treaty, Alliance, or Confederation ; grant Letters of Marque and Reprisal ; coin Money ; emit Bills of Credit ; make any Thing but gold and silver Coin a Tender in Payment of Debts ; pass any Bill of Attainder, ex post facto iaw, 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 executing its inspec- tion 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 Controul 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, n. 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 Representar tive, 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 Per- sons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each ; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a 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 President ; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote ; A quorum for this Purpose shall APPENDIX TO PART I. 409 consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.]' 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 Resident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation, or Inability, both of the Presideut and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased uor 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 Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. 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 supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law : but the Congress may by Law vest the Appoint- ment 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 fiU up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Section. 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper ; he shall receive Ambassadors and other public Ministers ; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. 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. 1 Superseded by Twelfth Amendment. 410 APPENDIX TO PAKT I. AETICLB 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 apd inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Seotios. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ; — rr to all Cases affecting Ambassadors, other public Ministers and Consuls ; — to all Cases of admiralty and maritime Juris- diction ; — to Controversies to which the United States shall be a Party ; -r^ to Con- troversies between two or more States ; — between a State and Citizens of another State ; ' — between Citizens of different States, — between Citizens of the same State claiming Lands under Grants of different States, and betw^eii a State, or the Citizen? thereof, and foreign States, Citizens or Subjects. In aU Cases affecting Ambassadors, other public Ministers and Consuls, and tfaosQ in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before qientioned, the supreme Court shall have appellate Jurisdiction, both as to Law apd Fact, with such Exceptions, and under such Eegulai' tions as the Congress shall make. The Trial pf 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 on 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 except during the Life of the Person attainted, AETICLE. IV. Section. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Becords 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 the executive Author- ity of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Eegulation 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 concerned as well as of the Congress, ^ Limited in its construction by the Eleventh Amendment, (See Bans v. La., ante, p 295. )— Ed. APPENDIX TO PAHT I. 411 The Congress shall have Power to dispose of and make all needful Rules and Regu- lations 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 Uniop a Republican Form of Government, and shall protect each of them against Invasion ; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. ARTICLE. 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 bp valid to all Intents and Purposes, as Part of this Consti- tution, when r£^tifled 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; apd that no 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 Pur. suance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land ; and the Judges in every Stata shall be bound thereby, any Thing in the Constitution 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 tlie several States, shall be bound by Oath or Afiirmation, to support this Con- stitution ; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. ARTICLE. VIL The Ratification of the Conventions of nine States, shall be sufficient for the Estab- ishment of this Constitution between the States so ratifying the Same. Done in Convention by the Unanimous Consent of the [Note of the draughtsman States present the Seventeenth Day of September in the Year as to interlineationB in the of our Lord one thousand seven hundred and Eighty seven text of the manuBcript,] and of the Independance of the United Stutes of America the Attest Twelfth In Witness whereof Ws have hereunto subscribed William Jackson our names. Secretary. q^ WASHINGTON— fresidt and deputy from Virgiivta, [Here follow the names of thirty-eight deputies representing twelve States. — Ed.] ARTICLES in addition to and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.^ 1 This heading appears only in the joint resolution submitting the first ten amend- ments. 412 APPENDIX TO PART L [ARTICLE I.] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ; or abridging the freedom of speech, or of the press ; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. ■ [ARTICLE n.] 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 m.] No Soldier shall, in time of peace he 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. [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 deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [ARTICLE VI.] In all criminal prosecutions the accused 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 accusation ; to be confronted with the wit. nesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. [ARTICLE Vn.] 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 other- wise re-examined in any Court of the United States, than according to the rules of the common law. [ARTICLE Vin.] 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 construed to deny or disparage others retained by the people. APPENDIX TO PART I. 413 [ARTICLE X.] The powers not delegated to the United States hy the Constitntion, nor prohibited by it to the States, are reserved to the States respectively, or to the people.i [ARTICLE XI.] The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.^ [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 inhabitant of the same state with themselves ; they shall name in their ballots the person voted for as Presi- dent, 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 transmit sealed to the seat of the government of the United States, directed to the President of the Senate ; — The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted ; — The person having the greatest number of votes 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 majority, 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 this purpose shall consist of a member or mem- bers 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 when- ever 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 number 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 President shall be eligible to that of Vice-President of the United States.' Article XIII. Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.* 1 The first ten amendments were proposed by Congress September 25, 1789, and declared in force December 15, 1791. — Johnston, Hist. Am. Politics. — Ed. ^ Proposed by Congress March 5, 1794, and declared in force January 8, 1798. — Johnston, ubi supra. — Ed. ' Proposed by Congress December 12, 1803, and declared in force September 25, 1804. — Johnston, ubi supra. — Ed. * Proposed by Congress Eebmary 1, 1865, and declared in force December 18, 1865. — Johnston, ubi supra. — Ed. 414 APPENDIX TO PAKT I. Article XIV. Section 1 : All persons borii or naturalized in the United States, and subject to the jurisdiction thereof) are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property, without due process of law ; nor deny to any person within its jurisdiction thfe equal protection of the laws. Section 2. Representatives shall be apportioned amdiig the sevetal States atcord- ing 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, Kepresentatives in Congress, the Executive and Judicial officers of a State, or the members of the Legis- lature 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 and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Coii- gress, 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 agaiiist the same, or given aid or comfort to the enemies thereof. But Congress may by a vdte 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 suppress- ing 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 aiid void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.* Article XV. Section 1, The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. — Section 2. The Congress shall have power to enfotce this atticle by appropriate legislation.^ — 1 Proposed by Congress June 16, 1866, and declared in force July 28, 1868. — John- ston, uhi supra. — Ed. i Proposed by Congress 'Febniary 26, 1869, and declared in fotcfe March 30, 1870. — Johnston, «6i supro. ^ Ed. APPENDIX TO PART I. 415 PASSAGES FROM ALL THE STATE CONSTITUTIONS (OTHER THAN THAT OF MASSACHUSETTS) PRECEDING THE FED- ERAL CONSTITUTION. CONSTITUTION OF NEW HAMPSHIRE. 1776.1 In Congress at Exeter, January 5, 1776. Voted, That this Congress take up Civil GoveeKmeNT for this colony in manner and form following, viz. We, the members of the Congress of New Hampshire,'- chosen and appointed by the free suffrages of the people of said colony, and authorized and empowered by them to meet together, and use such means and pursue such measures as we should judge best for the public good ; and in particular to establish some form of government, provided that measure should be recommended by the Continental Congress : A.nd a recommen- dation to that purpcse having lieen transmitted to us from the said Congress : Have taken into our serious consideration the unhappy circumstances, into which this colony is involved by means of many grievous and oppressive acts of the British Parliament, depriving us of our natural and constitutional rights and privileges ; to enforce obe- dience to which acts a powerful fleet and army have been sent to this country by the ministry of Great Britain, who have exercised a wanton and cruel abuse of their power, in destroying the lives and properties of the colonists in many places with fire and sword, taking the ships and lading from many of the honest and industrious inhabitants of this colony employed in commerce, agreeable to the laws and customs a long time used here. The sudden and abrupt departure of his Excellency John Wentworth, Esq., our late Governor, and several of the Council, leaving us destitute of legislation, and no executive courts being open to punish criminal offenders ; whereby the lives and prop- erties of the honest people of this colony are liable to the machinations and evil designs of wicked men. Therefore, for the preservation of peace and good order, and for the security of the lives and properties of the inhabitants of this colony, we con- ceive ourselves reduced to the necessity of establishing A Form of Government to continue during the pi'eselit unhappy and unnatural contest with Great Britain ; Pkotesting and Declaring that we neaver sought to throw off our dependance iipbn Great Britain, but felt ourselves happy under her protection, while we could fenjoy our constitutional rights and privileges. And that we shall rejoice if such a reconciliation between us and our parent State can he effected as shall be approved by the CONTlNENTAIi CONGRESS, in whose pruderice and wisdom we confide. Accordingly pursuant to the trust reposed in us. We do Resolve, that this Congfess assume the name, power and authority of a house of Representatives or Assembly for the Colony of New-Hampshire. And that said House then proceed to choose twelve persons, being reputable freeholders and inhabitants within this colony, in the follow- ing manner, viz. five in the county of Rockingham, two in the county of Strafford, two in the county of .llillsborongh, tVvo in the county of Cheshire, and one in the County of Grafton, to be a distinct and separate branch of the Legislature, by the name Of a CoDNCiL for this colony, to continue as such until the third Wednesday in December next ; any seven of whom to he a quorum to do business. That such Council appoint their President, and in his absence that the senior counsellor preside ; that a Secretary be appointed by both branches, who may be a counssellor, or otherwise, as they shall choose. That no act or resolve shall be valid and put into execution unless agreed to, and passed by both branches 6f the legislature. That all public officers for the said colony; and each county, fo* the current year; be 1 See ante, 214. This was the earliest of our constitutions. — Ed. 416 APPENDIX TO PART I. appointed by the Council and Assembly, except the several clerks of the Executive Courts, who shall be appointed by the Justices of the respective Courts. That all bills, resolves, or votes for raising, levying and collecting money originate in the house of Representatives. That at any session of the Council and Assembly neither branch shall adjourn from any longer time than from Saturday till the next Monday without consent of the other. And it is further resolved, That if the present unhappy dispute with Great Britain should continue longer than this present year, and the Continental Congress give no instruction or direction to the contrary, the Council be chosen by the people of each respective county in such manner as the Council and house of Representatives shall order. ^ That general and field officers of the militia, on any vacancy, be appointed by the two houses, and all inferior officers be chosen by the respective companies. That aJl officers of the Army be appointed by the two houses, except they should direct otherwise in case of any emergency. That all civil officers for the colony and for each county be appointed, and the time of their continnance in office be determined by the two houses, except clerks of Courts, and county treasurers, and recorders of deeds. That a treasurer, and a recorder of deeds for each county be annually chosen by the people of each county respectively ; the votes for such officers to be returned to the respective courts of General Sessions of the Peace in the county, there to be ascep tained as the Council and Assembly shall hereafter direct. That precepts in the name of the Council and Assembly, signed by the President of the Council, and Speaker of the house of Representatives, shall issue annually at or before the first day of November, for the choice of a Council and house of Representa- tives to be returned by the third Wednesday in December then next ensuing, in such manner as the Council and Assembly shall hereafter prescribe. — 2 Poore's Constitu- tions, 1279. CONSTITUTION OF NEW HAMPSHIRE. 1784.1 Part I. — The Bill op Rights. Article I. All men are born equally free and independent ; therefore, all govern- ment of right originates from the people, is founded in consent, and instituted for the general good. VIII. All power residing originally in, and being derived from the people, all the magistrates and officers of government, are their substitutes and agents, and at all times accountable to them. XXIX. The power of suspending the laws, or the execution of them, ought never to be exercised but by the legislature, or by authority derived therefrom, to be exercised in such particular cases only as the legislature shall expressly provide for. XXXV. It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit. It is therefore not only the best policy, but for the security of the rights of the people, that the judges of the supreme (or superior) judicial court should hold their offices so long as they behave well ; and that they should have honorable salaries, ascertained and established by standing laws. XXXVII. In the government of this state, the three essential powers thereof, to wit, the legislative, executive and judicial, ought to be kept as separate from and in- dependent of each other, as the nature of a free government will admit, or as is con- sistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of nnion and amity. 1 See ante, 214, 215. — Ed. APPENDIX TO PART I. 417 Part II. — The Fokm of Government. THE people inhabiting the territory formerly called the Province of New-Hamp- shire, do hereby solemnly and mutually agree with each other, to form themselves into a free, sovereign, and independent Body-politic, or State, by the name of the STATE OF NEW HAMPSHIRE. The General Court. THE supreme legislative power within this State shall be vested in the senate and house of representatives, each of which shall have a negative on the other The senate and house shall assemble every year on the first Wednesday of June, and at such other times as they may judge necessary ; and shall dissolve, and be dis- solved, seven days next preceding the said first Wednesday of June; and shall be stiled THE GENERAL COURT OF NEW-HAMPSHIRE. The general court shall forever have full power and authority to erect and consti- tute judicatories and courts of record, or other courts, to be holden in the name of the State, for the hearing, trying, and determining all manner of crimes, offences, pleas, processes, plaints, actions, causes, matters and things whatsoever, arising, or hap- pening within this state, or between or concerning persons inhabiting or residing, or brought within the same, whether the same be criminal or civil, or whether the crimes be capital or not capital, and whether the said pleas be real, personal, or mixed ; and for the awarding and issuing execution thereon. To which courts and judicatories are hereby given and granted full power and authority, from time to time to administer oaths or affirmations, for the better discovery of truth in any matter in controversy, or depending before them. And farther, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain and establish, all manner of whole- some and reasonable orders, laws, statutes, ordinances, directions and instructions, either with penalties or without ; so as the same be not repugnant, or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof, and of the subjects of the same, for the necessary support and defence of the government thereof. ... Senate. THERE shall be annually elected by the freeholders and other inhabitants of this state, qualified as in this constitution is provided, twelve persons to be senators for the year ensuing their election. . . . The senate shall be a court with full power and authority to hear and determine all impeachments made by the house of representatives, against any officer or officers of the state, for misconduct or mal-administration in their offices. But previous to the trial of any such impeachment, the members of the senate shall respectively be sworn, truly and impartially to try and determine the charge in question according to evidence. Their judgment, however, shall not extend farther than removal from office, disqualification to hold or enjoy any place of honor, trust or profit under this state ; but the party so convicted, shall nevertheless be liable to indictment, trial, judgment, and punishment, according to laws of the land. House or Representatives. THERE shall be in the legislature of this state a representation of the people annually elected and founded upon principles of equality. . . . Executive Power. — President. THERE shall be a supreme executive magistrate, who shall be stiled. The PRES- IDENT or the STATE of NEW-HAMPSHIRE ; and whose title shall be HIS EXCELLENCY. . . . VOL. I. —27 418 APPENDIX TO PART I. All judicial officers . . shall be nominated and appointed by the president and council ; and every such nomination shall be made at least seven days prior to such appointment, and no appointment shall take place, unless three of the council agree thereto. . . . Permanent and honorable salaries shall be established by law for the justices of. the superior court. . . . JuDiciABT Power. , THE tenure, that all commission officers shall have by law in their offices, shall be expressed in their respective commissions. All judicial officers, duly appointed, com- missioned and sworn, shall hold their offices during good behaviour, excepting those concerning whom there is a different provision tnade in this constitution : Provided nevertheless, the president, with consent of council, may remove them upon the address cf both houses of the legislature. Each branch of the legislature, as well as the president and conucil, shaU have authority to require the opinions of the justices of the superior court upon important questions of law, and upon solemn occasions. In order that the people may not snffer from the long continuance in place of any justice of the peace, who shall fail in discharging the important duties of his office with ability and fidelity, all commissions of justices of the peace shall become void, at the expiration of five years from their respective dates ; and upon the expiration of any commission, the same may, if necessary, be renewed, or another person appointed, as shall most conduce to the well-being of the State. . . . To preserve an effectual adherence to the principles of the constitution, and to correct any violations thereof, as well as to make such alterations therein, as from experience may be found necessary, the general court shall at the expiration of seven years from the time this constitution shall take effect, issue precepts, or direct them to be issued from the secretary's office, to the several towns and incorporated places, to elect delegates to meet in convention for the purposes aforesaid : the said delegates to be chosen in the same manner, and proportioned as the representatives to the gen- eral assembly ; provided that no alteration shall be made in this constitution before the same shall be laid before the towns and unincorporated places, and approved by two-thirds of the qualified voters present, and voting upon the question. — 2 Poore's Constitutions, 1280. CONSTITUTION OF SOUTH CAROLINA. 1776.1 . . . And whereas the judges of courts of law here have refused to exercise their respective functions, so that it is become indispensably necessary that during the present situation of American affairs, and until an accommodation of the nnhappy differences between Great Britain and America can be obtained, (an event which, though traduced and treated as rebels, we still earnestly desire,) some mode should be established by common consent, and for the good of the people, the origin and end of all governments, for regulating the internal polity of this colony. The congress being vested with powei'S competent for the purpose, and having fuUy deliberated touching the premises, do therefore resolve : I. That this congress being. a full and free representation of the people of this colony, shall henceforth be deemed and called the general assembly of South Carolina, and as such shall continue until the twenty-first day of October next, and no longer. II. That the general assembly shall, out of their own body, elect by ballot a legis- lative council, to consist of thirteen members, (seven of whom shall be a quorum,) and to continue for the same time as the general assembly. III. That the general assembly and the said legislative council shall jointly choose 1 This constitution was framed by the " provincial congress " of South Carolina, and adopted March 26, 1776. It was not submitted to the people for ratification. ; A.PPENDIX TO PART I. 419 by ballot from among themselves, or from the people at large, a presiJent and com- mander-in-chief and a vice-president of the colony. VII. That the legislative authority be vested in the president and commander-in- chief, the general assembly and legislative council. All money-bills for the support of government shall originate in the general assembly, and shall not be altered or amended by the legislative council, but may be rejected by them. All other bills and ordinances may take rise in the general assembly or legislative council, and may be altered, amended, or rejected by either. Bills having passed the general assembly and legislative council may be assented to or rejected by the president and commander- in-chief. Having received his assent, they shall have all the force and validity of an act of general assembly of this colony. And the general assembly and legislative council, respectively, shall enjoy all other privileges which have at any time been claimed or exercised by the commons house of assembly, but the legislative council shall have no power of expelling their own members. XVI. That the vice-president of the colony and the privy council, or the vice-pres- ident and a majority of the privy council for the time being, shall exercise the powers of a court of chancery, and there shall be an ordinary who shall exercise the powers heretofore exercised by that officer in this colony. XIX. That justices of the peace shall be nominated by the general assembly and commissioned by the president and commander-in-chief, during pleasure. They shall not be entitled to fees except on prosecutions for felony, and not acting in the magis- tracy, they shall not be entitled to the privileges allowed to them by law. XX. That all other judicial officers shall be chosen by ballot, jointly by the general assembly and legislative council, and except the judges of the court of chancery, com- missioned by the president and commander-in-chief, during good behavior, but shall be removed on address of the general assembly and legislative council. XXIX. That the resolutions of this or any former congress of this colony, and all laws now of force here, (and not hereby altered,) shall so continue until altered or re- pealed by the legi.'ilature of this colony, unless where they are temporary, in which case they shall expire at the times respectively limited for their duration. XXX. That the executive authority be vested in the president and commander-in- chief, limited and restrained as aforesaid. XXXIII. That all persons who shall be chosen and appointed to any office or to any place of trust, before entering upon the execution of office, shall take the follow- ing oath : " I, A. B., do swear that I will, to the utmost of my power, support, main- tain, and defend the Constitution of South Carolina, as established by Congress on the twenty-sixth day of March, one thousand seven hundred and seventy-six, until an accommodation of the differences between Great Britain and America shall take place, or I shall be released from this oath by the legislative authority of the said colony : So help me God." And all such persons shall also take an oath of office. XXXIV. That the following yearly salaries be allowed to the public officers undermentioned : The president and commander-in-chief, nine thousand pounds ; the chief justice and the assistant judges, the salaries, respectively, as by act of assembly" established. . . . — 2 Poore's Constitutions, 1615. CONSTITUTION OF SOUTH CAROLINA. 1778.1 An act for establishing the constitution of the State of South Carolina. II. That the legislative authority be vested in a general assembly, to consist of two distinct bodies, a senate and house of representatives, but that the legislature of this 1 This constitution was framed by the general assembly of South Carolina, by which it was passed as an "act" March 19, 1778, although it did not go into effect until November, 1778. It was soon afterwards declared by the supreme court of South Carolina that both the constitution of 1776 and the constitution of 1778 were simply acts of the general assembly, which that body could repeal or amend at pleasure. [This constitution was in force till 1790. — Ed.] 420 APPENDIX TO PART I. State, as established by the constitution or form of government passed the twenty, sixth of March, one thousand seven hundred and seventy-six, shall continue and be in full force until the twenty-ninth day of November ensuing. III. That as soon as may be after the first meeting of the senate and house of representatives, and at every first meeting of the senate and house of representa- tives thereafter, to be elected by virtue of this constitution, they shall jointly iu the house of representatives choose by ballot from among themselves or from the people at large a governor and commander-in-chief, a lieutenant-governor, both to continue for two years, and a privy council, all of the Protestant religion, and till such choice shall be made the former president or governor and commauder-in-chief, and vice-president or lieutenant-governor, as the case may be, and privy council, shall continue to act as such. » [Art. IX. Provides for a privy council.] XI. That the executive authority be vested in the governor and commander-in- chief, iu manner herein mentioned. XVI. That all money bills for the support of government shall originate in the house of representatives, and shall not be altered or amended by the senate, but may be rejected by them, and that no money be drawn out of the public treasury but by the legislative authority of the State. All other bills and ordinances may take rise in the senate or house of representatives, and be altered, amended, or rejected by either. Acts and ordinances having pa.'ssed the general assembly shall have the great seal affixed to them by a joint committee of both houses, who shall wait upon the gov- ernor to receive and return the seal, and shall then be signed by the president of the senate and speaker of the house of representatives, in the senate-house, and shall thenceforth have all the force and validity of a law, and be lodged in the secretary's office. And the senate and house of representatives, respectively, shall enjoy all other privileges which have at any time been claimed or exercised by the commons house of assembly. XXIII. That the form of impeaching all officers of the State for mal and corrupt conduct in their respective offices, not amenable to any other jurisdiction, be vested in the house of representatives. But that it shall always be necessary that two- third parts of the members present do consent to and agree in such impeachment. That the senators and such of the judges of this State as are not members of the house of representatives, be a court for the trial of impeachments, under such regula- tions as the legislature shall establish, and that previous to the trial of every impeach- ment, the members of the said court shall respectively be sworn truly and impartially to try and determine the charge in question according to evidence, and no judgment of the said court, except judgment of acquittal, shall be valid, unless it shall be assented to by two-third parts of the members then present, and on every trial, as well on im- peachments as others, the party accused shall be allowed counsel. XXIV. That the lieutenant-governor of the State and a majority of the privy council for the time being shall, until otherwise altered by the legislature, exercise the powers of a court of chancery, and there shall be ordinaries appointed in the several districts of this State, to be chosen by the senate and house of represen- tatives jointly by ballot, in the house of representatives, who shall, within their respective districts, exercise the powers heretofore exercised by the ordinary, and until such appointment is made the present ordinary in Charleston shall continue to exercise that office as heretofore. XXV. That the jurisdiction of the court of admiralty be confined to maritime causes. XXVI. That justices of the peace shall be nominated by the senate and house of ■representatives jointly, and commissioned by the governor and commander-in-chief during pleasure. They shall be entitled to receive the fees heretofore established by law ; and not acting in the magistracy, they shall not be entitled to the privileges allowed them by law. XXVII. That all other judicial officers shall be chosen by ballot, jointly by the senate and house of representatives, and, except the judges of the court of chan- APPENDIX TO PART L 421 eery, commissioned by the governor and commander-in-chief during good behavior, but shall be removed on address of the senate and house of representatives. XLIV. That no part of this constitution shall be altered without notice being pre- viously given of ninety days, nor shall any part of the same be changed without the consent of a majority of the members of the senate and house of representatives. — 2 Poore's Constitutions, 1620. VIRGINIA BILL OF EIGHTS. 1776.1 A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free convention ; which rights do pertain to them and their posterity, as the basis and foundation of government. Sec. 2. That all power is vested in, and consequently derived from, the people ; that magistrates are their trustees and servants, and at all times ameuable to them. Sec. 5. That the legislative and executive powers of the State should be separate and distinct from the judiciary ; and that the members of the two first may be re- strained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct. Sec. 7. That all power of suspending laws, or the execution of laws, by any author- ity, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised. — 2 Poore's Constitutions, 1908. CONSTITUTION OF VIRGINIA. 1776.2 The legislative, executive, and judiciary departments, shall be separate and distinct, so that neither exercise the powers properly belonging to the other : nor shall any person exercise the powers of more than one of them, at the same time ; except that the .Justices of the County Courts shall be eligible to either House of Assembly. The two Houses of Assembly shall, by joint ballot, appoint Judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty, Sec- retary, and the Attorney-General, to be commissioned by the Governor, and continue in office during good behaviour. In case of death, incapacity, or resignation, the Gov- ernor, with the advice of the Privy Council, shall appoint persons to succeed in office, to be approved or displaced by both Houses. These officers shall have fixed and ade- quate salaries, and, together with all others, holding lucrative offices, and all ministers of the gospel, of every denomination, be incapable of being elected members of either House of Assembly or the Privy Council. The Governor, when he is out of office, and others, offending against the State, either by mal-administration, corruption, or other means, by which the safety of the State may be endangered, shall be impeachable by the House of Delegates. Such impeachment to be prosecuted by the Attorney-General, or such other person or per- sons, as the House may appoint in the General Court, according to the laws of the laud. If found guilty, he or they shall be either forever disabled to hold any office under government, or be removed from such office pro tempore, or subjected to such pains or penalties as the laws shall direct. If all or any of the Judges of the General Court should on good grounds (to be 1 This declaration of rights was framed by a convention, composed of forty-five members of the colonial house of burgesses, which met at Williamsburgh May 6, 1776, and adopted this declaration June 12, 1776. 2 This constitution was framed by the convention which issued the preceding decla- ration of rights, and was adopted June 29, 1776. It was not submitted to the people for ratification. [This constitution continued till 1830. — Eu.] 422 APPENDIX TO PART I. judged of by the House of Delegates) be accused of any of the crimes or offences above mentioned, such House of Delegates may, in like manner, impeach the Jndge or Judges so accused, to be prosecuted iu the Court of Appeals ; and he or they, if found guilty, shall be puuished iu the same manner as is prescribed in the preceding clause. — 2 Poore's Constitutions, 1910. CONSTITUTION OF NEW JERSEY. 1776.1 I. That the government of this Province shall be vested iu a Governor, Legisla- tive Couucil, and General Assembly. VII. That the Council and Assembly jointly, at their first meeting after each an- nual election, shall, by a majority of votes, elecfsome fit person within the Colony, to be Governor for one year, who shall be constant President of the Council, and have a casting vote in their proceedings ; and that the Couucil themselves shall choose a Vice-President who shall act a.s such in the absence of the Governor. VIII. That the Governor, or, in his absence, the Vice-President of the Council, shall have the supreme executive power, be Chancellor of the Colony, and act as cap- tain-general and commander iu chief of all the militia, and other military force in this Colony ; and that any three or more of the Council shall, at all times, be a privy-coun- cil, to consult them ; and that the Governor be ordinary or surrogate-general. IX. That the Governor and Council, (seven whereof shall be a quorum) be the Court of Appeals, in the last resort, in all clauses of law, as heretofore ; and that they possess the power of granting pardons to criminals, after condemnation, in all cases of treason, felony, or other offences. XII. That the Judges of the Supreme Court shall continue in office for seven years : the Judges of the Inferior Court of Common Pleas in the several counties. Justices of the Peace, Clerks of the Supreme Court, Clerks of the Inferior Court of Common Pleas and Quarter Sessions, the Attorney-General, and Provincial Sec- retary, shall continue in ofBce for five years : and the Provincial Treasurer shall continue in office for one year ; and that they shall be severally appointed by the Couucil and Assembly, in manner aforesaid, and commissioned by the Governor, or, iu his absence, the Vice-President of the Council. Provided always, that the said officers, severally, shall be capable of being re-appointed, at the eud of the terms severally before limited ; and that any of the said officers shall be liable to be dismissed, when adjudged guilty of misbehaviour, by the Council, on an impeach- ment of the Assembly. XX. That the legislative department of this government may, as much as possible, be preserved from all suspicion of corruption, none of the Judges of the Supreme or other Courts Sheriffs, or any other person or persons possessed of any post of profit under the government, other than Justices of the Peace, shall be entitled to a seat in the Assembly; but that, on his being elected, and taking his seat, his office or post shall he considered as vacant. . XXI. That all the laws of this Province, contained in the edition lately published by Mr. AUinson, shall be and remain in full force, until altered by the Legislature of this Colony (such only excepted, as are incompatible with this Charter) and shall be, according as heretofore, regarded in all respects, by all civil officers, and others, the good people of this Province. 1 This constitution was framed by a convention which assembled in accordance with the recommendation of the Continental Congress that the people of the colonies should form independent State governments, and which was in session, with closed doors, successively, at Burlington, Trenton, and New Brunswick, from May 26, 1776, until July 2, 1776, with intermissions. It was not submitted to the people, but its publication was ordered by the convention, July 3, 1776. [This constitution continued till 1844. — Ed.] The legislature of New Jersey amended this constitution September 20, 1777, by substituting the words " State " and " States " for " colony " and " colonies." APPENDIX TO PART I. 423 XXII. That the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall be altered by a future law of the Legislature ; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter ; and that the inesti- mable right of trial by jury shall remain confirmed as a part of the law of this Colony, without repeal, forever. Provided always, and it is the trne intent and meaning of this Congress, that if a reconciliation between Great-Britain and these Colonies should take place, and the latter be taken again under tlie protection and government of tlio crown of Britain, this Charter shall be null and void — otherwise to remain firm and inviolable. — 2 Poore's Constitutions, 1311. CONSTITUTION OF DELAWARE. 1776.1 The constitution, or system of government, agreed to and resolved upon hy the representa- tives in full convention of the Delaware State, formerly styled " The government of the counties of New Castle, Kent, and Sussex, upon Delaware," the said representa- tives being chosen by the freemen of the said State for that express purpose. Art. 12. The president and general assembly shall by joint ballot appoint three justices of the supreme court for the State, one of whom shall be chief justice, and a judge of admiralty, and also four justices of the courts of common pleas and orphans' courts for each county, one of whom in each court shall be styled " chief justice," (and in case of division on the ballot the president shall have an additional casting voice,) to be commissioned by the president under the great seal, who shall continue in ofiice during good behavior ; and during the time the justice.s of the said supreme court and courts of common pleas remain in office, they shall hold none other except in the militia. Any one of the justices of either of said courts shall have power, in case of the uoncoming of his brethren, to open and adjourn the court. An adequate fixed but moderate salary shall be settled on them during their continuance in office. The president and privy council shall appoint the secretary, the attorney-general, regis- ters for the probate of wills and granting letters of administration, registers in chancery, clerks of the courts of common pleas and orphans' courts, and clerks of the peace, who shall be. commissioned as aforesaid, and remain in office during five years, if they behave themselves well; during which time the said registers in chan- cery and clerks shall not be justices of either of the said courts of which they are officers, but they shall have authority to sign all writs by them issued, and take recog- nizances of bail. The justices of the peace shall be nominated by the house of as- sembly ; that is to say, they shall name twenty-four persons for each county, of whom the president, with the approbation of the privy council, shall appoint twelve, who shall be commissioned as aforesaid, and continue in office during seven years, if they behave themselves well ; and in case of vacancies, or if the legislature shall think proper to increase the number, they shall be nominated and appointed in like manner. The members of the legislative and privy councils shall be justices of the peace for the whole State, during their continuance in trust ; and the justices of the courts of common pleas shall be conservators of the peace in their respective counties. Art. 17. There shall be an appeal from the supreme court of Delaware, in mat- ters of law and equity, to a court of seven persons, to consist of the pre-sident for the time being, who shall preside therein, and six others, to be appointed, three by the legislative council, and three by the house of assembly, who shall continue in office during good behavior, and be commissioned by the president, under the great seal ; which court shall be styled the " court of appeals," and have all the authority and powers heretofore given by law in the last resort to the King in council, under the old ' This constitution was framed by a convention which assembled at New Castle, August 27, 1776, in accordance with the recommendation of the Continental Congress that the people of the Colonies should form independent State governments. It was proclaimed September 21, 1776. fPhis constitution continued till 1792. — Ed.] 424 APPENDIX TO PART I. government. The secretary shall be the clerk of this court ; and vacancies therein occasioned by death or incapacity, shall be supplied by new elections, in manner aforesaid. Akt. 18. The justices of the supreme court and courts of common pleas, the members of the privy council, the secretary, the trustees of the loan office, and clerks of the court of common pleas, during their continuance in office, and all persons con- cerned in any army or navy contracts, shall be ineligible to either house of assembly ; and any member of either house accepting of any other of the offices hereinbefore men- tioned (excepting the office of a justice of the peace) shall have his seat thereby vacated, and a new election shall be ordered. Art. 22. Every person who shall be chosen a member of either house, or appointed to any office or place of tru.st, before taking his seaj, or entering upon the execution of his office, shall take the following oath, or affirmation, if conscientiously scrupulous of taking an oath, to wit : " I, A B, will bear true allegiance to the Delaware State, submit to its constitution and laws, and do no act wittingly whereby the freedom thereof may be prejudiced." And also make and subscribe the following declaration, to wit : " I, A B, do profess faith in God the Father, and in Jesus Christ His only Son, and iu the Holy Ghost, one God, blessed for evermore ; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration." And all officers shall also take an oath of office. Aet. 25. The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature ; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, etc., agreed to by this convention. Akt. 30. No article of the declaration of rights and fundamental rules of this State, agreed to by this convention, nor the first, second, fifth, (except that part thereof that relates to the right of suffrage,) twenty-sixth, and twenty-ninth articles of this constitution, ought ever to be violated on any pretence whatever. No other part of this constitution shall be altered, changed, or diminished without the consent of five parts iu seven of the assembly, and seven members of the legislative council. — 1 Poore's Constitutions, 273. CONSTITUTION OF PENNSYLVANIA. 1776.1 A Declaration of the Rights of the Inhabitants of the State of Pennsylvania. IV. That all power being originally inherent in, and consequently derived from, the people ; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them. VI. That those who are employed in the legislative and executive business of the State, may be restrained from oppression, the people have a right, at such periods as they may think proper, to reduce their public officers to a private station, and supply the vacancies by certain and regular elections. XIV. That a frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the blessings of liberty, and keep a government free : The people ought therefore to pay particular attention to these points in the choice of officers and repre- sentatives, and have a right to exact a due and constant regard to them, from their legislators and magistrates, in the making and executing such laws as are necessary for the good government of the state. 1 This constitution was framed by a convention (called in accordance with the ex- pressed wish of the Continental Congress) which assembled at Philadelphia July 15, 1776, and completed its labors September 28, 1776. It was not submitted to the people for ratification. [This constitution continued till 1790. — Ed.] APPENDIX TO PART I. 425 Plan or Frame of Government. Sect. 2. The sapreme legislative power shall be vested in a house of representa- tives of the freemen of the commonwealth or state of Pennsylvania. Sect. 3. The supreme executive power shall be vested in a president and council. Sect. 4. Courts of justice shall be established in the city of Philadelphia, and in every county of this state. Sect. 15. To the end that laws before they are enacted may be more maturely con- sidered, and the inconvenience of hasty determinations as much as possible prevented, all bills of public nature shall be printed for the consideration of the people, before they are read in general assembly the last time for debate and amendment ; and, ex- cept on occasions of sudden necessity, shall not be passed into laws until the next ses- sion of assembly ; and for the more perfect satisfaction of the public, the reasons and motives for making such laws shall be fully and clearly expressed in the preambles.' Sect. 20. The president, and in his absence the vice-president, with the council, five of whom shall be a quorum, shall have power to appoint and commissionate judges, naval officers, judge of the admiralty, attorney general, and all other officers, civil and military, except such as are chosen by the general assembly or the people. . . . They shall sit as judges, to hear and determine on impeachments, talking to their assistance for advice only, the justices of the supreme court. And shall have power to grant pardons, and remit fines, in all cases whatsoever, except in cases of impeach- ment ; and iu cases of treason and murder, shall have power to grant reprieves, but not to pardon, until the end of the next sessions of assembly ; but there shall be no remission or mitigation of punishments on impeachments, except by act of the legislar ture ; tl;py are also to take care that the laws be faithfully executed ; they are to expedite the execution of such measures as may be resolved upon by the general assembly; and they may draw upon the treasury for such sums as shall be appro- priated by the house. . . . Sect. 22. Every officer of state, whether judicial or executive, shall be liable to be impaached by the general assembly, either when in office, or after his resignation or removal for mal-adrainistration : All impeachments shall be before the president or viqe-president and council, who shall hear and determine the same. Sect. 23. The judges of the supreme court of judicature shall have fixed salaries, be commissioned for seven years only, though capable of re-appointment at the end of that term, but rpmovable for misbehaviour at any time by the general assembly ; they shall not be allowed to sit as members in the continental congress, executive coun- cil, or general assembly, nor to hold any other office civil or military, nor to take or receive fees or perquisites of any kind.2 Sect. 24. The supreme court, and the several courts of common pleas of this commonwealth, shall, besides the powers usually exercised by such courts, have the powers of a court of chancery, so far as relates to the perpetuating testimony, obtain- ing evidence from places not within this state, and the care of the persons and estates of those who are nan compotes mentis, and such other powers as may be found neces- sary by future general assemblies, not inconsistent with this constitution. 1 To the end that laws, before they are enacted, may be more maturely considered, and the iuconveuieney of hasty determination as much as possible prevented, all bills of public nature, shall be first laid before the Governor and Council, for their perusal and proposals of amendment, and shall be printed for the consideration of the people, before they are read in General Assembly, for the last time of debate and amendment ; except temporary acts, which, after being laid before the Governor and Council, may (in case of sudden necessity) be passed into laws ; and no other shall be passed into laws, until the next session of assembly. And for the more perfect satisfaction of the public, the reasons and motives for making such laws, shall be fully and clearly expressed and set forth in their preambles. — Constitution of Vermont, 1777 s. XIV. — Eb. 2 Omitted in Vermont Constitution. — En. 426 APPENDIX TO PAET I. Sect. 40. Every officer, whether judicial, executive or military, in authority nnder this commonwealth, shall take the following oath or affirmation of allegiance, and general oath of office before he enters on the execution of his office. THE OATH OK AFFIBMATION OF ALLEGIANCE : / do swear (or affirm) that I will be true and faithful to the commonwealth of Pennsjjlvania : And that I will not directlij or indirectly do any act or thing prejudicial or injurious to the constitution or government thereof, as established by the convention. THE OATH OR AFFIRMATION OF OFFICE : / do swear {or affirm) that I will faith^^lly execute the office of for the of and will do equal right and justice to all men, to the best of my judgment and abilities, according to law. Sect. 46. The declaration of rights is hereby declared to be a part of the con- stitution of this commonwealth, and ought never to be violated on any pretence whatever. Sect. 47. In order that the freedom of the commonwealth may be preserved invio- late forever, there shall be chosen by ballot by the freemen in each city and county respectively, on the second Tuesday in October, in the year one thousand seven hun- dred and eighty-three, and on the second Tuesday in October, in every seventh year thereafter, two persons in each city and county of this state, to be called the Council OF Censors ; who shall meet together on the second Monday of November next ensuing their election ; the majority of whom shall be a quorum in every case, except as to calling a convention, in which two-thirds of the whole number elected shall agree : And whose duty it shall be to enquire whether the constitution has been pre- served inviolate in every part ; and whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are intitled to by the con- stitution : They are also to enquire whether the public taxes liave been justly laid and collected in all parts of this" commonwealth, in what manner the public monies have been disposed of, and whether the laws have been duly executed. For these pur- poses they shall have power to send for persons, papers, and records ; they shall have authority to pass public censures, to order impeachments, and to recommend to the legislature the repealing such laws as appear to them to have been Miacted contrary to the principles of the constitution. These powers they shall continue to have, for and during the space of one year from the day of their election and no longer : The said council of censors shall also have power to call a convention, to meet within two years after their sitting, if there appear to them an absolute necessity of amending any article of the constitution which may be defective, explaining such as may be thought not clearly expressed, and of adding such as are necessary for the preser\'a- tion of the rights and happiness of the people : But the articles to be amended, and the amendments proposed, and such articles as are proposed to be added or abolished, shall he promulgated at least six months before the day appointed for the election of such convention, for the previous consideration of the people, that they may have an oppor- tunity of instructing their delegates on the subject. Passed in Convention the 28th day of September, 1776, and signed by their order. BENJ. FRANKLIN, Prest.^ 2 Poore's Constitutions, 1540. 1 Vermont, through a convention, adopted a constitution which went into effect in July, 1777. It was amended and recast by the Council of Censors in 1786. This instrument of 1777 was almost exactly the same as the first constitution of Pennsyl- vania. It had the same provisions given above, excepting as mentioned in notes. In the Vermont Constitution of 1786, Chap. II. Art. IX., it was provided that "The representatives so chosen . . . shall also, in conjunction with the Council, annually, (or oftener if need be) elect Judges of the Supreme and several County and Probate APPENDIX TO PAET L 427 CONSTITUTION OF MARYLAND. 1776.1 A Declaration of Rights, and the Constitution and Form of Government, agreed to by the Delegates of Maryland, in free and full Convention assembled. A Dbclaeation of Rights, &c. . . . We, the Delegates of Maryland, in free and full Conyention assembled, taking into our most serious consideration the best means of establishing a good Constitution in this State, for the sure foundatiou and more permanent security thereof, declare, I. That all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole. IV. That all persons invested with the legislative or executive powers of gov- ernment are the trustees of the public, and, as such, accountable for their conduct; wherefore, whenever the ends of government are perverted, and public liberty mani- festly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old or establish a new government. The doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish, and destruc- tive of the good and happiness of mankind. V. That the right in the people to participate in the Legislature, is the best security of liberty, and the foundation of all free government ; for this purpose, elections ought to be free and frequent, and every man, having property in, a common interest with> and an attachment to the community, ought to have a right of suffrage. VI. That the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other. VII. That no power of suspending laws, or the execution of laws, unless by or derived from the Legislature, ought to be exercised or allowed. XXX. That the independency and uprightness of Judges are essential to the im- partial administration of justice, and a great security to the rights and liberties of the people ; wherefore the Chancellor and Judges ought to hold commissions during good behaviour ; and the said Chancellor and Judges shall be removed for misbehaviour, on conviction in a court of law, and may be removed by the Governor, upon the address of the General Assembly ; Provided, That two-thirds of all the members of each House concur in such address. That salaries, liberal, but not profuse, ought to be secured to the Chancellor and the Judges, during the continuance of their commissions, in such manner, and at such times, as the Legislature shall hereafter direct, upon consideration of the circumstances of this State. No Chancellor or Judge ought to hold any other . office, civil or military, or receive fees or perquisites of any kind. XXXI. That a long continuance, in the first executive departments of power or trust, is dangerous to liberty ; a rotation, therefore, in those departments, is one of the best securities of permanent freedom. XXXV. That no other test or qualification ought to be required, on admission to any office of trust or profit, than such oath of support and fidelity to this State, and such oath of office, as shall be directed by this Convention, or the Legislature of this State, and a declaratiou of a belief in the Christian religion. XLI. That the subsisting resolves of this and the several Conventions held for this Colony, ought to be in force as laws, unless altered by this Convention, or the Legisla- ture of this State. Courts, Sheriffs and Justices of the Peace : and also with the Council, may elect Major-Generals and Brigadier-Generals, from time to time, as often as there shall be occasion ; and they shall have all other powers necessary for the Legislature of a free and sovereign State : but they shall have no power to add to, alter, abolish, or infringe, any part of this Constitution." — 2 Poore's Constitutions, 1 870. — Ed. 1 This constitution was framed by a convention which met at Annapolis August 14, 1776, and completed its labors November 11, 1776. It was not submitted to the people. [This constitution continued till 1851. — Ed ] 428 APPENDIX TO PART I, XLII. That this Declaration of Eights, or the Form of Government, to be estab- lished by this Convention, or any part or either of them, ought not to be altered, changed or abolished, by the Legislature of this State, but in such manner as this Convention shall prescribe and direct. The Constitution, oe Form of Government, &c. I. THAT the Legislature consist of two distinct branches, a Senate and House of Delegates, which shall be styled, The General Assembly of Maryland. XXV. That a person of wisdom, experience, and virtue, shall be chosen Governor, on the second Monday of November, seventeen hundred and seventy-seven, and on the second Monday in every year forever thereafter, by the joint ballot of both Houses. ... XL. That the Chancellor, all Judges, the Attorney-General, Clerks of the General Court, the Clerks of the County Courts, the Registers of the Land Office, and the Registers of Wills, shall hold their commissions during good behaviour, removable only for misbehaviour, on conviction in a Court of law. XLVIII. That the Governor, for the time being, with the advice and consent of the Council, may appoint the Chancellor, and all Judges and Justices. . . . LV. That every person, appointed to any office of profit or trust, shall, before he enters on the execution thereof, take the following oath ; to wit : " I, A. B., do swear, that I do not hold myself bound in allegiance to the King of Great Britain, and that I will be faithful, and bear true allegiance to the State of Maryland ; " and shall also subscribe a declaration of his belief in the Christian religion. LVL That there be a Court of Appeals, composed of persons of integrity and sound judgment in the law, whose judgment shall be final and conclusive, in all cases of appeal, from the General Court, Court of Chancery, and Court of Admiralty: that one person of integrity and sound judgment in the law, be appointed .Chancellor : that three persons of integrity and sound judgment in the law, be appointed judges of the Court now called the Provincial Court ; and that the same Court be hereafter called and known by the name of The General Court ; which Court shall sit on the western and eastern shores, for transacting and determining the business of the respective shores, at such times and places as the future Legislature of this State shall direct and appoint. LIX. That this Form of Government, and the Declaration of Rights, and no part thereof, shall be altered, changed, or abolished, unless a bill so to alter, change or abolish the same shall pass the General Assembly, and be published at least three months before a new election, and shall be confirmed by the General Assembly, after a new election of Delegates, in the first session after such new election ; provided that nothing in this form of government, which relates to the eastern shore particularly, shall at any time hereafter be altered, unless for the alteration and confirmation thereof at least two-thirds of all the members of each branch of the General Assembly shall concur. LX. That every bill passed by the General Assembly, when engrossed, shall be presented by the Speaker of the House of Delegates, in the Senate, to the Governor for the time being, who shall sign the same, and thereto affix the Great Seal, in the presence of the members of both Houses : every law shall be recorded in the General Court office of the western shore, and in due time printed, published, and certified under the Great Seal, to the several County Courts, in the same manner as hath been heretofore used in this State. — 1 Poore's Constitutions, 817. APPENDIX TO PART I. 429 CONSTITUTION OF NORTH CAROLINA. 1776.» A Declaration of Eights, &c. I. That all political power is vested in and derived from the people only. IV. That the legislative, executive, and supreme judicial powers of government, ought to be forever separate and distinct from each other. V. That all powers of suspending laws, or the execution of laws, by any authority, without consent of the Representatives of the people, is injurious to their rights, and ought not to be exercised. XXI. That a frequent recurrence to fundamental principles is absolutely necessary, to preserve the blessings of liberty. The CoNSTiTunoN, or Form op Goveenmbnt, &c. I.' That the legislative authority shall be vested in two distiuct branches, both dependent on the people, to wit, a Senate and House of Commons. XI. That all bills shall be read three times in each House, before they pass into laws, and be signed by the Speakers of both Houses. XIII.* That the General Assembly shall, by joint ballot of both houses, appoint Judges of the Supreme Courts of Law and Equity, Judges of Admiralty, and Attorney- General, who shall be commissioned by the Governor, and hold their offices during good- behaviour. XV.* That the Senate and House of Commons, jointly at their first meeting after each annual election, shall by ballot elect a Governor for one year, who shall not be eligible to that office longer than three years, in six successive years. . . . XVI. That the Senate and House of Commons, jointly, at their first meeting after each annual election, shall by ballot elect seven persons to be a Council of State for one year, who shall advise the Governor in the execution of his office ; and that four members shall be a quorum ; their advice and proceedings shall be entered in a jour- nal, to be kept for that purpose only, and signed by the members present ; to any part of which, any member present may enter his dissent. And such journal shall be laid before the General Assembly when called for by them. XXI. That the Governor, Judges of the Supreme Court of Law and Equity, Judges of Admiralty, and Attorney-General, shall have adequate salaries during their continuance in office. XXIII. That the Governor, and other officers, offending against the State, by vio- lating any part of this Constitution, mal-administration, or corruption, may be prose- cuted, on the impeachment of the General Assembly, or presentment of the Grand Jury of any court of supreme jurisdiction in this State. XXIX. That no Judge of the Supreme Court of Law or Equity, or Judge of Ad- miralty, shall have a seat in the Senate, House of Commons, or Council of State. XLIV. That the Declaration of Eights is hereby declared to be part of the Consti- tution of this State, and ought never to be violated, on any pretence whatsoever. — 2 Poore's Constitutions, 1409. 1 This constitution was framed by a " congress," " elected and chosen for that par- ticular purpose," which assembled at Halifax November 12, 1776, and completed its labors December 18, 1776. It was not submitted to.the people for ratification. [This constitution with amendments continued till 1861. — Ed.] 2 See amendments. ' See amendments. * See amendments. 430 APPENDIX TO PART I. CONSTITUTION OF GEORGIA. 1777.1 We, therefore, the representatives of the people, from whom all power originates, and for whose benefit all government is intended, by virtue of the power delegated to us, do ordain and declare, and it is hereby ordained and declared, that the following rules and regulations be adopted for the future government of this State : Akticle I. The legislative, executive, and' judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other. Akt. II. The legislature of this State shall be composed of the representatives of tlie people, as is hereinafter pointed out; and the representatives shall be elected yearly, and every year, on the first 1'nesday in U8fcember ; and the representatives so elected shall meet the first Tuesday in January following, at Savannah, or any other place or places where the house of assembly for the time being shall direct. On the first day of the meeting of the representatives so chosen, they shall proceed to the choice of a governor, who shall be styled " honorable ; " and of an executive council, by ballot out of their own body, viz. . two from each county, except those counties which are not yet entitled to send ten members. One of each county shall always attend, where the governor resides, by monthly rotation, unless the members of each county agree for a longer or shorter period. This is not intended to exclude either member attending. The remaining number of representatives shall be called the house of assembly ; and the majority of the members of the said house shall have power to proceed on business. Art. VII. The house of assembly shall have power to make such laws and regu- lations as may be conducive to the good order and well-being of the State ; provided such laws and regulations be not repugnant to the true intent and meaning of any rule or regulation contained in this constitution. The house of assembly shall also have power to repeal all laws and ordinances they find injurious to the people ; and the house shall choose its own speaker, appoint its own officers, settle its own rules of proceeding, and direct writs of election for sup- plying intermediate vacancies, and shall have power of adjournment to any time or times within the year. Art. VIII. All laws and ordinances shall be three times read, and each reading shall be on different and separate days, except in cases of great necessity and danger ; and all laws and ordinances shall be sent to the executive council after the second reading, for their perusal and advice. Art. XIX. The governor shall, with the advice of the executive council, exercise the executive powers of government, according to the laws of this State and the con- stitution thereof, save only in the ease of pardons and remission of fines, which he shall in no instance grant ; but he may reprieve a criminal, or suspend a fine, until the meeting of the assembly, who may determine therein as they shall judge fit. Art. XXXVI. There shall be established in each county a court, to be called a superior court, to be held twice in each year. . . . Art. XL. All causes, of what nature soever, shall be tried in the supreme court, except as hereafter mentioned ; which court shall consist of the chief -justice, and three or more of the justices residing in the county. In case of the absence of the chief-justice, the senior justice on the bench shall act as chief-justice, with the clerk of the county, attorney for the State, sheriff, coroner, constable, and the jurors ; and in case of the absence of any of the aforementioned officers, the justices to appoint others in their room pro tempore. And if any plaintiff or defendant in civil causes shall be dissatisfied with the determination of the jury, then, and in that case, they shall be at 1 This constitution was framed by a convention which assembled at Savannah October 1, 1776, in accordance with the recommendation of the Continental Congress that the people of the Colonies should form independent State governments. It was unanimously agreed to February 5, 1777. [This constitution, with amendments, continued till 1789. — Ed.] APPENDIX TO PART I. 431 liberty, within three days, to enter an appeal from that verdict, and demand a new trial by a special jury, to be nominated as follows, viz. : each party, plaintiff and defendant, shall choose six, six more names shall be taken indifferently out of a box provided for that purpose, the whole eighteen to be summoned, and their names to be put together into the box, and the first twelve that are drawn out, being present, shall be the special jury to try the cause, and from which there shall be no appeal. Art. XLI. The jury shall be judges of law, as well as of fact, and shall not be allowed to bring in a special verdict ; but if all or any of the jury have any doubts concerning points of law, they shall apply to the bench, who shall each of them in rotation give their opinion. Art. XLII. The jury shall be sworn to bring in a verdict according to law, and the opinion they entertain of the evidence ; provided it be not repugnant to the rules and regulations contained in this constitution. Art. XLIII. The special jury shall be sworn to bring in a verdict according to law, and the opinion they entertain of the evidence ; provided it be not repugnant to justice, equity, and conscience, and the rules and regulations contained in this constitution, of which they shall judge. Art. XLIX. Every officer of the State shall be liable to be called to account by the house of assembly. Art. LX. The principles of the habeas-corpus act shall be a part of this con- stitution. Art. LXIII. No alteration shall be made in this constitution without petitions from a majority of the counties, and the petitions from each county to be signed by a majority of voters in each county within this State ; at which time the assembly shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions preferred to the assembly by the majority of the counties as aforesaid. — 1 Poore's Constitutions, 377. CONSTITUTION OF NEW YORK. 1777.1 I. This convention, therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that no authority shall, on any pre- tence whatever, be exercised over the people or members of this State but such as shall be derived from and granted by them. II. This convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that the supreme legislative power within this State shall be vested in two separate ami distinct bodies of men ; the one to be called the assembly of the State of New York, the other to be called the senate of the State of New York ; who together shall form the legislature, and meet once at least in every year for the despatch of business. III. And whereas laws inconsistent with the spirit of this constitution, or with the public good, may be hastily and unadvisedly passed : Re it ordained, that the governor for the time being, the chancellor, and the judges of the supreme court, or any two of them, together with the governor, shall be, and hereby are, constituted a council to revise all bills about to be passed into laws by the legislature ; and for that purpose shall assemble themselves from time to time, when the legislature shall be convened ; for which, nevertheless, they shall not receive any salary or consideration, under any pretence whatever. And that all bills which have passed the senate and assembly shall, before they become laws, be presented to the said council for their revisal and consideration ; and if, upon such revision and consideration, it should appear improper 1 This constitution was framed by a convention which assembled at White Plains, July 10, 1776, and, after repeated adjournments and changes of location, terminated its labors at Kingston, Sunday evening, April 20, 1777, when the constitution was adopted, with but one dissenting vote. It was not submitted to the peopfe for ratification. [This constitution, with amendments, continued till 1821. — Ed.] 432 APPENDIX TO PART I. to the said council, or a majority of them, that the said bill should become a law of this State, that they return the same, together with their objections thereto in writing, to the senate or house of assembly (in whichsoever the same shall have originated) who shall enter the objections sent down by the council at large in their minutes, and proceed to reconsider the said bill. But if, after such reconsideration, two-thirds of the said senate or house of assembly shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and, if approved by two-thirds of the members present, shall be a law. And in order to prevent any unnecessary delays, be it further ordained, that if any bill shall not be returned by the council within ten days after it sliall have been pre- sented, the same shall be a law, unless the legjglature shall, by their adjournment, render a return of the said bill within ten days impracticable ; in which case the bill shall be returned on the first day of the meeting of the legislature after the expiration of the said ten days.i XVII. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that the supreme executive power and authority of this State shall be vested in a governor ; and that statedly, once in every three years, and as often as the seat of government shall become vacant, a wise and discreet freeholder of this State shall be, by ballot, elected governor, by the freeholders of this State, qualified, as before described, to elect senators. . . . XXIII. That all officers, other than those- who, by this constitution, are directed to be otherwise appointed, shall be appointed in the manner following, to wit : The assembly shall, once in every year, openly nominate and appoint one of the senators from each great district, which senators shall form a council for the appointment of the said ofiicers, of which the governor for the time being, or the lieutenant-governor, or the president of the senate, when they shall respectively administer the government, shall be president and have a casting voice, bat no other vote ; and with the advice and consent of the said council, shall appoint all the said officers ; and that a majority of the said council be a quorum. And further, the said senators shall not be eligible to the said council for two years successively. XXIV. . . . That the chancellor, the judges of the supreme court, and first judge of the county court in every county, hold their offices during good behavior or until they shall have respectively attained the age of sixty years. XXXII. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare, that a court shall be instituted for the trial of impeachments, and the correction of errors, under the regu- lations which shall be established by the legislature ; and to consist of the president of the senate, for the time being, and the senators, chancellor, and judges of the supreme court, or the major part of them ; except that when an impeachment shall be prosecuted against the chancellor, or either of the judges of the supreme court, the person so impeached shall be suspended from exercising his office nntil his acquit- tal ; and, in like manner, when an appeal from a decree in equity shall be heard, the chancellor shall inform the court of the reasons of his decree, but shall not have a voice in the final sentence. And if the cause to be determined shall be brought up by writ of error, on a question of law, on a judgment in the supreme court, the judges of that court shall assign the reasons of such their judgment, but shall not have a voice for its affirmance or reversal. XXXV. . . . And this convention doth further ordain, that the resolves or reso- lutions of the congresses of the colony of New York, and of the convention of tlie State of New York, now in force, and not repugnant to the government established by 1 The whole number of bills passed by the legislature under this constitution was six thousand five hundred and ninety. The council of revision objected to one hundred and twenty-eight, of which seventeen were passed notwithstanding these objections. — Hough. [See Debates N. Y. Const. Conv. of 1821 for very interesting discussions as to the Council of Revision. — Ed.] APPENDIX TO PART I. 433 this constitution, shall be considered as making part of the laws of this State ; subject, nevertheless, to such alterations and provisions as the legislature of this State may, from time to time, make concerning the same. — 2 Poore's Constitutions, 1328. CONSTITUTION OF CONNECTICUT. 1776.> An Act containing an Abstract and Declaration of the Rights and Privileges of the People of this State, and securing the same. The People of this State, being by the Providence of God, free and independent, have the sole and exclusive Right of governing themselves as a free, sovereign, and independent State ; and having from their Ancestors derived a free and excellent Constitution of Gov- ernment whereby the Legislature depends on the free and annual Election of the People, they have the best Security for the Preservation of their civil and religious Rights and Liberties. And forasmuch as the free Fmition of such Liberties and Privileges as Humanity, Civility and Christianity call for, as is due to every Man in his Place and Proportion, without Impeachment and Infringement, hath ever been, and will be the Tranquility and Stability of Churches and Commonwealths ; and the Denial thereof, the Disturbance, if not the Ruin of both. Paragraph 1. Be it enacted and declared by the Governor, and Council, and House of Representatives, in General Court assembled. That the ancient Form of Civil Gov- ernment, contained in the Charter from Charles the Second, King of England, and adopted by the People of this State, shall be and remain the Civil Constitution of this State, under the sole authority of the People thereof, independent of any King or Prince whatever. And that this Republic is, and shall forever be and remain, a free, sovereign and independent State, by the Name of the STATE of CON- NECTICUT. 2. And be it further enacted and declared, That no Man's Life shall be taken away : No Man's Honor or good Name shall be stained ; No Man's Person shall be arrested, restrained, banished, dismembered, nor any Ways punished ; No Man shall be deprived of his Wife or Children : No Man's Goods or Estate shall be taken away from him, nor any Ways indamaged under the Colour of Law, or Countenance of Authority ; unless clearly warranted by the Laws of this State. 3. That all the free Inhabitants of this or any other of the United States of America, and Foreigners in Amity with this State, shall enjoy the same justice and Law within this State, which is general for the State, in all Cases proper for the Cognizance of the Civil Authority and Court of Judicature within the same, and that without Partiality or Delay. 4. And that no Man's Person shall be restrained, or imprisoned, by any authority whatsoever, before the Law hath sentenced him thereunto, if he can and will give sufficient Security, Bail, or Mainprize for his Appearance and good Behaviour in the mean Time, unless it be for Capital Crimes, Contempt in open Court, or in such Cases wherein some express Law doth allow of, or order the aame.^ — 1 Poore's Constitutions, 257. ' This continued the charter of 1662 in force as the organic law of the State. 2 The charter of Charles II. (1 Poore's Const. 252) made certain persons and "all such others as now are or hereafter shall be admitted and made free of the company and society of our Colony of Connecticut ... a body corporate and politic, ... to the end the affairs and business . . . concerning the same (colony) may be duly ordered and managed." The company was to be directed by a Governor, Deputy-Governor, and twelve assist- ants, chosen out of the freemen of the company, " which said officers shall apply themselves to take care for the best disposing and ordering of the general business and affairs of and concerning the land and hereditaments hereinafter mentioned to be VOL. I. —28 434 APPENDIX TO PART I. RHODE ISLAND. This State lived under the charter of Charles II. of 1663, until the year 1842, when a constitution was adopted of its own making. . Several unsuccessful efforts to this end had previously been made. The charter was substantially like that of Connecticut. PASSAGES FROM THE CONSTITUTION OF COLORADO. 1876.1 Preamble. We, the people of Colorado, with profound reverence for the Supreme Ruler of the Uni- verse, in order to form a more independent and perfect government, establish justice, insure tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the State of Colorado. Article I. Boundaries. The boundaries of the State of Colorado shall be as follows : Commencing on the thirty-seventh parallel of north latitude, where the twenty-fifth meridian of longitude west from Washington crosses the same ; thence north on said meridian to the forty- first parallel of north latitude ; thence along said parallel west to the thirty-second meridian of longitude west from Washington ; then south on said meridian to the thirty-seventh parallel of north latitude ; thence along Said thirty-seventh parallel of north latitude to the place of beginning. granted, and the plantation thereof, and the government of the people thereof." The Governor might call the company together at any time " to consult and advise of the business and affairs of the company." Twice a year, at least, there must be such a " general meeting," " assembly," or " court " of the freemen, or such as those of " the respective towns, cities, and places " should depute to act for them. These Gen- eral Courts might admit other freemen or elect the Governor, Deputy-Governor, and assistants. It was provided " that all, and every the subjects of us, our heirs, or successor.s, which shall go to inhabit within the said colony, and every of their children, which shall happen to be born there, or on the seas in going thither, or returning from thence, shall have and enjoy all liberties and immunities of free and natural subjects within any the dominions of us, our heirs, or successors, to all intents, constructions, and purposes whatsoever, as if they and every of them were born within the realm of England." Power was given to the Governor, Deputy Governor, and assistants " to erect and make such judicatories, for the hearing, and determining of all actions, causes, mat- ters, and things happening within the said colony, or plantation, and which shall be in dispute, and depending there, a.s they shall think fit, and convenient, and also from time to time to make, ordain, and estnblish all manner of wholesome, and reasonable laws, statutes, ordinances, directions, and instructions, not contrary to the laws of this realm of England, . . . ordaining and appointing, that all such laws, statutes and or- dinances, instructions, impositions and directions as shall be so made by the Governor, Deputy-Governor, and assistants as aforesaid, and published in writing under their common seal, shall carefully and duly be observed, kept, performed, and put in execution, according to the true intent and meaning of the same, and these our letters patertts, or the duplicate, or exemplification thereof, shall be to all and every such offi- cers, superiors and inferiors from time to time, for the putting of the same orders, laws, statutes, ordinances, instructions, and directions in due execution, against us, our heirs and successors, a sufficient warrant and discharge." Under this charter, adopted and Supplemented in the brief enactment of 1776, the State of Connecticut lived until the year 1818. — Ed. 1 See ante, 54. — E». APPENDIX TO PART I. 435 Article II. Bill op Rights. Sbc. 14. That private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and except for reservoirs, drains, flumes, or ditches on or across the lands of others, for agricultural, mining, milling, domestic, or sanitary purposes. Sec. 15. That private property shall not be taken or damaged, for public or pri- vate use, without just compensation. Such compensation shall be ascertained by a board of commissioners, of not less than three freeholders, or by a jury, when required by the owner of the property, in such manner as may be prescribed by law, and until the same shall be paid to tlie owner, or into court for the owner, the property shall not be needlessly disturbed, or the proprietary rights of the owner tlierein divested ; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public. Sec. 17. That no person shall be imprisoned for the purpose of securing his testi- mony in any case longer than may be necessary in order to take his deposition. If he can give security he shall be discharged ; if he cannot give security, his deposition shall be taken by some judge of the Supreme, Disti-ict, or County Court, at the earli- est time he can attend, at some convenient place by him appointed for that purpose, of which time and place the accused and the attorney prosecuting for the people shall have reasonable notice. The accused shall have the right to appear in person and by counsel. If he have no counsel the judge shall assign him one in that behalf only. On the completion of such examination the witness shall be discharged on his owu recognizance, entered in before said judge, but such deposition shall not be used if, in the opinion of the court, the personal attendance of the witness might be procured by the prosecution, or is procured by the accused. No exception shall be taken to such deposition as to matters of form. Sec. 18. That no person shall be compelled to testify against himself in a criminal case, nor shall any person be twice put iu jeopardy for the same offence. If the jury disagree, or if the judgment be arrested after verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy. Sec. 23. The right of trial by jury shall remain inviolate iu criminal cases ; bnt a jury in civil cases in all courts, or in criminal cases in courts not of record, may con- sist of less than twelve men, as may be prescribed by law. Hereafter a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment ; Provided, the General Assembly may change, regulate, or abolish the grand-jury system. Akticlb V. Legislative Depakt.ment. Sec. 6. Each member of the first General Assembly, as a compensation for his ser- vices, shall receive four dollars for each day's attendance, and fifteen cents for each mile necessarily travelled in going to and returning from the seat of government ; and shall receive no other compensation, perquisite, or allowance whatsoever. No session of the General Assembly, after the first, shall exceed forty days. After the first ses- sion the compensation of the members of the General Assembly shall be as provided by law : Provided, That no General Assembly shall fix its own compensation. Sec. 19. No Act of the General A.ssembly shall take effect until ninety days after its passage, unless in case of emergency (which shall be expressed in the preamble or body of the Act), the General Assembly shall, by a vote of two-thirds of all the mem- bers elected to each House, otherwise direct. No bill, except the general appropria- tion for the expenses of the government only, introduced in either House of the General Assembly after the first twenty-five days of the session shall become a law. Sec. 20. No bill shall be considered or become a law unless referred to a commit- tee, returned therefrom, and printed for the use of the members. 436 APPENDIX TO PART I. Sec. 21. No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title ; but if any subject shall be embraced in any Act which shall not be expressed in the title, such Act shall be void only as to so mucii thereof as shall not be so expressed. Sjkc. 22. Every bill sliall be read at length, on three different days, in each House ; all substantial amendments made thereto shall be printed for the use of the members, before the final vote is taken on the bill ; and no bill shall become a law except by vote of ", majority of all the members elected to each House, nor unless on its final passage the vote be taken by ayes and noes, and the names of those voting be entered on the journal. Sec. 23. No amendment to any bill by one House shall be concurred in by the other, nor shall the report of any committee of conference be adopted in either House, except by a vote of a majority of the members elected thereto, taken by ayes and noes, and the names of those voting recorded upon the journal thereof. Sec. 24. No law shall be revived, or amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length. Sec. 25. The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say : Por granting divorces ; laying out, opening, altering, or working roads or highways ; vacating loads, town-plats, streets, alleys, and public grounds ; locating or changing county-seats ; regulating county or township affairs ; regulating the practice in courts of justice ; regulating the jurisdic- tion and duties of justices of the peace, police magistrates, and constables ; changing the rules of evidence in any trial or inquiry ; providing for changes of venue in civil or criminal cases ; declaring any person of age ; for limitation of civil actions or giving effect to informal or invalid deeds ; summoning or impanelling gtand or petit juries ; providing for the management of common schools ; regulating the rate of interest on money ; the opening or conducting of any election, or designating the place of voting; the sale or mortgage of real estate belonging to minors or others under disability ; the protection of game or fish ; chartering or licensing ferries or toll-bridges ; remitting fines, penalties, or forfeitures ; creating, increasing, or decreasing fees, percentage, or allowances of public officers ; changing the law of descent ; granting to any corporar tion, association, or individual the right to lay down railroad-tracks ; granting to any corporation, association, or individual any special or exclusive privilege, immunity, or franchise whatever. In all other cases, where a general law can be made applicable, no special law shall be enacted. Sec. 26. The presiding officer of each Honse shall, in the presence of the House over which he presides, sign all bills and joint resolutions passed by the General As- sembly, after their titles shall have been publicly read, immediately before signing ; and the fact of signing shall be entered on the journal. Sec. 27. The General Assembly shall prescribe by law the number, duties, and compensation of the officers and employes of each House ; and no payment shall be made from the State Treasury, or be in any way authorized to any person, except to an acting officer or employ^ elected or appointed in pursuance of law. Sec. 28. No bill shall be passed giving any extra compensation to any public officer, servant or employ^, agent or contractor, after services shall have been rendered or contract made, nor providing for the payment of any claim made against the State without previous authority of law. Sec. 29. All stationery, printing, paper, and fuel used in the legislative and other departments of government, shall be furnished ; and the printing and binding and distributing of the laws, journals, department reports, and other printing and binding; and the repairing and furnishing the halls and rooms used for the meeting of the Gen- eral Assembly and its committees, shall be performed under contract, to be given to the lowest responsible bidder, below such maximum price and under such regulations as may be prescribed by law. No member or officer of any department of the govern- •ment shall be in any way interested in any such contract ; and all such contracts shall 'be subject to the approval of the Governor and State Treasurer. APPENDIX TO PART I. 437 Sec. ^0. Except as otherwise provided in this ConStitntion, no law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election or appointment Provided, This shall not be construed to forbid the General Assembly to fix the salary or emoluments of those first elected or appointed under this Constitution. Sec. 31. All bills for raising revenue shall originate in the House of Representar lives ; but the Senate may propose amendments, as in case of other bills. Sec. 32. The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative, and judicial departments of the State, interest on the public debt, aud for pablic schools. All other appropriations shall be made by separate bills, each embracing but one subject. Sec. 33. No money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof. Sec. 34. No appropriation shall be made for charitable, industrial, educational, or benevolent purposes to any person, corporation, or community not under the absolute control of the State, nor to any denominational or sectarian institution or association. Sec. 35. The General Assembly shall not delegate to any special commission, pri- vate corporation, or association any power to make, supervise, or interfere with any municipal improvement, money, propertj-, or effects, whether held in trust or otherwise, or to levy taxes, or to perform any municipal function whatever. Sec. 36. No act of the General Assembly shall authorize the investment of trust- funds by executors, administrators, guardians, or other trustees, in the bonds or stock of any private corporation. Sec. 38. No obligation or liability of any person, association, or corporation, held or owned by the State, or any municipal corporation thereiu, shall ever be exchangedi tiausterred, remitted, released, or postponed, or in any way diminished by the General Assembly, nor shall such liability or obligation be extinguished except by payment thereof into the proper treasury. Sec. 39. Every order, re-solution, or vote to which the concurrence of both Houses may be necessary, except on the question of adjournment, or relating solely to tlie transaction of business of the two Houses, shall be presented to the Governor, and be- fore it shall take effect, be approved by him, or being disapproved, shall be repassed bv two-thirds of both Houses, according to the rules aud limitations prescribed in case of a bill. Sec. 40. If any person elected to either House of the General Assembly shall offer or promise to give his vote or influence in favor of or against any measure or proposi- tion, pending or proposed to be introduced into the General Assembly, in consideration or upon condition that any other person elected to the same General Assembly will give or will promise or assent to give his vote or influence in favor of or against any other measure or proposition, pending or proposed to he introduced in such General Assembly, the person making such offer or promise shall be deemed guilty of solicitation and bri- bery. If any member of the General Assembly shall give his vote or influence for or against any measure or proposition pending in such General Assembly, or offer, promise, Or assent so to do, upon condition that any other member will give or- will promise or assent to give his vote or influence in favor of or against any other measure or propo- sition pending or proposed to be introduced in such General Assembly, or in con.si(ler- ation that any other member hath given his vote or influence for or against any otlier measure or proposition in such General Assembly, he shall be deemed guilty of bribery ; aud any member of the General Assembly, or person elected thereto, who shall be guilty of either of such offences shall be expelled, and shall not be thereafter eligible to the same General Assembly ; and, on the conviction thereof in the civil courts, shall be liable to such further penalty as may be prescribed by law. Sec. 41. Any person who shall, directly or indirectly, offer, give, or promise any money or thing of value, testimonial, privilege, or personal advantage to any executive or judicial officer or member of the General Asseml)ly to inftuence liim in the perform- ance of any of his public or official duties, shall be deemed guilty of bribery, and be punished in such manner 3s shall be provided by law. 438 APPENDIX TO PART I. Sec. 42. The offence of corrlipt solicitation of members of the Gener^ Assembly, or of public officers of the State, or of any municipal division thereof, and any occupation or practice of solicitation of snch members or officers to influence their official action, shall be defined by law, and shall be punished by fiue and imprisonment. Sec. 43. A member who has a personal or private interest in any measure or bill proposed or pending before the General Assembly, shall disclose the fact to the House of which he is a member, and shall not vote thereon. Aettcle VI. Judicial Department. Supreme Court. Sec. 6. The judges of the Supreme Court shall be elected by electors of the State at large, as hereinafter provided. Sec. 7. The term of office of the judges of the Supreme Court, except as in this article otherwise provided, shall be nine years. Sec. 8. The judges of the Supreme Court shall, immediately after the first elec- tion under this Constitution, be classified by lot, so that one shall hold his office for the terra of three years, one for the term of six years, and one for the term of nine years. The lot shall be drawn by the judges, who shall for that purpose assemble at the seat of government, and they shall cause the result thereof to be certified to the Secretary of the Territory, and filed in his office. The judge having the shortest term to serve, not holding his office by appointment or election to fill a vacancy, sliall be the chief -justice, and shall preside at all terms of the Supreme Court, and, in case of his absence, the judge having in like manner the next shortest term to serve shall preside in his stead. District Courts. Sec. 18. The judges of the Supreme and District Courts shall each receive such salary as may be provided by law ; and no such judge shall receive any other compensation, perquisite, or emolument for or on account of his office, in any form whatever, nor act as attorney or counsellor at law. Miscellaneous. Sec. 27. The judges of Courts of Kecord, inferior to the Supreme Court, shall, on or before the first day in July in each year, report in writing to the judges of tlie Supreme Court such defects and omissions in the laws as their knowledge and experience may suggest, and the judges of the Supreme Court shall, on or before the first day of December of each year, report in writing to the Governor, to be by him transmitted to the General Assembly, together with his message, such defects and omissions in the Constitution and laws as they may find to exist, together with appropriate bills for curing the same. Article VII. Suffrage and Elections. Section 1. Every male person over the age of twenty-one years, possessing the following qualifications, shall be entitled to vote at all elections : First. He shall be a citizen of the United States, or, not being a citizen of the United States, he shall have declared his intention, according to law, to become such citizen, not less than four months before he offers to vote. Second. He shall have resided in the State six months immediately preceding the election at which he offers to vote, and in the county, city, town, ward, or precinct; such time as may be prescribed by law : Provided, That no person shall be denied the right to vote at any school-district election, nor to hold any school-district office, on account of sex. Sec. 2. The General Assembly shall, at the first session thereof, and may at any subsequent session, enact laws to extend the right of suffrage to women of lawful age, and otherwise qualified according to the provisions of this article. No such enactment shall be of effect until submitted to the vote of the qualified electors at a general election, nor unless the same be approved by a majority of those voting thereon. Sec. 3. The General Assembly may prescribe, by law, an educational quali- fication for electors, but no such law shall take effect prior to the year of our Lord one thousand eight hundred and ninety, and no qualified elector shall be thereby disqualified. APPENDIX TO PART L 439 Sec. 4. For the purpose of voting and eligibility to office, no person shall be deemed to have gained a residence by reason of his presence, or lost it by reason of ^118 absence, while in the civil or military service of the State, or of the United States, nor while a student at any institution of learning, nor while kept at public expense in any poor-honse or other asylum, nor while confined in public prison. Sec. 5. Voters shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at elections, and in going to aud return- ing therefrom. Sec. 6. No person except a qualified elector shall be elected or appointed to any civil or military ofiice in the State. Sec. 9. In trials of contested elections, and for offences arising under the elec- tion-law, no person shall be permitted to withhold his testimony on the ground that it may criminate himself, or subject him to public infamy ; but such testimony shall not be used against him in any judicial proceedings, except for perjury in giving such testimony. Sec. 10. No person while confined in any public prison shall be entitled to vote ; but every such person who was a qualified elector prior to such imprisonment, and who is released therefrom by virtue of a pardon, or by virtue of having served out his full terra of imprisonment, shall, without further action, be invested with all the rights of citizenship, except as otherwise provided in this Constitution. Article VIII. State Institdtions. Sec. 2. The General Assembly shall have no power to change or to locate the seat of government of the State, but shall at its first session subsequent to the year of our Lord one thousand eight hundred and eighty, provide by law for submittiog the question of the permanent location of the seat of government to the qualified elec- tors of the State, at the general election then next ensuing, aud a majority of all the votes upon said question, cast at said election, shall be necessary to determine the location thereof. Said General Assembly shall also provide that in case there shall be no choice of location at said election, the question of choice between the two places for which the highest number of votes shall have been cast, shall be submitted in like manner to the qualified electors of the State, at the next general election : Provided, That until the seat of government shall have been permanently located as herein pro- vided, the temporary location thereof shall remain at the city of Denver. Sec. 3. When the seat of government shall have been located as herein provided, the location thereof shall not thereafter be changed except by a vote of two-thirds of all the qualified electors of the State voting on that question, at a general election, at which the question of location of the seat of government shall have been submitted by the General Assembly. Sec. 4. The General Assembly shall make no appropriation or expenditures for capitol buildings or grounds until the seat of government shall have been permanently located as herein provided. Sec. 5. The following territorial institutions, to wit, The University at Boulder, the Agricultural College at Fort Collins, the School of Mines at Golden, the Institute for the Education of Mutes at Colorado Springs, shall, upon the adoption of this Con- stitution, hepome institutions of the State of Colorado, and the management thereof subject to the control of the State, under such laws and regulations as the General Assembly shall provide ; and the location of said institutions, as well as all gifts, grants, and appropriations of money and property, real and personal, heretofore made to said several institutions, are hereby confirmed to the use and benefit of the same respec- tively . Provided, This section shall not apply to any institution, the property, real or personal, of which is now vested in the trustees thereof, until such property be trans- ferred by proper conveyance, together with the control thereof, to the officers provided for the management of said institution by this Constitution or by law. 440 APPENDIX TO PART I. Article IX. Education. Sec. 2. The General Assembly shall, as soon as practicable, provide, for the" es- tablishment and maintenance of a thorough and uniform system of free public schools throughout the State wherein all residents of the State between the ages of six and twenty-one years may be educated gratuitously. One or more public schools shall be maintained in each school-district within the State at least three months in each year ; any school-district failing to have such school shall not be entitled to receive any por- tion of the school-fund for that year. Sec. 7. Neither the General Assembly, nor any county, city, town, township, school- district, or other public corporation shall ever malie any appropriation, or pay from any public fund or moneys whatever, auything^n aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution con- trolled by any church or sectarian denomination whatsoever ; nor shall any grant or donation of land, money, or other personal property ever be made by the State, or any such public corporation, to any church or for any sectarian purpose. Sec. 8. No religious test or qualification shall ever be required of any person as a condition of admission into any public educational institution of the State, either as teacher or student ; and no teacher or student of any such institution shall ever be required to attend or participate in any religious service whatever. No sectarian tenets or doctrines shall ever be taught in the public schools, nor shall any distinction or classification of pupils be made on account of race or color. Sec. 10. It shall be the duty of the State Board of Land Commissioners to provide for the location, protection, sale, or other disposition of all the lands heretofore, or which- may hereafter be, granted to the State by the General Government, under such regulations as may be prescribed by law, and in such manner as will secure the maxi- mum possible amount therefor. No law shall ever be passed by the General As- sembly granting any privileges to persons who may have settled upon any such public lands subsequent to the survey thereof by the General Government, by which the amount to be derived by the sale, or other disposition of such lands, shall be dimin- ished, directly or indirectly. The General Assembly shall, at the earliest practicable period, provide by law that the several grants of land made by Congress to the State shall be judiciously located and carefully preserved and held in trust subject to dis- posal for the use and benefit of the respective objects for which said grants of land were made, and the General Assembly shall provide for the sale of said lands from time to time, and for the faithful application of the proceeds thereof in accordance with the terms of said grants. Article X. Revenue. Sec. 3. All taxes shall be uniform upon the same class of subjects witliin the ter ritorial limits of the authority levying the tax, and shall be levied and collected under general laws, which shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personal : Provided, That mines and mining- claims, bearing gold, silver, and other precious metals (except the net proceeds and surface improvements thereof), shall be exempt from taxation for the period of ten years from the date of the adoption of this Constitution, and thereafter may be taxed as provided by law. Ditches, canals, and flumes owned and used by individuals or corporations for irrigating lands owned by such individuals or corporations, or the in- dividual members thereof, shall not be separately taxed so long as they shall be owned and used exclusively for such purpose. Sec. 5. Lots, with the buildings thereon, if said buildings are used solely and exclusively for religious worship, for schools, or for strictly charitable purposes, also cemeteries not used or held for private or corporate profit, shall be exempt from taxation, unless otherwise provided by general law. Sec. 6. All laws exempting from taxation property other than that hereinbefore mentioned sliall be void. APPENDIX TO PART I. 441 Sec. 7. The General Assembly shall not impose taxes for the purposes of any county, city, town, or other inuuicipal corporation, but may, by law, vest in the cor- porate authorities thereof respectively the power to assess and collect taxes for all purposes of such corporation. Sec. 8. No county, city, town, or other municipal corporation, the inhabitants thereof, nor the property therein, shall be released or discharged from their, or its, proportionate share of taxes to be levied for State purposes. Sec. 9. The power to tax corporations and corporate property, real and personal, shall never be relinquished or suspended. Sec. 10. All corporations in this State, or doing business therein, shall be subject to taxation for State, county, school, municipal, and other purposes, on the real and personal property owned or used by them within the territorial limits of the authority levying the tax. Sec. 11. The rate of taxation on property, for State purposes, shall never exceed six mills on each dollar of valuation ; and whenever the taxable property within the State shall amount to one hundred million dollars the rate shall not exceed four mills on each dollar of valuation ; and whenever the taxable property within the State shall amount to three hundred million dollars the rate shall never thereafter exceed two mills on each dollar of valuation, unless a proposition to increase such rate, specifying the rate proposed, and the time during which the same shall be levied, be first sub- mitted to a vote of such of the qualified electors of the State as in the year next pre- ceding such election shall have paid a property-tax assessed to them within the State, and a majority of those voting thereon shall vote in favor thereof, in such manner as may be provided by law. Sec. 12. The Treasurer shall keep a separate account of each fund in his hands, and shall, at the end of each quarter of the fiscal year, report to the Governor in writing, under oath, the amount of all moneys in his hands to the credit of every such fund, and the place where the same are kept or deposited, and the number and amount of every warrant received, and the number and amount of every warrant paid there- from during the quarter. Swearing falsely to any such report shall be deemed per- jury. The Governor shall cause every such report to be immediately published in at least one newspaper printed at the seat of government, and otherwise as the General Assembly may require. The General Assembly may provide by law further regu- lations for the safe-keeping and management of the public funds in the hands of the Treasurer ; but notwithstanding any such regulation, the Treasurer and his sureties shall in all cases be held responsible therefor. Sec. 13. The making of profit, directly or indirectly, out of State, county, city, town, or school-district money, or using the same for any purpose not authorized by law, by any public officer, shaU be deemed a felony, and shall be punished as provided by law. Sec. 14. Private property shall not be taken or sold for the payment of the corpo- rate debt of municipal corporations. Sec. 15. There shall be a State Board of Equalization, consisting of the Governor, State Auditor, State Trea,surer, Secretary of State, and Attorney-General; also, in each county of this State, a County Board of Equalization, consisting of the Board of County Commissioners of said county. The duty of the State Board of Equalization shall be to adjust and equalize the valuation of real and personal property among the several counties of the State. The duty of the County Board of Equalization shall be to adjust and equalize the valuation of real and personal property within their respec- tive counties. Each board shall also perform such other duties as may be prescribed by law. Sec. 16. No appropriation shall be made, nor any expenditure authorized by the General Assembly, whereby the expenditure of the State, during any fiscal year, shall exceed the total tax then provided for by law and applicable for such appropriation or expenditure, unless the General Assembly making such appropriation shall provide for levying a sufficient tax, not exceeding the rates allowed in section eleven of this article, to pay such appropriation or expenditure within such fiscal year. This provision shall not apply to appropriations or expenditures to suppress insurrection, defend the State, or assist in defending the United States in time of war. 442 APPENDIX TO PART I. Ahticle XI. Public Indebtedness. Section I. Neither the State, nor any county, city, town, township, or schoolr district shall lend or pledge the credit or faith thereof, directly or indirectly, in any manner to, or in aid of, any person, company, or corporation, public or private, for any amount or for any purpose whatever, or become responsible for any debt, con- tract, or liability of any person, company, or corporation, public or private, in or out of the State. Sec. 2. Neither the State, nor any county, city, town, township, or school-district shall make any donation or grant to, or in aid of, or become a subscriber to, or share- holder in, any corporation or company, or a joint owner with any person, company, or corporation, public or private, in or out of the State, except as to such ownership as may accrue to the State by escheat, or by forfeiture, by operation or provision of law ; and except as to such ownership as may accrue to the State, or to any county, city, town, township, or school-district, or to either or any of them, jointly with any person, company, or corporation, by forfeiture or sale of real estate for non-payment of taxes, or by donation or devise for public use, or by purchase by or on behalf of any or either of them, jointly withi any or either of them, under execution in cases of fine, penalties, or forfeiture of recognizance, breach of condition of official bond, or of bond to secure public moneys, or the performance of any contract in which they or any of them may be jointly or severally interested. Sec. 3. The State shall not contract any debt by loan, in any form, except to pro- vide for casual deficiencies of revenue, erect public buildings for use of the State, sup- press insurrection, defend the State, or, in time of war, assist in defending the United States ; and the amount of debt contracted in any one year to provide for deficiencies of the revenue shall not exceed one-fourth of a mill on each dollar of valuation of tax- able property within the State, and the aggregate amount of such debt shall not at any time exceed three-fourths of a mill on each dollar of said valuation until the valuation shall equal one hundred millions of dollars, and thereafter such debt shall not exceed one hundred thousand dollars, and the debt incurred in any one year for erection of public buildings shall not exceed one-half mill on each dollar of said valuation, and the aggregate amount of such debt shall never at any time exceed the sum of fifty thousand dollars (except as provided in section five of this article) ; and in all cases the valua- tion in this section mentioned shall be that of the assessment last preceding the creation of said debt. Sec. 4. In no case shall any debt above mentioned in this article be created, except by a law which sliall be irrepealable, until the indebtedness therein provided for shall have been fully paid or discharged ; such law shall specify the purposes to which the funds so raised shall be applied, and provide for the levy of a, tax sufficient to pay the interest on, and extinguish the principal of, such debt within the time limited by such law for the payment thereof, which, in the case of debts contracted for the erection of public buildings and supplying deficiencies of revenue, shall not be less than ten nor more than fifteen years ; and the funds arising from the collection of any such tax shall not be applied to any other purpose than that provided in the law levying the same ; and when the debt thereby created shaU be paid or discharged such tax shall cease, and the balance, if any, to the credit of the fund, shall immediately be placed to the credit of the general fund of the State. Sec. 5. A debt for the purpose of erecting public buildings may be created by law, as provided for in section four of this article, not exceeding in the aggregate three mills on each dollar of said valuation : Provided, That before going into effect such law shall be ratified by the vote of a majority of such qualified electors of the State as shall vote thereon at a general election, under such regulations as the General Assembly may prescribe. Sec. 6.. No county shall contract any debt by loan in any form, except for the purpose of erecting necessary public buildings, making or repairing public roads and bridges ; and such indebtedness contracted in any one year shall not exceed the rates upon the taxable property in such county following, to wit : counties in which the assessed valuation of taxable property shaJl exceed five millions of dollars, one APPENDIX TO PART I. 443 dollar and fifty cents on each thousand dollars thereof ; counties in which such valu- ation shall be less than five millions of dollars,, three dollars on each thousand dollars thereof; and the aggregate amount of indebtedness of any county, for all purposes, exclusive of debts contracted before the adoption of this Constitution, shall not at any time exceed twice the amount above herein limited, unless when, in manner provided by law, the question of incurring such debt shall, at a general election, be submitted to such of tlie qualified electors of such county as in the year last preceding such election shall have paid a tax upon property assessed to them in such county, and a majority of those voting thereon shall vote in favor of incurring the debt ; but the bonds, if any be issued therefor, shall not run less than ten years ; and the aggregate amount of debt so contracted shall not at auy time exceed twice the rate upon the valuation last herein mentioned : Provided, That this section shall not apply to coun- ties having a valuation of less than one million of dollars. Sec. 7. No debt by loau in any form shall be contracted by any school-district for the purpose of erecting and furnishing school-buildings or purchasing grounds, unless the proposition to create such debt shall first be submitted to such qualified electors of the districts as shall have paid a sehool-tax therein in the year next preceding such election, and a majority of those voting thereon shall vote in favor of incurring such debt. Sec. 8. No city or town shall contract any debt by loan in any form, except by means of an ordinance, which shall be irrepealable until the indebtedness therein pro- vided for shall have been fully paid or discharged, specifying the purposes to which the funds to be raised shall be applied, and providing for the levy of a tax, not ex- ceeding twelve mills on each dollar of valuation of taxable property within such city or town, sufficient to pay the annual interest and extinguish the principal of such debt within fifteen, but not less than ten, years from the creation thereof ; and such tax, when collected, shall be applied only to the purposes in such ordinance specified until the indebtedness shall be paid or discharged ; but no such debt shall be created unless the question of incurring the same shall, at a regular election for councilmen, aldermen, or ofiicers of such city or town, be submitted to a vote of such qualified electors thereof as shall, in the year next preceding, have paid a property-tax therein, and a majority of those voting on the question, by ballot deposited in a separate ballot- box, shall vote in favor of creating such debt ; but the aggregate amount of debt so created, together with the debt existing at the time of such election, shall not at any time exceed three per cent of the valuation last aforesaid. Debts contracted for sup- plying water to sueh city or town are excepted from the operation of this section. The valuation in this section mentioned shall be in all cases that of the assessment next preceding the last assessment before the adoption of such ordinance. Sec. 9. Nothing contained in this article shall be so construed as to either impair or add to the obligation of any debt heretofore contracted by any county, city, town, or school-district in accordance with the laws of Colorado Territory, or prevent the con- tracting of any debt, or the issuing of bonds therefor, in accordance with said laws, upon any proposition for that purpose which may have been, according to said laws, submitted to a vote of the qualified electors of any county, city, town, or school-district before the day on which this Constitution takes effect. Article XII. Officers. Section 1. Every person holding any civil office under the Stfite or any munici- pality therein shall, unless removed according to law, exercise the duties of such office until his successor is duly qualified ; but this shall not apply to members of the General Assembly, nor to members of any board or assembly two or more of whom are elected at the same time ; the General Assembly may by law provide for suspend- ing any officer in his functions pending impeachment or prosecution for misconduct in office. Sec. 2. No person shall hold any office or employment of trust or profit, under the laws of the State or any ordinance of any municipality therein, without devoting his personal attention to the duties of the same. Sec. 3. No person who is now or hereafter may become a collector or receiver of 444 APPENDIX TO PAKT L public money, or the deputy or assistant of such collector or receiver, and who shall have become a defaulter iu his office, shall be eligible to or assume the duties of any oiBce of trust or profit in this State, under the laws thereof, or of any municipality therein, until he shall have accounted for and paid over all public money for which he may be accountable. Sec. i. No person hereafter convicted of embezzlement of public moneys, bribery, perjury, solicitation of bribery, or subornation of perjury, shall be eligible to the Gen- eral Assembly, or capable of holding any office of trust or profit in this State. Sec. 5. The District Court of each county shall, at each term thereof, specially give iu charge to the grand jury, if there be one, the laws regulating the account- ability of the County Treasurer, and shall appoint a committee of such grand jury, or of other reputable persons, nut exceeding five, to investigate the official accounts and affairs of the treasurer of such county, and report to the court the condition thereof. The judge of the District Court may appoint a like committee in vacation at any time, but not oftener than once in every three months. The District Court of the county wherein the seat of government may he shall have the like power to appoint commit- tees to investigate the official accounts and affairs of the State Treasurer and the Auditor of State. Sec. 6. Any civil officer or member of the General Assembly who shall solicit, demand, or receive, or consent to receive, directly or indirectly, for himself or for another, from any company, corporation, or person, any money, office, appointment, employment, testimonial, reward, thing of value or enjoyment, or of personal advan- tage or promise thereof, for his vote, official influence, or action, or for withholding the same, or with an understanding that his official influence or action shall be in any way influenced thereby, or who shall solicit or demand any such money or advantage, matter, or thing aforesaid for another, as the consideration of his vote, official influ- ence, or action, or for withholding the same, or shall give or withhold his vote, official influence, or action in consideration of the payment or promise of such money, advan- tage, matter, or thing to another, shall be held guilty of bribery, or solicitation of bribery, as the case may be, within the meaning of this Constitution, and shall incur the disabilities provided thereby for such offence, and such additional punishment as is or shall be prescribed by law. Article XIV. Counties. Section 1. The several counties of the Territory of Colorado, as they now exist, are hereby declared to be counties of the State. Sec. 2. The General Assembly shall have no power to remove the county-seat of any connty, but the removal of county-seats shall be provided for by general law, and no county-seat shall be removed unless a majority of the qualified electors of the county, voting on the proposition at a general election, vote therefor ; and no such proposition shall be submitted oftener than once iu four years, and no person shall vote on such proposition who shall not have resided ■ in the county six months and in the election-precinct ninety days next preceding such election. Sec. 3. No part of the territory of any connty shall be stricken off and added to an adjoining county without first submitting the question to the qualified voters of the county from which the territory is proposed to be stricken off ; nor unless a majority of all the qualified voters of said county voting on the question shall vote therefor. Sec 4. In all ca.ses of the establishment of any new county, the new county shall be held to pay its ratable proportion of all then existing liabilities of the county or counties from which such new county shall be formed. Sec. 5. When any part of a county is stricken off and attached to another county, the part stricken off shall be held to pay its ratable proportion of all then existing liabilities of the county from which it is taken. County Officers. Sec. 11. There shall, at the first election at which connty officers are chosen, and annnally thereafter, be elected in each precinct one justice of the peace and one APPENDIX TO PAKT L 445 constable, who shall each hold his office for the term of two years : Provided, That in precincts containing five thousand or more inhabitants, the number of justices and constables may be increased as provided by law. Sec. 12. The General Assembly shall provide for the election or appointment of such other county, township, precinct, and municipal officers as public convenience may require ; and their terms of office shall be as prescribed by law, not in any case to exceed two years. Sec. 13. The General Assembly shall provide, by general laws, for the organi- zation and classification of cities and towns. The number of such classes shall not exceed four, and the powers of each class shall be defined by general laws, so that all municipal corporations of the same class shall possess the same powers, and be sub- ject to the same restrictions. AkTICLE XV. COEPOKATIONS. Sec. 3. The General Assembly shall have the power to alter, revoke, or annul any charter of incorporation now existing and revocable at the adoption of tliis Constitu- tion, or any that may hereafter be created, whenever in their opinion it may be inju- rious to the citizens of the State, in such manner, however, that no injustice shall be done to the corporators. Sec. 4. All railroads shall be public highways, and all railroad companies shall be common carriers. Any association or cdrporation organized for the purpose shall have the right to construct and bperate a railroad between any designated points within this State, and to connect at the State line with railroads of other States and Territories. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad. Sec. 5. No railroad corporation, or the lessees or managers thereof, shall consoli- date its stock, property, or franchises with any other railroad corporation owning or having under its control a parallel or competing line. Sec. 6. All individuals, associations, and corporations shall have equal rights to have persons and property transported over any railroad in this State, and no undue or unreasonable discrimination shall be made in charges or in facilities for transporta- tion of freight or passengers within the State, and no railroad company, nor any lessee, manager, or employe thereof, shall give any preference to individuals, associations, or corporations in furnishing cars or motive-power. Sec. 7. No railroad or other transportation company in existence at the time of the adoption of this Constitution shall have the benefit of any future legislation without first filing in the office of the Secretary of State an acceptance of the provisions of this Constitution in binding form. Sec. 8. The right of eminent domain shall never be abridged, nor so construed as to prevent the General Assembly from taking the property and franchises of incor- porated companies and subjecting them to public use, the same as the property of individuals ; and the police powers of the State shall never be abridged, or so con- strued as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the State. Sec. 9. No corporation shall issue stocks or bonds, except for labor done, services performed, or money or property actually received, and all fictitious increase of stock and indebtedness shall be void. The stock of corporations shall not be increased ex- cept in pursuance of general law, nor without the consent of the persons holding a majority of the stock, first obtained at a meeting held after at least thirty days' notice given in pursuance of law. Sec. 10. No foreign corporation shall do any business in this State without having one or more known places of business, and an authorized agent or agents in the same upon whom process may be served. Sec. 11. No street railroad shall be constructed within any city, town, or incor- porated village without the consent of the local authorities having the control of tlie street or highway proposed to be occupied by such street-railroad. Sec. 12. TJJie General Assembly shall pass no law for the benefit of a railroad or other corporation, or any individual or association of individuals, retrospective in its 446 APPENDIX TO PART I. operation, or which imposes on the people of any county or municipal subdivision of the State a new liability in respect to transactions or considerations already past. Sec. 13. Any association or corporation, or tlie lessees or managers thereof, organ- ized for the purpose, or any individual, shall have the right to construct and maintain lines of telegraph within this State, and to connect the same with other lines ; and the General Assembly shall, by general law of uniform operation, provide reasonable regulations to give full effect to this section. No telegraph company shall consoli- date with, or hold a controlling interest in, the stock or bonds of any other telegraph company owning or having the control of a competing line, or acquire, by purchase or otherwise, any other competing line of telegraph. Skc. 14. If any railroad, telegraph, express, or other corporation organized under any of the laws of this State shall consolidate, bjf sale or otherwise, with any railroad, telegraph, express, or other corporation organized under any laws of any other State or Territory, or of the United States, tlie same shall not thereby become a foreign corporation, but the courts of this State shall retain jurisdiction over that part of the corporate property within the limits of the State in all matters which mny arise, as if said consolidation had not taken place. Sec. 15. It shall be unlawful for any person, company, or corporation to require of its servants or employes, as a condition of their employment or otherwise, any con- tract or agreement whereby such person, company, or corporation shall be released or discharged from liability or responsibility on account of personal injuries received by such servants or employes while in the service of such person, company, or corporation by reason of the negligence of such person, corapaify, or corporation, or the agents or employ^ thereof ; and such contracts shall be absolutely null and void. Article XVI. Mining and Ibsigation. Mining. Sec. 2. The General Assembly shall provide by law for the proper ventilation of mines, the construction of escapement shafts, and such other appliances as may be necessary to protect the health and secure the safety of the workmen therein, and shall prohibit the employment in the mines of children under twelve years of age. Sec. 3. The General Assembly may make such regulations from time to time as may be necessary for the proper and equitable drainage of mines. Sec. 4. The General Assembly may provide that the science of mining and metal- lurgy be taught in one or more of the institutions of learning under the patronage of the State. Irrigatio7i. Sec. 5. The water of every natural stream not heretofore appropriated within the State of Colorado is hereby declared to be the property of the public ; and the same is dedicated to the use of the people of the State, subject to appropriation as herein- after provided. Sec. 6. The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose ; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes. Sec. 7. All persons and corporations shall have the right of way across public, pri- vate, and corporate lands for the construction of ditches, canals, and flumes for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation. Sec. 8. The General Assembly shall provide by law that the board of county com- missioners, in their respective counties, shall have power, when application is made to them by either party interested, to establish reasonable maximum rates to be charged for the use of water, whether furnished by individujJs or corporations. APPENDIX TO PAKT I. 447 Article XVII. Militia. Sec. 4. The General Assembly shall provide for the safe-keeping of the public arms, military records, relies, and banners of the State. Sec. 5. No person having conscientious scruples against bearing arms shall be compelled to do militia duty in time of peace : Provided, Such person shall pay an equivalent for such exemption. Article XVIII. Miscellaneous. Section 1. The General Assembly shall pass liberal homestead and exemption laws. Sec. 2. The General Assembly shall have no power to authorize lotteries or gift enterprises for any purpose, and shall pass laws to prohibit the sale of lottery or gift- enterprise tickets in this State. Sec. 3. It shall be the duty of the General Assembly to pass such laws as may be necessary and proper to decide differences by arbitrators, to be appointed by mutual agreement of the parties to any controversy, who may choose that mode of adjustment. The powers and duties of such arbitrators shall be as prescribed by law. Sec. 5. The General Assembly shall prohibit by law the importation into this State, for the purpose of sale, of any spurious, poisonous, or drugged spirituous liquors, or spirituous liquors adulterated with any poisonous or deleterious substance, mixture, or compound ; and shall prohibit the compounding or manufacture within this State, except for chemical or mechanical purposes, of any of said liquors, whether they be denominated spirituous, vinous, malt, or otherwise ; and shall also prohibit the sale of any such liquors to be used as a beverage ; and any violation of either of said prohibi- tions shall be punished by fine and imprisonment. The General Assembly shall pro- vide by law for the condemnation and destruction of all spurious, poisonous, or drugged liquors herein prohibited. •Sec. 6. The General Assembly shall enact laws in order to prevent the destruction of, and to keep in good preservation, the forests upon the lands of the State, or upon lands of the public domain, the control of which shall be conferred by Congress upon the State. Sec. 7. The General Assembly may provide that the increase in the value of pri- vate lands, caused by the planting of hedges, orchards, and forests thereon, shall not, for a limited time, to be fixed by law, be taken into account in assessing such lands for taxation. Sec. 8. The General Assembly shall provide for the publication of the laws passed at each session thereof ; and, until the year 1900, they shall cause to be published in Spanish and German a sufficient number of copies of said laws to supply that portion of the inhabitants of the State who speak those languages, and who may be unable to read and understand the English language. Article XIX. Future Amendments. Section 1. The General Assembly may, at any time, by a vote of two-thirds of the members elected to each House, recommend to the electors of the State to vote at the next general election for or against a convention to revise, alter, and amend this Con- stitution ; and if a majority of those voting on the question shall declare in favor of such convention, the General Assembly shall, at its next session, provide for the calling thereof. The number of members of the convention shall be twice that of the Senate, and they shall be elected in the same manner, at the same places, and in the same districts. The General Assembly shall, in the act calling the convention, designate the day, hour, and place of its meeting ; fix the pay of its members and officers, and provide for the payment of the same, together with the necessary expenses of the convention. Before proceeding the members shall take an oath to support the Consti- tution of the United States and of the State of Colorado, and to faithfully discharge their duties as members of the convention. The qualifications of members shall be the same as of members of the Senate, and vacancies occurring shall be filled in tlie 448 APPENDIX TO PART I. manner provided for filling vacancies in the General Assembly. Said convention shall meet within three months after such election, and prepare such revisions, alterations, or amendments to the Constitution as may be deemed necessary, which shall be sub- mitted to electors for their ratification or rejection at an election appointed by the convention for that purpose, not less than two nor more than six months after the ad- journment thereof ; and unless so submitted and approved by a majority of the electors voting at the election, no such revision, alteration, or amendment shall take effect. Sec. 2. Any amendment or amendments to this Constitution may be proposed in either House of the General Assembly, and if the same shall be voted for by two- thirds of all the members elected to each House, such proposed amendments, together with the ayes and noes of each Honse thereon, shall be entered in full on their respec- tive journals ; and the Secretary of State shall ca^e the said amendment or amend- ments to be published in full in at least one newspaper in each county, (if such there be,) for three months previous to the ne.xt general election for members to the General Assembly ; and at said election the said amendment or amendments shall be submitted to the qualified electors of the State for their approval or rejection, and such as are approved by a majority of those voting thereon shall become part of this Constitution ; but the General Assembly shall have no power to propose amendments to more than one article of this Constitution at the same session. [The instrument closes with a long " Schedule," of the sort which was appended to the Pennsylvania Constitution of 1 790, providing for certain details, " that no inconve- nience may arise by reason of the change in the form of government."] — 2 Poore's Constitutions, 219. PASSAGES FROM THE CONSTITUTION OP COLOMBIA.! Title V. Art. 59. — The President and the ministers, and in each particular trans- action the President with the ministers of the respective departments, shall constitute the government. Title VII. Art. 81. — No legislative Act shall become a law unless : I. It shall have passed three readings and been adopted in each Honse, on three different days, by a majority of the members thereof. II. It shall have obtained the approval of the government. 76. Art. 83. — The government, by means of its ministers, may take part in legis- lative debates. lb. Art. 84. — The judges of the Supreme Court shall be entitled to be heard in the discussion of bills relating to civil matters and judicial procedure. lb. Art. 8.5. — After a bill shall have passed both Houses, it shall be sent to the government, and if approved by the government, it shall be promulgated as a law. [The President may return a bill with objections.] lb. Art. 88. — The President of the Republic shall approve, without power to pre- sent new objections, any bill which shall have been reconsidered and adopted by two- thirds of the members in each House. lb. Art. 90 — If a bill should be objected to on the ground that it is unconstitu- tional, it shall be excepted from the provision of Article 88. In this case, if the Honse insist, the bill shall pass to the Supreme Court, in order that this body, within six days, may decide upon its constitutionality. If the decision of the court sliould be favorable to the bill, the President shall give it his approval. If the decision should he unfavorable, the bill shall fail and be removed from the calendar. Title XV. Art. 151. — The Supreme Court shall exercise the following functions . . . IV. To decide finally, upon the constitutionality of legislative Acts, which may have been objected to by the government as unconstitutional. 1 From the Supplement (January, 1893) to the Annals of the American Academy of Political and Social Science, in Philadelphia. Translated by Professor Bernard Moses. — Ed. CASES ON CONSTITUTIONAL LAW. CASES ON CONSTITUTIONAL LAW. WITS NOTES. PART TWO. BT JAMES BRADLEY THAYER, LL.D. WELD PROFESSOR OF LAW AT HARVARD UNIVERSITY. CAMBRIDGE: CHARLES W. SEVER. 1894. Copyright, 1894, By James Bkadley Thatee. Univeesitt Pkess : John Wilson and Son, Cambridge, U. S. A. TABLE OF SUBJECTS. CHAPTER IV. Pages Citizenship. — Fundamental Civil and Political Rights. — The Later Amendments to the Constitdtion of the United States 449-692 CHAPTER V. Unclassified Legislative Power. — The so-called Police Power 693-944 TABLE OF CASES. In this Table each case which has the names of two parties is entered twice ; that is to say, under both names, — except where those are identical. Ejectment cases are entered a third time, under the name of the fictitious party. As regards cases in the notes, mere citar- tions are generally .omitted. A. Page Page Chrisman v. Brookhaven 576 n. Ableman v. Booth 479 n. Christensen, Crowley y. 798 Alabama v. Nashv. &c. Ry. Co. 797 n. Civil Eights Cases 554 Smith V. 797 Com. <3. Alger 693 Alger, Com. v. 693 V. Carter 836 Allen, Hewlett v. 944 n. V. Gilbert 890 Amoskeag Co., Head v. 760 V. Ham. Man. Co. 917 Anderson, Terry v. 672 V. Perry 918 Connolly, Barbier v. 623 Converse, In re 681 B. Corfield v. Coryell 453 Coryell, Corfield v. 453 Ball, Kimmish v. 757 n. Cresc. City, &c. Co., Butchers' Un., Baltimore, Mayor, &c. of, Barron v. 449 &c. Co. V. 537 V. Kadecke 864 Crowley v. Christensen 798 Barbier v. Connolly 62.3 Barron v. Mayor, &c of Bait. 449 Bartemeyer v. Iowa 532 D. Beer Co. v. Mass. 757 Bertholf v. O'Reilly 725 Davidson v. N. 0. 610 Birm. Min. R. R. Co. v. Parsons 850 Den d. Murray v. Hohoken, &c. Co. 600 Bloomington, Gridley v. 828 Dering, State v. 869 Booth, Ableman v. 479 n. Dewitt, U. S. i;. 735 Boston, Roberts v. 576 n. Divine, State v. 851 Braceville Coal Co. v. People 923 Duprg, In re 732 Brevoort v. Grace 882 Bristol, N. Y. E. E. Co. v. 687 E. Brookhaven, Chrisman v. 576 n. Brummell, Lehew v. 574 Eilenbecker v. Plym. Co. 673 Budd V. N. Y. 671, 804 Elk V. Wilklns 587 Butchers' Un., &c. Co. v. Cresc. City, Ewer, People i'. 837 &c. Co. 537 Caldwell v, Texas 683 California, Hurtado v. 616 Cannon, People v. 841 Carleton w. Rugg 680 n. Carter, Com. v. 836 Carthage v. Frederick 831 Charlotte, &c. E. E. Co. v. Gibbes 684 Cherokee Trust Funds 591 n. Chicago V. O'Brien 830 n. Chic, &c. Ey. Co. v. Minnesota 660 F. Ferguson v. Gies 573 n. Frederick, Carthage v. 831 Fueliring, Reinken v. 832 G. Georgia, Worcester v. 583 Gibbes, Charlotte, &c. E. R. Co. v. 684 Gibbons v. Ogden 730 VIU TABLE OF CASES. Page 673 n, 890 825 882 876 n. 828 Gies, Ferguson v. Gilbert, Com. v. Goddard, Pet'r Grace, Brevoort v. Gray, Xrageser v. Gridley v, Bloomington H. Hamilton Man. Co., Com. v. 917 Happersett, JVlinor v. 459 Hastings v. Hang 821 n. Haug, Hastings v. 824 n. Head Money Cases 758 Heinemann, State V. 876 n. Henderson v. Major of N. Y. 738 Hewlett V. Allen 944 Hoagland, Wurts i: , 768 Hoboken, &c. Co., Den d. Murray v. 600 Hodges, £x parte 859 Holden v. James 882 n. HoUiday, U. S. v. 731 Hopkins, Wo Lee v. 774 Yick Wo V. 532 n., 774 Hurtado v. California 616 Husen, K. R. Co. v. 753 niinois, Munn v. Iowa, Bartemeyer v. 743 532 J. Jacksonville, Toledo, &c. By. Co. v. 856 Jacobs, In the Matter of 627 James, Holden B. 882 n. Jewett, Wilkins v. 892 Justices, Opinion of 901, 905 K. Kagama, U. S. v. Kansas, Mugler v. V. Ziebold Kidd V. Pearson Kimmish v. Ball King, People r. 591 782 782 796 n. 757 n. 568 L. Lackey, Oh. & M. Ry. Co. )•. 854 Lake Shore, &c. Ry. Co., Morley v. 683 Lawton v'. Steele 817 Leader v. Moxon 673 n. Lee Sing, In re 861 Lehew v. Brummell 574 Lemmon v. The People 496 Lent V. Tillson 654 Lewis, State u. 824 n. Page License Tax Cases 737 n. Look Tin Sing, In re 578 Looniis, State v. 929 M. Mackey, Mo. Pac. Ry. Co. v. 646 Mann, State v. 473 Marx, People v. 632 Maryland, Singer v. 874 Mass., Beer Co. v. 767 MercliMit,-Spencer D. 647 Miles, West Chester, &c. Co. v. 578 n. Minnesota, Chic, &c. By. Co. 660 Minor v. Happersett 459 Missouri Pac. Ry. Co. v. Mackey 646 Morley v. Lake Shore, &c. Ky. Co. 683 Moxon, Leader v. 673 n. Mugler V. Kansas 782 Munn V. 111. 743 Murray, Den. d. v. Hoboken, &c. Co. 600 N. Nashyille, &c. By. v. Ala. 797 n. Newell, State v. 591 n. New Orleans, Davidsott v. 610 York, Budd v. 671, 804 Mayor of, Henderson v. .738 V. Walsh 804 R. R. Co. V. Bristol 687 Nye, Turner v. 893 O. O'Brien, Chicago v. 830 Ogden, Gibbons v. 730 Ohio & M. Ry. Co. r. Lackey 854 Opinion of Justices 901, 905 O'Reilly, Bertholf w. 725 P. Parkman, Rice v. 880 Parsons, Birm. Min. Co. v. 850 Patterson v. Ky. 737 n. Pearson, Kidd v. 796 n. Pease, Starr ;;. 889 Pembina Mining, &c. Co. v. Pa. 468 Pennoyer, State v. 876 n. Pennsylvania, Pembina Mining, &c. Co. V. 468 Powell V. 637 People, Braceville Coal Co. w. 923 f. Cannon 841 0. Ewer 837 V. King 568 Lemmon v. 496 .7. Marx 632 V. Phippin 876 n. Ramsev v. 928.n. u. Toynbee 715 TABLE OF CASES. IX Page People, Wynehamer w. 715 Perry, Cora. v. 918 Phippin, People v. 876 n. Plymouth Co., Eilenbecker v. 673 Powell V. Pa. 637 K. Radecke, Mayor, &c. of Bait. v. 864 Railroad Co. ik Husen 753 Ramsey «. People 928 n. Rapier, In re 732 Reinken u. Fuehring 832 Rhodes, U. S. v. 506 Rice V. Parkman 880 Roberts y. Boston 576 n. Eoby V. Smitli 457 Rugg, Carleton v. 680 n. Rutland & Burl. R R. Co., Thorpe v. 706 Sandford, Dred Scott v. Scott, Dred, v. Sandford Sharp y. Wakefield Sing, In re Look Tin Singer v. Maryland Slaughter-House Cases Smith V. Ala. Roby V. Spencer v. Merchant Starr v. Pease State V. Dering V, Divine V. Heinemann V. Lewis V. Loomis V. Mann V. Newell V. Pennoyer V. Toledo V. Yopp Strauder v. West Va. 480 480 673 n., 804 n 578 874 516 797 457 647 851 876 n. 824 n. 929 473 591 n. 876 n. 912 867 n. 543 Terry v. Anderson Texas, Caldwell v. Thorpe v. R. & B. R. R. Co. Tillson, Lent- a. Toledo, &c. Ry. Co. v. Jacksonville Toledo, State v. Toynbee, People ii. Trageser v. Gray Turner v. Nye u. United States v. Dewitt V. HoUiday V. Kagama V. Rhodes Virginia, Ex parte Page 672 683 706 654 856 912 715 876 n. 893 736 731 591 506 548 W. Wakefield, Sharp v. 673 n., 804 n. West Chester, &c. R. R. Co. v. Miles 578 n. West Va., Strauder v. 543 Wilkins, Elk v. 587 V. Jewett 892 Wo Lee v. Hopkins 774 Worcester v. Georgia 583 Wurts V. Hoagland 768 Wynehamer v. The People 715 Y. Yarbrough, Ex parte 551 Yick Wo V. Hopkins 582 n, 774, 868 n. Yopp, State v. 867 n. Z. Ziebold, Kansas v. 782 PART II. CHAPTER IV. CITIZENSHIP.— FUNDAMENTAL CIVIL AND POLITICAL EIGHTS.— THE LATER AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES. BAREON V. MAYOR, etc. OF BALTIMORE. Supreme Court of the United 8^te8. 1833. [7 Pet. 243; 10 Curtis's Deciiions, 464.] Error to the Court of Appeals of the western shore of the State of Maryland. Case by the plaintiff in error against the city of Baltimore, to recover damages for injuries to the wharf-property of the plaintiff, arising from the acts of the corporation. The city, in the asserted exercise of its corporate authority over the harbor, the paving of streets, and regulating grades for paving, ancj over the health of Baltimore, diverted from their accustomed and nat- ural course, certain streams of water, which flow from the range of hills bordering the city, and diverted them, so that they made deposits of sand and gravel near the plaintiff's wharf, and thereby rendered the water shallow, and prevented the access of vessels. The decision of Baltimore County Court was against the defendants, and a verdict for , $4,500 was rendered for the plaintiff. The Court of Appeals reversed the judgment of Baltimore Count}' Court, and did not remand the case to that court for a further trial. From this judgment the defendant in the Court of Appeals prosecuted a writ of error to this court. Mayer, for the plaintiffs. Taney and Scott, contra, were stopped by the court. Marshail, C. J., delivered the opinion of the court. The judgment brought up by this writ of error having been rendered by the court of a State, this tribunal can exercise no jurisdiction over it, unless it be shown to come within the provisions of the 25th section of the Judicial Act. 1 Stats, at Large, 85. The plaintiff in error contends that it comes within that clause in the vol.. I. —29 450 ^ BAKEON V. MAYOR, ETC. OF BALTIMORE. [CHAP. IV. fifth amendment to the Constitution, which inhibits the taking of pri- vate property for public use, without just compensation. He insists that this amendment, being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a State, as well as that of the United States. If this proposition be untrue, the court can take no jurisdiction of the cause. The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for tiiemselves, for their own government, and not for the government of the individual States. Each State establisiied a Constitu- tion for itself, and, in that Constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers the^- con- ferred on this government were to be exercised by itself; and the limi- •tations on power, if expressed in general terms, are naturally, and, we think, necessarily applicable to the government created b3- the insti'u- ^ ment. They are hmitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for differ- ent purposes. If these propositions be correct, the fifth amendment must be nndei* stood as restraining the power of the general government, not as appli- cable to the States. In their several constitutions they have imposed such restrictions on their respective governments as their own wisdom suggested ; such as they deemed most proper for themselves. It is a subject on which they judge exclusivelj-, and with which others interfere no further than thfi.y are supposed to have a common interest. The counsel for the plaintiff in eiTor insists that the Constitution was intended to secin-e the people, of tlie several States against the undue exercise of power by their respective State governments ; as well as against that which might be attempted by their general government. In support of this argument he relies on the inhibitions contained in the 10th section of the 1st airticle. We think that section affords a strong if not a eonclinsive argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously in- tended for the exclusive pmrpose of restraining the exercise of power by the departments of the general government. Some of them use lan- guage applicable only to Congress; others are expressed, in general terms. The third clause, fbr example, declares that "no bill of attain- der or ex post facto law shall be passed." No language can be more general ; yet the demonstration is complete that it applies solely to the government of the United Staites. In addition to the general arguments furnished by the instrument itself, some of which have been a'h'eady suggested, tlie succeeding section^ the avowed pai'pose of which is to CHAP. IV.] BARRON V. MAYOR, ETC. OF BALTIMORE. 451 restrain State legislation, contains in terms the very prohibition. It declares that " no State shall pass any bill of attainder or ex post facto law." This provision, then, of the &th section, however comprehensive its language, contains no restriction on State legislation. The 9th section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the geneial government, the 10th proceeds to enumerate thosft which were to oper- ate on the State legislatures. These restrictions are brought together in the same section, and are by express words applied to the States. " No State shall enter into any treaty," &c. Perceiving that in a con- stitution framed by the people of the United States for the government of all, no limitation of the action of government on the people would apply to the State government, unlefes expressed in terms ; the restric- tions contained in the 10th section are in direct words so applied to the States. It is worthy of remark, too, that these inhibitions generally restrain State legislation on subjects intrusted to the general government, or in which the people of all the States feel an interest. A State is forbidden to enter into any treaty, alliance, or confeder- ation. If these compacts are with foreign nations, they interfere witli the treaty-making power, which is conferred entirely on the general gov- ernment ; if witli each Other, for political purposes, they can scarcel3' fail to interfere with the general purpose and intent of the Constitution. To grant letters of marque and reprisal, would lead directly to war ; the power of declaring which is expressly given to Congress. To coin mone}' is also the exercise of a power conferred on Congress. It would be tedious to recapitulate the several limitations on the powers of the States which are contained in this section. Thej' will be found, gen- erall)', to restrain State legislation on subjects intrusted to the govern- ment of the Union, in which the citizens Of all the States are interested. In these alone were the whole people concerned. The question of their application to States is not left to construction. It is averred in posi- tive words. If the original Constitution, in the 9th and 10th sections of the 1st J article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the general government, and on those of the States ; if in every inhibition intended to act on State power, words are employed which directl3' express that intent, — some strong reason must be assigned for departing from this safe and judi- cious course in framing the amendments, before that departure can be assumed. We search in vain for that reasbn. Had the people of the several States, or any of them, required changes in their constitutions; had they required additional safeguards to lib- erty from the apprehended encroachments of their particular govern- ments ; the remedy was in their own hands, arid would have been applied bj' themselves. A convention would have been assembled by 452 BAEEON V. MA YOB, ETC. OF BALTIMOEE. [CHAP. IV. the discontented State, and the required improvements would liave been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two thirds of Congress, and the assent of three fourths of their sister States, could never have occurred to any human being as a mode of doing that which might be effected by the State it- self. Had the framers of these amendments intended them to be limita- tions on the powers of the State governments, thej' would hiive imitated the framers of the original Constitution, and have expressed that inten- tion. Had Congress engaged in the extraordinary occupation of im- proving the constitutions of the several States by affording the people additional protection from the exercise of power by their own govern- ments in matters which concerned themselves alone, the3- would have declared this purpose in plain and intelligible language. _, But it is universallj- understood, it is a part of the historj' of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensivel3- entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention bj' which the Constitution was adopted, amendments to guard against the abuse of power were recom- mended. These amendments demanded security against the appre- hended encroachments of the general government, not against those of the local governments. In compliance with a sentiment thus generall)' expressed to quiet fears thus extensively entertained, amendments were proposed bj' the required majority in Congress, and adopted b}' the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them. We are of opinion that the provision in the fifth amendment to the Constitution, declaring that private propertj- shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the States. We are therefore pf opinion, that there is no repugnancj- between the several Acts of tlie General Assembl}- of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that State, and the Constitution of the United States. This court, therefore, has no jurisdiction of the cause ; and it is dismissed. CHAP. IV.] CORFIELD V. CORYELL. 453 CORFIELD V. CORYELL Circuit Court of the United States for Pennsylvania. 1825. [4 Wash. C. C. 371.] This was an action of trespass for seizing, taking, and carrying awaj', and converting to the defendant's use, a certain vessel, the property of the plaintiff, called the " Hiram." Plea not guilty, with leave to justify. The ease, as proved at the trial, was as follows : . . . [Here it is stated that the plaintiff was owner of the " Hiram," a vessel licensed as a coaster, which, being let to one Keene, proceeded from Philadelphia in May, 1821, to certain oyster beds in the waters of New Jersey, and was there seized while dredging for oysters ; and was condemned and sold by judicial proceedings under the laws of New Jersey. The defendant acted as " prize master" in the seizure.] Washington, J., after stating to the jury the great importance of many of the questions involved in this cause, recommended to them to find for the plaintiff, and assess the damages ; subject to the opinion of the court upon the law argument of the facts in the cause. "Verdict for $560, subject, &c. This case was argued, on the points of law agreed by the counsel to arise on the facts, at the October term, 1824, and was taken under advisement until April term, 1825, when the following opinion was delivered : Washington, J., delivered the opinion of the court. The points reserved present, for the consideration of the court, many interesting and difficult questions, which will be examined in the shape of objec- tions made by the plaintiff's counsel to the seizure of the " Hiram," and the proceedings of the magistrates of Cumberland County, upon whose sentence the defendant rests his justification of the alleged trespass. These objections are, — First. That the Act of the Legislature of New Jersey of the 9th of June, 1820, under which this vessel, found engaged in taking oysters in Morris River Cove by means of dredges, was seized, condemned, and sold, is repugnant to the Constitution of the United States in the following particulars : 1. To the eighth section of the first article, which grants to Congress the power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. 2. To the second section of the fourth article, which declares, that the citizens of each State shall be entitled to all privileges and immuni- ties of citizens in the several States. 3. To the second section of the third article, which declares, that the judicial power of the United States should extend to all cases of admi- ralty and maritime jurisdiction. 454 QOJiflELD V. CORYEU. [CHAI". IV. In case the Act should be considered as not being exposed to these constitutional objections, it is then insisted, Second!}'. That the locus in quo was not within the territorial limits of New Jerse}-. But if it was, then Thirdl}'. It was not within the jurisdiction of the magistrates pf Cumberland Count)-. Fourthl}'. We have to consider the objection made by the defendant's counsel to the form of this action. The first section pf the Act of New Jersey declares, that, from and after the 1st of May, till the 1st of September in ever)' year, no person shall rake on any oyster bed in this State, or gather anj' oysters on any banks or beds within tlie same, under a penalty of $10. Second section. No person residing in, or out of this State, shall, at any time, dredge for oysters in any of the rivers, bays, or waters of the State, under the penalty of $50, The third section prescribes the manner of proceeding, in cases of violations of the preceding secitions. The two next sections have nothing to do with the present case. The sixth section enacts, that it shall not be lawful for any person, who is not, at the time, an actual inhabitant and resident of this State, to gather oysters in any of the rivers, bajs, or waters in this State, on board of any vessel, not wholly owned b)- some person, inhabitant of, or actually residing in this State ; and every person so offending, shall forfeit $10, and shall also forfeit the vessel employed in the commission of such offence, with all the oysters, rakes, &c., belonging to the same. The seventh section provides, that it shall be lawful for any person to seize and secure such vessel, and to give information to two justices of the county where such seizure shall be made, who are required to meet for the trial of the said case, and to determine the same ; and in case of condemnation, to order the said vessel, &c. to be sold. The first question then is, whether this Act, or either section of it, is repugnant to the power granted to Congress to regulate commerce? . . . 2. Tlie next question is, whether this Act infringes that section of the Constitution which declares that " the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States " ? Tlie inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expres- sions to those privileges and immunities which are, in their nature, fundamental ; which belong, of right, to the citizens of all free govern- ments ; and which have, at all times, been enjo3ed b)' the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enu- merate. They may, however, be all comprehended under the following general heads : protection by the government ; the enjojment of life and liberty, with the right to acquire and possess property of every CHAP. IV.J COEFIELD V. COKYELL. 455 kiiifl, and to pursue and obtain happiness and safety; subject never- theless to such lesti-aiuts as the governnieut may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise ; to claim the benefit of the writ of habeas corpus ; to institute and maintain actions of any kind ill the courts of the State ; to take, hold and dispose of property, either real or personal ; and an exemption from higher taxes or impositions than are paid by the other citizens of the State ; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental ; to which ma}' be added, the elective franchise, as regu- lated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be men- tioned, are, strictly speaking, privileges and immunities, and the enjoy- ment of them by the citizens of each State, in every other State, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) " the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union." But we cannot accede to the proposition which was insisted on by the counsel, that, under this provision of the Constitution, the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any other particular State, merely upon the ground that they are enjoyed by those citizens ; much less, that in regulating the use of the common property of the citizens of such State, the legislature is bound to extend to the citizens of all the other States the same advantages as are secured to their own citizens. A several fishery, either as the right to it respects running fish, or such as are stationar}-, such as oysters, clams, and the like, is as much the property of the individual to whom it belongs, as dry land, or land covered by water ; and is equally protected by the laws of the State against the aggressions of others, whether citizens or strangers. "Where those private rights do not exist to the exclusion of the common right, that of fishing belongs to all the citizens or subjects of the State. It is the property of all ; to be enjoyed by them in subordination to the laws which regulate its use. They may be considered as tenants in common of this property ; and they are so exclusively entitled to the use of it, that it cannot be enjoyed by others without the tacit consent, or the express permission of the sovereign who has the power to regulate its use. This power in the Legislature of New Jersey to exclude the citizens of the other States from a participation in the right of taking oysters within the waters of that State, was denied bj- the plaintiff's counsel, upon principles of public law, independent of the provision of the Con- stitution which we are considering, upon the ground that they are incapable of being appropriated until they are caught. This argu- 456 COKFIELD V. COKYELL. [CHAP. IV. ment is unsupported, we think, by authority. Rutherfoth, b. 1, ch. 5, sect. 4 and 5, who quotes Grotius as his authority, lays it down, that, although wild beasts, birds, and fishes, which have not been caught, have never in fact been appropriated, so as to separate them from the common stock to which all men are equally entitled, yet where the exclusive right in the water and soil which a person has occasion to use in taking them is vested in others, no other person can claim the liberty of hunting, fishing, or fowling, on lands, or waters, which are so appropriated. " The sovereign," says Grotius, b. 2, ch. 2, sect. 5, " who has dominion over the land,^or waters, in which the fish are, may prohibit foreigners [bj* which expression we understand him to mean others than subjects or citizens of the State] from taking them." That this exclusive right of taking oysters in the waters of Nevr Jersey has never been ceded by that State, in express terms, to the United States, is admitted by the counsel for the plaintiff; and having shown, as we think we have, that this right is a right of property, vested either in certain individuals, or in the State, for the use of the citizens thereof; it would, in our opinion, be going quite too far to construe the grant of privileges and immunities of citizens, as amount- ing to a grant of a co-tenancy in the common property of the State, to the citizens of all the other States. Such a construction would, in many instances, be productive of the most serious public inconveni- ence and injury, particularly, in regard to those kinds of fish, which, by being exposed to too general use, may be exhausted. The oyster beds belonging to a State maj- be abundantly sufficient for the use of the citizens of that State, but might be totally exhausted and destroyed if the legislature could not so regulate the use of them as to exclude the citizens of the other States from taking them, except under such limitations and restrictions as the laws ma}- prescribe. . . . Fourthly. . . . The objections to this form of action are fatal. . . . The " Hiram " then, having been lawfully in possession of Keene, under a contract of hiring for a month, which had not expired at the time the alleged trespass was committed, the action cannot be supported. Let judgment be entered for the defendant. Charles J. Ingersoll and J. It. Ingersoll, for plaintifl!s. M'Bvaine and Condy, for defendants.* 1 And so McCreadi) v. Va., 94 U. S. 391. See also Cmner v. Elliott, 18 How. 591; Paulv. Va., 8 Wall. 168; Ward v. Md., 12 Wall. 418; Slaughter House Cases, 16 Wall. 36; Lemmon v. People, 20 N. Y. 502, 607. — Ed. CHAP. IV.J EOBT V. SMITH ET AL. 457 ROBY V. SMITH et ai. Supreme Court of Indiana. 1891. [131 Ind. 342.] From the Steuben Circuit Court. D. H. JBest, M A. Bratton, and W. F. Mliott for appellant. J. A. Woodhull and W. A. Brown for appellees. Miller, J. This action was brought by the appellant, Frank S. Eoby, trustee, to foreclose a mortgage on real estate situate in Steuben County, in this State. . . . Demurrers filed by each of the defendants were sustained to the complaint, and final judgment rendered on de- murrer for the defendants. The ruling upon the demurrer is the only question in the record. The correctness of this ruling depends upon the validity and construction to be given to section 2988, R. S. 1881, in force since Maj- 3i, 1879, which is as follows : " It shall be unlawful for any^ person, association, or cor- poration to nominate or appoint any person a trustee in any deed, mortgage, or other instrument in writing (except wills), for any purpose whatever, who shall not be at the time a bona fide resident of the State of Indiana ; and it shall be unlawful for any person who is not a bona fide resident of the State to act as such trustee. And if anj' person, after his appointment as such trustee, shall remove from the State, then his rights, powers, and duties as such trustee shall cease, and the proper court shall appoint his successor, pursuant to the provisions of the Act to which this is supplemental." The constitutionality of this Act is vigorously assailed by counsel for the appellant. It is claimed that this Act limits the constitutional rights of citizens of this Stale to select and appoint their own agents in the control and management of their own property, which is one of the inherent and inalienable rights of a citizen. The facts of this case do not require us to enter into a discussion of this question. The contract was entered into in the State of Michigan, by and between citizens of that State, to secure an indebtedness expressly payable in that State. It was to all intents and purposes a Michigan contract, except that, the land being situate within this State, the mort- gage, which is a qualified conveyance of real estate, is subject to the law of the State, so far as it afllects the validity and enforcement Of the lien. 1 Jones, Mortg. § 662. The rights of the citizens of this State to appoint non-resident trustees are not involved in this case. Another question involved in the consideration of the constitutionality of the Act under consideration may be excluded from the present dis- cussion : that is, the right. of a non-resident trustee to prosecute in the courts of this State actions affecting the trust property. We infer from the last clause of the section that it was the purpose of the legislature in enacting this statute to compel trustees to reside within the State in order to bring them within the process and subject to the control of the 458 EOBY V. SMITH ET AL. [CHAP. IV. State courts. In the present action the suit was brought by a resident trustee, who owed his appointment to the order of the court, and not to the act of the parties.- We have remaining for determination the question, does or does not this Act, as applied to the facts disclosed in the record, impair the priv- ileges and immunities of citizens of another State, or of the United States, as guaranteed in article 4, § 2, and the Fourteenth Amendment of the Coustitution of the United States ? The constitutionality of this Act has never been passed upon by this court, although the question seems more than once to have been in the mind of the court. In holding that this Act did not apply to trustees appointed prior to the passage of the Act, the coui't iu Thompson v. Edwards, 85 Ind. 414, said : " Waiving all discussions as to the power of the legislature to enact such a statute as applicable to trustees to be thereafter appointed, it is mani- fest," etc. In Bryant v. Richardson, 126 Ind. 145-153, it is said that it " may well be doubted " if that portion of this statute which applies to natural persons, and seeks to prohibit them from naming a person who is a non-resident of the State to act as a trustee for them, is valid. In Farmers' Loan & Trust Co. v. Chicago & A. By. Co., 27 Fed. Bep. 146, Gresham, J., said of this statute : " It is a statute which denies to residents of other States the right to take and hold in trust, otherwise than by last will and testament, real and personal propertj* in Indiana. The right is asserted to denj- to persons, associations, or cor- porations, within or without the State, power to convey to any person in trust, not a resident of Indiana, real or personal property within the State. This is a plain discrimination against the residents of other States. If Indiana may disqualifj' a resident of another State from acting as trustee in a trust deed or mortgage which conveys real or personal property as securitj- for a debt due to himself alone, or for debts due himself and other creditors, it would seem that the State might prohibit citizens of other States from holding propertj' within tlie State, and to that extent from doing business within tlie State. No State can do the latter. A person ma)-, and frequently does, acquire a property interest hy a conveyance to him in trust. A citizen of the United States cannot be denied the right to take and hold absolutelj' real and 'v^rsonal property in anj- State of the Union, nor can he be denied the right to accept the conveyance of such propertj' in trust for his sole benefit, or for the benefit of himself and others. This right is incident to national citizenship." Section 2, of article 4, of the Constitution oi the United States, declares that " the citizens of each State shall bo entitled to all the privileges and immunities of citizens in the several States." " Attempt will not be made," say the Supreme Court of the United States in Ward v. Maryland, 12 Wall. 418, "to define the words ' privilege and immunities,' or specify the riglits which they are intended to secure and protect, be3'ond what may be necessary to the decision of the case before the court. Beyond doubt, those words are words of very comprehensive meaning ; but it will be sufficient to say CHAP. IV.] MINOR V. HAPPERSETT. 459 that the clause plainly and unmistakably secures and protects the rights of a citizen of one State to pass into any other State of the Union for the purpose of engaging in lawful commerce, trade, or business, without molestation, to acquire personal property, to take and hold real estate." In that case, one of the trustees, at the time of the creation of the trust, was a resident of the State. The resident trustee having died, the action was prosecuted by the surviving and non-resident trustee. The fact that the language above cited was not strictly essential to the de- termination of the case before the court ma^' impair the force of the de- cision as an authority, but it does not detract from the potency of its reasoning. Reluctant as we are to hold a statute regularly enacted by the General Assembly unconstitutional, we cannot avoid the conclusion that the Act under consideration is in conflict, with those provisions of the Constitu- tion of the United States which guarantee to the citizens of each State, and of the United States, all the privileges and immunities of citizens of the several States. The judgment is reversed, with costs, and cause remanded for further proceedings in accordance with this opinion. Elliott, C. J., did not sit, and took no part in the decision of this case. In Minor v. Happersett, 21 Wall. 162 (1874), on error to the Supreme Court of Missouri, it was declared by the Supreme Court of the United States (Waits, C. J.) that the Fourteenth Amendment did not secure to women the right of suffrage. "The question is pre- sented," said the court, " in this case, whether, since the adoption of the Fourteenth Amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the Constitution and laws of the State, which confine the right of suffrage to men alone. We might, perhaps, decide the case upon other grounds, but this question is fairly made. From the opinion we find that it was the only one decided in the court below, and it is the only one which has been argued here. The case was undoubtedly brought to this court for the sole purpose of having that question decided by us, and in view of the evident propriety there is of having it settled, so far as it can be by such a decision, we have con- cluded to waive all other considerations, and proceed at once to its f determination. ... " To determine, then, who were citizens ^ of the United States before 1 In the usage of English-speaking people, the word "citizen," in the sense of mem- bership of the State, is quite modern. " The term ' citizen,' " said Mr. Justice Daniel, in a dissenting opinion in Rundle v. Delaware Canal Co., 14 Howard, 80, 97 (1852), " will be found rarely occurring in the writers of English law." The word is, indeed, familiar enough in our older reports, law-books, and general literature as designating the member of a borough. For instance, in R. v. Hanger, i RoUe. 138 (1614-15), the rights of " un cittizen de London," are elaborately considered by Coke, C. J., with many references to the Year Books. " Sont 5 sorts de Citizens," he says, etc. So Black- stone (1 Com. 174) : "As for the [parliamentary] electors of citizens and burgesses. 460 MINOR V. HAPPEKSETT. [CHAP. IV. the adoption of the amendment it is necessary to ascertain what per- sons origiaally associated themselves together to form the nation, and what were afterwards admitted to membership. " Looking at the Constitution itself, we find that it was ordained and established by ' the people of the United States ' (Preamble, 1 Stat, at Large, 10) ; and then going further back, we find that these were the people of the several States that had before dissolved the political bauds which connected them with Great Britain, and assumed a separate and equal station among the powers of the earth (Declaration of Inde- pendence, 1 Stat, at Large, 1), and that hadj)y Articles of Confederation and Perpetual Union, in which thej- took the name of 'the United States of America,' entered into a firm league of friendship with each other for their common defence, the security of their liberties and their mutual and general welfare, binding themselves to assist each other against all force offered to or attack made upon them, or anj' of them, on account of religion, sovereignty, trade, or any other pretence what- ever. Articles of Confederation, § 3 ; 1 Stat, at Large, 4. " Whoever, then, was one of the people of either of these States when these are supposed to be the mercantile part or trading interest of the kingdom." And in Shakespeare (As You Like It, Act II., sc. 1), when the banished Duke, having proposed to "go and kill us venison," adds, — ** And yet it irks me the poor dappled fools, Being native burghers in this desert city, Should in their own confines," etc., — we hear just afterwards of Jaques moralizing in the forest over a wounded deer, " left and abandoned of his velvet friends " : — " Ay, quoth Jaques, Sweep on, you fat and greasy citizens." The proper English meaning of the term " citizen " imported membership of a bor- ough or local municipal corporation. The usual word for a man's political relation to the monarch or the State was " subject." In France, the corresponding phrase citoyen, eoncitoyen, seems to have long been familiar, in the modern sense of the word "citizen." The word " citizen " is not found in any of our State constitutions before that of Massachusetts (1780); and it was not in the rejected Massachusetts Constitution of 1778. In the Declaration of Independence (1776), we read it once: "He has con- strained our fellow-citizens," etc., and once in the Articles of Confederation (1781). In the treaty with France of 1778, the usual phrase is "subjects," "people," or " inhabitants ; " but " citizens " does occur as applicable to the United States. In the treaty with Great Britain of 1782, it is used in a marked way : " There shall be a . . . peace between his British majesty and the said States, and between the subjects of the one and the citizens of the other." In the Massachusetts Constitution (1780), the word occurs, but more sparingly than would be expected in a similar document now. In the Federal Constitution, prepared in 1787, it is freely used. It seems, then, to have been the events which happened in this country in the eighth and ninth decades of the last century which first brought the word " citizen," in our modern sense of it, into familiar English speech. See Minor v. Happersett, 21 Wall. 162, 166. For interesting indications of a certain perplexity felt in Europe, in 1784, as to our understanding of the term, see 8 Works of Jx)hu Adams, 213. Compare Blackstone, infra, p. 464, note. — Eb. CHAP. IV.] MINOR V. HAPPEESETT. 461 the Constitution of the United States was adopted, became ipso facto a citizen, — a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, conse- quently-, one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain jjersons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were. " Additions might alwaj's be made to the citizenship of the United States in two waj-s, — first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides (Article 2, § 1) that ' no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President' (Article 1, § 8), and that Congress shall have power ' to establish a uniform rule of naturalization.' Thus new citizens may be born or thej^ may be created by naturalization. " The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At com- mon law, with the nomenclature of which the framers of the Constitu- tion were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words ' all children ' are certainl}' as comprehensive, when used in this connection, as ' all per- sons,' and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact, the whole argument of the plaintiffs proceeds upon that idea. " Under the power to adopt a uniform system of naturalization Con- gress, as early as 1790, provided 'that any alien, being a free white person,' might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one 3-ears of age at the time of such natural- ization, should also be considered citizens of the United States, and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be con- sidered as natural-born citizens. 1 Stat, at Large, 103. These provisions ■ thus enacted have, in substance, been retained in all the naturalization laws adopted since. In 1855, however, the last provision was some- what extended, and all persons theretofore born, or thereafter to be born, out of the limits of the jurisdiction of the United States, whose fathers were, or should be at the time of their birth, citizens of the United States, were declared to be citizens also. 10 Stat, at Large, 604. 462 MINOR V. HAPPEESETT. [CHAP. IV. " As early as 1804 it was enacted by Congresa that when any alien who had declared bis intention to become a citizen in the manner pro- vided by law died before he was actually naturalized, his widow and children should be considered as citizens of the United States, and entitled to all rights and privileges as such upon taking the necessarj' oath (2 Stat, at Large, 293) ; and in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws, married, or who should be married, to a citizen of the United States, should be deemed and taken to be a citizen. 10 Stat, at Lai-ge, 604. ... " If the right of suffrage is one of the necessary privileges of a citi- zen of the United States, then the Constitution and laws of Missouri confining it to men are in violation of the Constitution of the United States, as amended, and consequently void. The direct question is, therefore, presented whether all citizens are necessarily voters. . . . " It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizen- ship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was co-extensive with the citizenship of the States at the time of its adoption. If it was, then it maj- with force be argued tliat suffrage was one of the rights whiKjli belonged to citizen- ship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrar}' ma3- with propriety be assumed. " When the Federal Constitution was adopted, all the States, with the exception of Rhode Island and Connecticut, had constitutions of their own. These two continued to act under their charters from the Crown. Upon an examination of those constitutions, we find that in no State were all citizens permitted to vote. Each State determined for itself who should have that power. Thus, in New Hampshire, ' ever}- male inhabitant of each town and parish with town privileges, and places unincorporated in the State, of twenty-one j'ears of age and upwards, excepting paupers and persons excused from paying taxes at their own request,' were its voters ; in Massadiusetts, * everj' male inhabitant of twentj--one years of age and upwards, having a freehold estate within the commonwealth of the annual income of three pounds, or an}' estate of the value of sixty pounds ; ' in Rhode Island, ' such as are admitted free of the compan}- and society ' of the colony ; in Connecticut, such persons as had ' maturity in years, quiet and peaceable behavior, a civil conversation, and forty shillings freehold or forty pounds per- sonal estate,' if so certified by the selectmen ; in New York, ' every male inhabitant of full age who shall have personally resided within one of the counties of the State for six months immediately preceding the day of election, ... if dtcring the time aforesaid he shall have been a freeholder, possessing a freehold of the value of twenty pounds within the county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to the State ; ' in New Jersey, ' all inhabitants ... of full age who are CHAP. IT.J MINOR V. HAPPEESETT. 463 worth fifty pounds, proclamation mone^^, clear estate in the same, and have resided iii the county in which they claim a vote for twelve months immediately preceding the election ; ' in Pennsylvania, ' every freeman of the age of twenty-one years, having resided in the State two years next before the election, and within that time paid a Slate or county tax which shall have been assessed at least six months before the election ; ' in Delaware and Virginia, ' as exercised by law at present ; ' in Maryland, ' all freemen above twentj'-one j-ears of age having a freehold of fifty acres of land in the count}' in which they offer to vote and residing therein, and all freemen liaviug property in the State above the value of thirty pounds current mone^', and having re- sided in the county in which they offer to vote one whole year next preceding the election ; ' in North Carolina, for Senators, ' all freemen of the age of twenty-one years who have been inhabitants of any one county within the State twelve months immediately preceding the day of election, and possessed of a freehold within the same county of flft}' acres of land for six months next before and at the day of election,' and for members of the House of Commons, ' all freemen of the age of twent3'-one years who have been inhabitants in any one county within the State twelve months inimediatelj- preceding the daj' of any election, and shall have paid public taxes ; ' in South Carolina, ' every free white man of the age of twenty-one years, being a citizen of the State and having resided therein two yeai's previous to the daj' of election, and ■who hath a freehold of fl.t'ty acres of land, or a town lot of which he hath been legally seised and possessed at least six months before such elec- tion, or (not having such freehold or town lot) hath been a resident ■within the election district in which he offers to give his vote six months before said election, and hath paid a tax the preceding year of three shillings sterling towards the support of the government ; ' and in Georgia, such ' citizens and inhabitants of the State as shall have attained to the age of twenty-one years, and shall have paid tax for the year next preceding the election, and shall have resided six months within the county.' " In this condition of the law in respect to suffrage in the several States it cannot for a moment be doubted that if it had been intended to make all citizens of the United States voters, the framers of the Con- stitution would not have left it to implication. So im;partaiit a change in the condition of citizenship as it actually existed, if iatended, would have been expressly declared. . . . "The Constitution was submitted to the States for adoption in 1787, and was ratified by nine States in 1788, and finally by the thirteen original States in 1790. Vermont was the fir&t new State admitted to the Union, and it came in under a constitution wliich conferred the riglit of suffrage only upon men of the full age of twenty-one years, having resided in the State for the space of one whole year next before the election, and who were of quiet and peaceable behavior. This was in 1791. The next .year, 1792, Kentucky followed with a constitutiaa 464 NATIVES, ALIENS, CITIZENS. [OHAP. IV. confining the right of suffrage to free male citizens of the age of twentj'- one years, who had resided in the State two 3'ears, or in the count}- in which they offered to vote one year next before the election. Then fol- lowed Tennessee, in 1796, with voters of freemen of the age of tweutj-- one years and upwards, possessing a freehold in the county wherein they may vote, and being inhabitants of the State, or freemen being inhabitants of any one county in the State six months immediately pre- ceding the daj' of election. But we need not particularize further. No new State has ever been admitted to the Union wiiich has conferred the right of suffrage upon women, and this^has never been considered a valid objection to her admission. On the contrary-, as is claimed in the argument, the right of suffrage was withdrawn from women as early as 1807 in the State of New Jersey, without anj- attempt to obtain the interference of the United States to prevent it. Since then the govern- ments of the insurgent States have been reorganized under a require- ment that before their representatives could be admitted to seats in Congress the}- must have adopted new constitutions, republican in form. In no one of these constitutions was suffrage conferred upon women, and j-et the States have all been restored to their original posi- tion as States in the Union. " Besides this, citizenship has not in all cases heen made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, maj', under certain circumstances, vote. The same provision is to be found in the constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas. . . . "Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we Affirm the judgment." NOTE. Natives, Aliens, Citizens. " The first and most obvious division of the people is into aliens and natural-bom subjects. Natural-born subjects are such as are born within the dominions of the crown of England ; that is, within the ligeauce, or, as it is generally called, the allegiance of the king ; and aliens, such as are bom out of it. Allegiance is the tie, or ligament, which binds the subject to the king, In return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in rea.son and the nature of government; the name and the form are derived to us from our Gothic ancestors. Under the feudal system, every owner of lands held them in subjec- tion to some superior or lord, from whom or whose ancestors the tenant or vassal had received them ; and there was a mntnal trust or confidence subsi.sting between the lord and vassal, that the lord should protect the vassal in the enjoyment of the territory he had granted him, and, on the other hand, that the vassal should be faithful to the lord, and defend him against all his enemies. . . . CHAP. IV.] NATIVES, ALIENS, CITIZENS. 465 "But, besides these express engagements, the law also holds that there is an implied, original, and virtual allegiance, owing from every subject to his sovereign, auteeedeutly to any express promise ; and although the subject never swore any faith or allegiance in form, for as the king, by the very descent of the crown, is fully invested with all the rights, and bound to all the duties, of sovereignty, before his coronation ; so tlie subject is bound to his prince by an intrinsic allegiance, before the superinductiou of those outward bonds of oath, homage, and fealty ; which were only instituted to remind the subject of this his previous duty, and for the better securing its performance. . . . " Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the otlier local ; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the Iving's dominions immediately upon their birth. For, immediately upon their birth, they are under the king's protection : at a time, too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude ; which cannot be forfeited, cancelled, or altered by any changa of time, place, or circumstance, nor by anything but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the King of England there as at home, and twenty years hence as well as now. . . . " Local allegiance is such as is due from an alien or stranger born, for'so long time as he continues within the king's dominion and protection : and it ceases the instant such stranger transfers himself from this kingdom to another. . . . " When I say, that an alien is one who is born out of the king's dominions, or alle- giance, this also must be understood with some restrictions. The common law, indeed, stood absolutely so, with only a very few exceptions ; so that a particular Act of Par- liament became necessary after the Restoration, ' for the naturalization of children of his Majesty's English subjects, born in foreign countries during the late troubles.' And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiaaces, or serve two masters, at once. Yet the children of the king's ambassadors born abroad were always held to be natural subjects : for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent ; so, with regard to the son also, he was held (by a kind of postliminium] to be born under the King of England's allegiance, represented by his father the ambassador. . . . " A denizen is an alien born, but who has obtained ex donations regis letters-patent to make him an English subject : a high and incommunicable branch of the royal pre- rogative. A denizen is in a kind of middle state, between an alien and natural-born subject, and partakes of both of them. . . . " Naturalization cannot be performed but by Act of Parliament : for by this an alien is put in exactly the same state as if he had been born in the king's ligeance ; except only that he is incapable, as well as a denizen, of being a member of the Privy Council, or Parliament, holding offices, grants, &c. ... " These are the principal distinctions between aliens, denizens, and natives : distinc- tions, which it hath been frequently endeavored since the commencement of thi-i cen- tury to lay almost totally aside, by one general Naturalization Act for all foreign Protestants. An attempt which was once carried into execution by the statute 7 Ann. c. 5 ; but this, after three years' experience of it, was repealed by the statute 10 Ann. c. 5, except one clause, which was just now mentioned, for naturfilizing the children of English parents born abroad." — 1 Blaokstone's Com. 366. See also Sik Thomas Smith's Com. of England, book i. cc. 16, 22-24 (1565). "I. Natives and Aliens. . . . We have to consider (1) the difference between natives, or members of the State or nation, and foreigners; (2) the difference between citizens and other members of the nation. We need not consider the different grades within the citizen body till we discuss the Constitution in detail. . . . " Nationality may be determined by — " (a) Place of birth (Geburtsort). This is in the main the later mediseval view, and is still the principle of English law, which distinguishes ' natural-born' subjects from VOL. I. — 30 466 NATIVES, ALIENS, CITIZENS. [CHAP. IV. 'aliens.' Birth on an English ship or in an English embassy is equivalent to birth in England. But the principle has been so far modified that the children of English- men, born abroad, become English citizens : and naturalization has become much easier. The law of the United States goes on the same principles. " (6) Domicil. This form of the territorial principle is more iu keeping with modern ideas, because it lays stress not on the casual place of birth, but on the permanent dumicil of the parents, and subsequently of the man himself. But here differences arise, according as settlement is made easy or difficult. This was the principle par- tially followed by Austria in earlier times and by individual German States. But there, too, it was modified by the forms of a personal grant of native rights. " (c) Midway between these comes the Swiss principle of membership in the com- mune, which forms the basis of membership of the Canton (Cantonsbiii-gerrecht), and of the' Swiss confederation {Sckweizerbiirgerrecht). The rights in the commune depend not on place of birth or domicil, but on descent from parents who are citizens of the commune, even though they live outside it. It is not unlike the old Roman municipal law, which was also based on origo from a particular municipium. " (rf) Modern States, generally, recognize nationality as a personal relation, not mainly dependent on place of birth or domicil, but on de-scent from members of the nation and personal reception into its membership. Place of birth and domicil come in to complete the notion. " This, in the main, is the principle for Fiance, Prussia, and the German Empire. This system best corresponds to modern political ideas, which regard the personal relation to the nation as the essential germ of the conception of the State. " But the different systems tend to approach and supplement one another. Descent, birthplace, domicil and naturalization, marriage and legitimation, thus all combine, directly or indirectly, to constitute the qualification for citizenship. . . . " It is quite possible for one person to have the rights of a native (Heimatsrechte) iu two States at once, and modern conditions indeed encourage this. In the rare case of a conflict of duties it may be hard to reconcile them. It is not always a safe principle that the earlier right should take precedence, especially where it is dormant, while the later right is actual. In such cases the first duty, e. g., of military service, is to the country in which a man is living. . . . " In private law the distinction between citizen and alien used to be far more import- ant than now. The spheres of private and public law are now much more sharply dis- tinguished, and hence nationality, which is essentially a political idea, has no place in private law. As a rule natives and aliens are alike regarded as both possessing full rights in private law. . . . " But in the sphere of public law the distinction between citizen and alien remains in full force. The following rights, except in case of special grant, are confined to natives : — " (a) The right of permanent residence in the country. A native cannot be handed over to a foreign State, or banished, without grave political reasons. " (b) The right to the protection of his State, even if he is staying abroad. " (c) The exercise of the franchise and of the rights of a full citizen. " (d) The right to hold a public office. " (e) Sometimes such general political rights as those of association, petition, or free publication. This does not mean that foreigners are absolutely excluded from these rights, but that they only enjoy them on sufferance. "... II. Citizens. The body of full citizens rise above the general mass of the members of a country or nation. Fnll citizenship implies membership in the nation, -but. more than that, it implies complete political rights : it is thus the fullest expres- sion of the relation of the individual to the State. " Its conditions have varied from time to time : in ancient Greece and Rome it de- pended on citizenship in the governing city, in the Middle Ages on freedom ( Volksfrei- heit), and later on the rights of a privileged class, and on landed property. In modern States it has often become almost coextensive with membership in the nation ( Votks- O'nossenschaft). CHAP. IV.] NATIVES, ALIENS, CITIZENS. 467 " The following limitations are now generally recognized : — " 1. Women are excluded (see above, ch. xx.)- " 2. Minora are excluded, ou the ground that the exercise of political rights demands mature judgment. " Some modern States fix the majority for political purposes at a different age from that of private law. There is some reason for fixing it later, for itis easier to judge clearly ou ordinary matters than on politics. In France, England, North America and Italy political and civil majority are both fixed at twenty-one, and in some Germau States also, e.<]., Bavaria; but in Prussia, the German Empire, Spain and Portugal, the qualification for a vote is twenty-five years, in Austria twenty-four. In Switzerland some canton.s fix the political majority earlier than the civil, generally at the comple- tion of the twentieth year. " 3. Various persons are excluded whose civil status has been impaired or lost — e.g., criminals, declared spendthrifts, bankrupts, or persons in receipt of poor-relief. " Many States require further qualifications : — " 4. A certain degree of outward independence, variously defined in different States. In earlier German law the qualification was occupation of land or separate household ('a hearth of one's own'); in recent Germau law independent occupation and active membership in a commune. The former view has prevailed in England aud some States of North America, the latter has found a place in modern German constitutions. It excludes all hired servants, often too the workers in factories, at least the lower class of them, and most journeymen craftsmen. " Other modern States have moved in the direction of universal suffriige, and relaxed or abolished this qualification. Such are the Swiss constitutions since 1830, the consti- tutions of the French Republics of 1848 and 1870; of the French Empire, the North-German Confederation of 1867, the German Empire of 1871, aud the Greek Con- stitution of 1864. The United States are following the same democratic tendency of the age. "5. In some States citizen rights are conditional ou the possession of a certain amount of property. It is quite right to make property an important factor in the distribution of voting power, but it is a violation of the idea of the State to exclude a man from the rights of a citizen on the ground of insufficient property, provided that he is morally and mentally capable of takiug part in public duties, and is in an independent position. If property is interpreted to mean income or earnings, and the limit is put at a modest subsistence, there is no objection to it, but it is then equivalent to the preceding quali- fication. The result is the same In constitutions such as those of the United States, the Bavarian of 1848, and to some extent those of Austria and Prussia, where the franchise depends on payment of direct taxes. " 6. In Christian States, till lately, a profession of Christianity was required. Jews, Mohammedans and others, though tolerated, were excluded from political rights Dur- ing the Middle Ages religion and law, Church and State, were closely associated. Ex- clusion from the religious society meant exclusion from the political. Toleration was the utmost that unbelievers could hope for. Even within the Christian pale dlffereni'e of faith carried with it political consequences. In some countries only Catholics, in others only Protestants, acquired full rights. The peace of Westphalia put Catholics and Protestants, in Germany, on an equality of civil rights, but not for political " The German Confederation of 1815 established political equality for the recognized religious parties in Germany, Catholics, Lutherans, and Calvinists (Reformirten), but left the position of other sects uncertain. "In modern States there is a decided tendency to make the exercise of political lights entirely independent of religious creed. 'This is by no means entirely due to religious indifference. When the American Congress of 1789 forbade the passing of any law establishing a dominant religion, it did not mean that it was indifferent to the power of Christianity, nor did it intend to hinder the State in its duty of supporting ■Christian institutions." . . Bi,dnt8Chli, Theory of the State, Clarendon Press Translation (1885), 196. — Ed. 468 PEMBINA MINING AND MILLING CO. V. PA- [CHAP. IV. In Pembina Mining and Milling Co. v. Pa. 125 U. S. 181 (1887), the question was on the validity of a Pennsylvania statute requiring an annual license fee from a foreign corporation which " does not invest and use its capital in this Commonwealth." In holding it good, Field, J., for the court, said: "The clauses of the Federal Constitution, with which it was urged in the State Supreme Court that the statute conflicts, are the one vesting in Congress the power to regulate foreign and interstate commerce, the one declaring that the citizens of each State are entitled to the privileges and immunities of citizens in the several States, and the one embodied ia the Fourteenth Amendment declaring that no State shall deuj' to any person within its jurisdiction the equal protection of the laws. "1. It is not perceived in what way the statute impinges upon the commercial clause of the Federal Constitution. . . . " 2. Nor does the clause of the Constitution declaring that the ' citi- zens of each State shall be entitled to all privileges and immunities of citizens in tlie several States ' have anj' bearing upon the question of the validity of the license tax in question. Corporations are not citi- zens within the meaning of that clause. This was expressly held in Paul V. Virginia. In that case it appeared that a statute of Virginia, passed in Februaiy, 1866, declared that no insurance company not in- corporated under the laws of the State should carry on business within her limits without previously obtaining a license for that purpose, and that no license should be received b3- the corporation until it had depos- ited with the "treasurer of the State bonds of a designated character and amount, the latter var^'ing according to the extent of the capital em- ployed. No such deposit was required of insurance companies incor- porated by the State for carrying on their business within her limits. A subsequent statute of Virginia made it a penal oflTence for a person to act in the State as an agent of a foreign insurance company without such license. One Samuel Paul, having acted in the State as an agent for a New York insurance companj- without a license, was indicted and convicted in a Circuit Court of Virginia, and sentenced to pay a fine of $50. On error to the Court of Appeals of the State the judgment was affirmed, and to review that judgment the case was brought to this court. Here it was contended, as in the present case, that the statute of Vir- ginia was invalid by reason of its discriminating provisions between her corporations and corporations of other States ; that in this particular it was in conflict with the clause of the Constitution mentioned, that the citizens of each State shall be entitled to all the privileges and immuni- ties of citizens in the several States. But the court answered, that cor- porations are not citizens within the meaning of the clause ; that the term citizens, as used in the clause, applies onl^- to natural persons, members of the body politic owi»g allegiance to the State, not to arti- ficial persons created by the legislature, and possessing only such attributes as the legislature has prescribed; that the privileges and immunities secured to citizens of each State in the several States by the CHAP. IV.] PEMBINA MINING AND MILLING CO. V. PA. 469 clause in question are tliose privileges and immunities which are com- mon to the citizens in the latter States under their Constitution and laws by virtue of their citizenship ; that special privileges enjoyed b^' citizens in their own States are not secured in other States by that provision ; that it was not intended that the laws of one State should thereby have any operation in other States ; that they can have such operatio!! onl^' by the permission, express or implied, of those States ; that special privileges which are conferred must be enjoyed at home, unless the assent of other States to their enjoyment therein be given ; and that a grant of corporate existence was a grant of special privileges to the corporators, enabling them to act for certain specified purposes as a single individual, and exempting them, unless otherwise provided, from individual liability, which could therefore be enjoyed in other States only by their assent. In the subsequent case of Ducat v. Chi- cago, 10 Wall. 410, the court followed this decision, and observed that the power of the State to discriminate between her own domestic cor- porations and those of other States, desirous of transacting business within her jurisdiction, was clearly established by it and the previous case of Augusta v. JEJarle, 13 Pet. 519, and added that 'as to the na- ture or degree of discrimination, it belongs to the State to determine, subject only to such limitations on her sovereignty as may be found in the fundamental law of the Union.' Philadelphia Fire Association v. Mio York, 119 U. S. 110, 120. " 3. The application of the Fourteenth Amendment of the Constitu- tion to the statute imposing the license tax in question is not more apparent than the application of the clause of the Constitution [as] to the rights of citizens of one State to the privileges and immunities of citi- zens in other States. The inhibition of the amendment that no State shall deprive any person within its jurisdiction of the equal protection of the laws was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. Under the designation of person there is no doubt that a private corporation is included. Such corporations are merely associa- tions of individuals united for a special purpose, and permitted to do business under a particular name, and have a succession of members without dissolution. As said by Chief Justice Marshall, 'The great object of a corporation is to bestow the character and properties of individuality on a collective and changing body of men.' Providence Bank v. Billings, 4 Pet. 514, 562. The equal protection of the laws which these bodies may claim is only such as is accorded to similar associations within the jurisdiction of the State. The plaintiff in error is not a corporation within the jurisdiction of Pennsylvania. The office it hires is within such jurisdiction, and on condition that it paj-s the required license tax it can claim the same protection in the use of the office that any other corporation having a similar office may claim. It would then have the equal protection of the law so far as it had anything within the jurisdiction of the State, and the constitutional amendment 470 NOTE ON COKPOEATIONS. [CHAP. IT- requires notliing more. The State is not prohibited from discriminating in the privileges it may grant to foreign coi-poratious as a condition of their doing business or hiring offices within its limits, provided alwaj-s such discrimination does not interfere with any transaction bj- such corporations of interstate or foreign commerce. It is not every corpo- ration, lawful in the State of its creation, that other States may be will- ing to admit within their jtirisdiction or consent that it have offices in them ; such, for example, as a corporation for lotteries. And even where the business of a foreign corporation is not unlawful in other States the latter may wish to limit the niynber of such corporations, or to subject their business to such control as would be in accordance with the policy governing domestic corporations of a similar cliiaraGter. The States maj-, therefore, require for the admission within their limits of the corporations of other States, or of any number of them, such con- ditions as the}' maj' choose, without acting in conflict with the conclud- ing provision of the first section of the Fourteenth Amendment. As to the meaning and extent of that section of the amendment see Harbier \. Connolly, 113 U.S. 27; Soon Jling v. Growley, 113 U.S. 703; Missouri v. Ziewis, 101 U. S. 22, 30 ; Missov/ri Pacific Railway Go. \. Humes, lloU.S. 512; Yich Wo \.Hophins,,\\%'[].%.2,h tions, since as before the Revolution. It is further said in the note in 1 Kent's Commentaries, before referred to: — CHAP. IV.] UNITED STATES V. EHODES. 511 "If a slave born in the United States be manumitted or otherwise lawfully discharged from bondage, or if a black man born in the United States becomes free, he becomes thenceforward a citizen, but under such disabilities as the laws of the several States may deem it expedient to prescribe to persons of color." ~ ■^- In the case of State v. Manuel, supra, it was remarked : — " It has been said that, by the Constitution of the United States, the power of naturalization has been conferred exclusively upon Congress, and therefore it cannot be competent for any State by its municipal reg- ulations to make a citizen. But what is naturalization ? It is the re- moval of the disabilities of alienage. Emancipation is the removal of the incapacity of slavery. The latter depends wholly upon the internal regulations of the State. The former belongs to the government of the United States. It would be dangerous to confound tliem." p. 25. This was a decision of the Supreme Court of North Carolina, made in the year 1836. The opinion was delivered by Judge Gaston. He ■was one of the most able and learned judges this country has produced. The same court, in 1848, Chief Justice Rcffin delivering tiie opinion, referred to the case of State v. Manuel, and said : — " That ease underwent a very laborious investigation by both the Bench and the Bar. The case was brought here by appeal, and was felt to be one of very great importance in principle. It was considered with an anxiety arid care worth}- of the principle involved, and which give it a controlling influence upon all questions of similar nature." State v. Newcomb, 5 Ired. 253. We cannot deny the assent of our judgment to the soundness of the proposition that the emancipation of a native-horn slave by removing the disability of slavery made him a citizen. If these views be correct, the provision in the Act of Congress conferring citizenship was unneces- sar3', and is inoperative. Granting this to be so, it was well, if Con- gress had the power, to insert it, in order to prevent doubts and differ- ences of opinion which might otherwise have existed upon the subject. We are aware that a majority of tlie court, in the case of Scott v. San- ford, arrived at conclusions different from those we have expressed. But in our judgment these points were not before them. They decided that the whole case, including the agreed facts, was open to their exam- ination, and that- Scott was a slave. This central and controlling fact excluded all other questions, and what was said upon them by those of the majority, with whatever learning and ability the argument was con- ducted, is no more binding upon this court as authority than the views of the minority upon the same subjects. Carroll v. Carroll, 16 How. 287. The fact that one is a subject or citizen determines nothing as to his rights as such. They vary in different localities and according to cir- cumstances. Citizenship has no necessary connection with the franchise of voting, eligibility to oiflce, or indeed with any other rights, civil or political. 512 UNITED STATES V. RHODES. [cHAP. IV. Women, minors, and persons non compos are citizens, and not the less so on account of their disabilities. In England, not to advert to tlie various local regulations, the new reform bill gives the right of voting for members of Parliament to about eight hundred thousand persons from whom it was before withheld. There, the subject is wholly within the control of Parliament. Here, until the Thirteenth Amendment was adopted, the power belonged entirely to the States, and they exercised it without question from any quarter, as absolutely as if they were not members of the Union. The first ten amendments to the Constitution, which are in the nature of a bill of rights, apply only to the national government. They were not intended to restrict the power of the States. Narrows v. Mayor, &c., 7 Pet. 247; Withers v. Buckley, 20 How. 84; Murphy V. Feople, 2 Cow. 818. Our attention has been called to several treaties bj' which Indians were made citizens ; to those bj' which Louisiana, Florida, and California were acquired, and to the Act passed in relation to Texas. Allthis was done under the war and treaty making powers of the Constitution, and those which authorize the national government to regulate the territory and other property of the United States, and to admit new States into the Union. American Ins. Oo.v. Canter, 1 Pet. 611 ; Cross \. Harri- son, 16 How. 164 ; 2 Story Const. 158. These powers are not involved in the question before us, and it is not necessary- particularly to consider them. A few remarks, however, in this connection will not be out of place. A treaty is declared bj- the Constitution to be the " law of the land." What is unwarranted or for- bidden bv the Constitution can no more be done in one waj' than in an- other. The authority of the national government is limited, though supreme in the sphere of its operation. As compared with the State governments, the subjects upon which it operates are few in number. Its objects are all national. It is one wholly of delegated powers. The States possess all which they have not surrendered ; the government of the Union onlj- such as the Constitution has given to it, expressly or incidentally, and hy reasonable intendment. Whenever an act of that government is challenged a grant of power must be shown, or the act is void. " The power to make colored persons citizens has been actual!}' exer- cised in repeated and important instances. See the treaty with tlie Choctaws of September 27, 1830, art. 14 ; with the Cherokees of May 20, 1836, art. 12 ; and the treatj' of Guadeloupe Hidalgo, of February 2, 1848, art. 8." Scott v. Sanford, 19 How. 486, opinion of Curtis, J. See, also, the treaty with France of April 30, 1803, hy which Louisiana was acquired, art. 3 ; and the treaty with Spain of the 23d of February, 1819, by which Florida was acquired, art. 3. The article referred to in the treat}' with France and in the treaty with Spain is in the same language. In both the phrase "inhabitants" is used. No discrimination is made against those, in whole or in part, of CHAP. IV.] UNITED STATES V. RHODES. 513 the African race. So in tiie treaty of Guadeloupe Hidalgo (articles 8 and 9), no reference is made to color. . . . This brings us to the examination of the Thirteenth Amendment. It is as follows : — " Article XIII. Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction. " Section 2. Congress shall have power to enforce this article by appropriate legislation." Before the adoption of this amendment, the Constitution, at the close of the enumeration of the powers of Congress, authorized that body — " To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or anj- department or oflflcer thereof." . . . Without any other provision than the first section of the amendment. Congress would have had authority to give full effect to the abolition of slavery thereby decreed. It would have been competent to put in requisition the executive and judicial, as well as the legislative power, with all the energy needful for that purpose. The second section of the amendment was added out of abundant caution. It authorizes Congress to select, from time to time, the means that niight be deemed appropri- ate to the end. It employs a phrase which had been enlightened by well-considered judicial application. Any exercise of legislative power within its limits involves a legislative, and not a judicial question. It is only when the authority given has been clearly exceeded, that the judicial power can be invoked. Its office, then, is to repress and annul the excess ; bej'ond that it is powerless. We will now proceed to consider the state of things which existed before and at the time the amendment was adopted, the mischiefs com- plained of or apprehended, and the remedy intended to be provided for existing and anticipated evils. When the late Civil War broke out, slavery of the African race sub- sisted in fifteen States of the Union. The legal code relating to persons in that condition was everywhere harsh and severe. An eminent writer said : ' ' They cannot take property by descent or purchase ; and all they find and all they own belongs to their master. They cannot make con- tracts, and they are deprived of civil rights. They are assets for the payment of debts, and cannot be emancipated by will or otherwise to the prejudice of creditors." 2 Kent Com. 281, 282. In a note, it is added : " In Georgia, by an Act of 1829, no person is permitted to teach a slave, a negro, or a free person of color to read or write. So in Vir- ginia, by a statute of 1830, meetings of free negroes to learn reading or writing are unlawful, and subject them to corporal punishment ; and it is unlawful for white persons to assemble with free negroes or slaves to VOL. I. —33 514 UNITED STATES V. EHODES. [CHAP. IV. teach them to read or write. The prohibitory Act of the Legislature of Alabama, passed at the session of 1831-32, relative to the instruction to be given to the slaves or free colored population, or exhortation, or preaching to them, or anj' mischievous influence attempted to be exerted oyer them, is sufficiently penal. Laws of similar import are presumed to exist in the other slaveholding States ; but in Louisiana the law on the subject is armed with tenfold severity. It not only forbids any person teaching slaves to read or write, but it declares that anj* person using language in any public discourse from the bar, bench, stage, or pulpit, or any other place, or in anyprivs^^e conversation, or making use of an}- sign or actions having a tendency to produce discontent among the fiee colored population or insubordination among the slaves, or who shall be knowinglj- instrumental in bringing into tlie State an^- paper, book, or pamphlet having a like tendency', shall, on conviction, be pun- ishable with imprisonment or death, at the discretion of the court." Slaves were imperfectly, -if at all, protected from the grossest outrages bj' the whites. Justice was not for them. The charities and rights pf the domestic relations had no legal existence among them. The shadow of the evil fell upon the free blacks. They had but few civil and no political rights in the slave States. Many of the badges of the bondman's degradation were fastened upon them. Their condition, hke his, though not so bad, was helpless and hopeless. This is borne out by the passages we have given from Kent's Commentaries. Further researcli would darken the picture. The States had always claimed and exercised the exclusive right to fix the status of all persons living within their jurisdiction. On January 1, 1863, President Lincoln issued his proclamation of emancipation. Missouri and Maryland abolished slavery hy their own voluntary action. Throughout the war the African race had evinced entire sympathy with the Union cause. At the close of the Rebellion two hundred thousand had become soldiers in the Union armies. Tlie race had strong claims upon the justice and generositj' of the nation. Weightj' considerations of policy', humanity, and right were superadded. Slaver}', in fact, still subsisted in thirteen States. Its simple abolition, leaving these laws and this exclusive power of the States over the eman- cipated in force, would have been a phantom of delusion,. The hostility of the dominant class wonld have been animated with new ardor. Legislative oppression would have been increased in severity. Under the guise of police and other regulations slavery would have been in effect restored, perhaps in a worse form, and the gift of freedom would have been a curse instead of a blessing to those intended to be benefited. Thej- would have had no longer the protection which the instinct of property leads its possessor to give in whatever form the property may exist. It was to guard against such evils that the second section of the amendment was fi-amed. It was intended to give express!}' to Congress the requisite authority, and to leave no room for doubt or cavil upon the subject. The results have siiown the wisdom of this forecast. Al- CHAP. IV.J UNITED STATES V. RHODES. 515 most simultaneously with the adoption of the amendment this course of legislative oppression was begun. Hence, doubtless, the passage of the Act under consideration. In the presence of these facts, who will say it is not an " appropriate " means of carrying out the object of the first section of the amendment, and a necessary- and proper execution of the power conferred bj' the second ? Blot out this Act and deny the consti- tutional power to pass it, and the worst effects of slavery might speedily follow. It would be a virtual abrogation of the amendment. It would be a remarkable anomaly if the national government, with- out this amendment, could confer citizenship on aliens of every race or color, and citizenship, with civil and political rights, on the " inhabit- ants " of Louisiana and Florida, without reference to race or color, and cannot, with the help of the amendment, confer on those of the African race, who have been born and always lived within the United States, all that this law seeks to give them. It was passed by the Congress succeeding the one which proposed the amendment. Many of the members of both Houses were the same. This fact is not without weight and significance. McGulloch v. Maryland, 4 Wheat. 401. The amendment reversed and annulled the original policy of the Con- stitution, which left it to each State to decide exclusively for itself whether slavery should or should not exist as a local institution, and what disabilities should attach to those of the servile race within its limits. The whites needed no relief or protection, and they are prac- tically unaffected by the amendment. The emancipation which it wrought was an act of great national grace, and was doubtless intended to reach further in its effects as to every one within its scope, than the consequences of a manumission by a private individual. We entertain no doubt of the constitutionality of the Act in all its provisions. It gives only certain civil rights. Whether it was competent for Con- gress to confer political rights also, involves a different inquiry. We have not found it necessary to consider the subject. We are not unmindful of the opinion of the Court of Appeals of Ken- tucky, in the case of Brown v. Commonwealth. With all our respect for the eminent tribunal from which it proceeded, we have found our- selves unable to concur in its conclusions. The constitutionality of the Act is sustained by the Supreme Court of Indiana, and the Chief Justice of the Court of Appeals of Maryland, in able and well-considered opin- ions. Smith V. Moody, 26 Ind. 299 ; Re A. IT. Somers. We are happy to know that if we have erred the Supreme Court of the United States can revise our judgment and correct our error. The motion is overruled, and judgment will be entered upon the verdict. Motion overruled. 516 SLiUGHTEK-HOUSE CASES. [CHAP. IV. SLAUGHTER-HOUSE CASES. Supreme Couet of the United States. 1873. [16 Wall. 36.] I Mr. John A. Campbell, and also Mr. J. Q, A. Fellows, argued the case at much length and on the authorities, in behalf of the plaintiffs in error. Messrs. M. H. Carpenter and J. S. ^lack (a brief of Mr. Charles Allen being filed on the same side), and Mr. T. J. Durant, representing in addition the State of Louisiana, contra. Mk. Justice Miller now, April 14, 1873, delivered the opinion of the court. These cases are brought here by writs of error to the Supreme Court of the State of Louisiana. Thej' arise out of the efforts of the butchers of New Orleans to resist the Crescent City Live-Stock Landing and Slaughter-House Companj' in the exercise of certain powers conferred by the charter which created it, and which was granted b^' the legisla- ture of that State. . . . The records show that the plaintiffs in error relied upon, and asserted throughout the entire course of the litigation in the State courts, that the grant of privileges in the charter of defendant, which they were contesting, was a violation of the most important provisions of the thirteenth and fourteenth articles of amendment of the Constitution of the United States. The jurisdiction and the duty of this court to review the judgment of the State court on those questions is clear and is imperative. The statute thus assailed as unconstitutional was passed March 8, 1869, and is entitled " An Act to protect the health of the City of New Oi-leans, to locate the stock-landings and slaughter-houses, and to in- corporate the Crescent City Live-Stock Landing and Slaughter-House Company." The first section forbids the landing or slaughtering of animals whose flesh is intended for food, within the city of New Orleans and other parishes and boundaries named and defined, or the keeping or estab- lishing any slaughter-houses or abattoirs within those limits, except by the corporation thereby created, which is also limited to certain places afterwards mentioned. Suitable penalties are enacted for violations of this prohibition. The second section designates the corporators, gives the name to the corporation, and confers on it the usual corporate powers. The third and fourth sections authorize the company to establish and erect within certain territorial limits, therein defined, one or more stock- j-ards, stock-landings, and slaughter-houses, and impose upon it the ^ The statement of facts is omitted. — Ed. CHAP. IV.] SLAUGHTER-HOUSE CASES. 517 duty of erecting, on or before the first da^' of June, 1869, oue grand slaughter-house of suflflcient capacity for slaughtering five hundred animals per daj'. - It declares that the company, after it shall have prepared all the necessar}- buildings, yards, and other conveniences for that purpose, shall have the sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business within the limits and privilege,, granted by the Act, and that all such animals shall be landed at the stock-landings and slaughtered at the slaughter-houses of the company, and nowhere else. Penalties are enacted for infractions of this provision, and prices fixed for the maximum charges of the company for each steamboat and for each animal landed. Section five orders the closing up of all other stock-landings and slaughter-houses after the first day of June, in the parishes of Orleans, Jefferson, and St. Bernard, and makes it the duty of the company to permit any person to slaughter animals in their slaughter-houses under a heavy penalty for each refusal. Another section fixes a limit to the charges to be made by the companj' for each animal so slaughtered in their building, and another provides for an inspection of all animals intended to be so slaughtered, by an officer appointed by the Governor of the State for that purpose. These are the principal features of the statute, and are all that have anj- bearing upon the questions to be decided by us. This statute is denounced not onlj- as creating a monopol}' and con- ferring odious and exclusive privileges upon a small number of persons at the expense of the great body of the community of New Orleans, but it is asserted that it deprives a large and meritorious class of citizens — the whole of the butchers of the city — of the right to exercise their trade, the business to which they have been trained and on which they depend for the support of themselves and their families ; and that the unrestricted exercise of the business of butchering is necessary to the daily subsistence of the population of the citj'. But a critical examination of the Act hardly justifies these assertions. It is true that it grants, for a period of twentj'-flve years, exclusive privileges. And whether those privileges are at \he expense of the community' in the sense of a curtailment of any of their fundamental rights, or even in the sense of doing them an injury, is a question open to considerations to be hereafter stated. But it is not true that it de- prives the butchers of the right to exercise their trade, or imposes upon them any restriction incompatible with its successful pursuit, or fur-' nishing the people of the city with the necessary daily supply of animal food. The Act divides itself into two main grants of privilege, — the one in reference to stock-landings and stock-yards, and the other to slaughter- houses. That the landing of live-stock in large droves, from steamboats on the bank of the river, and from railroad trains, should, for the safety 518 SLAUGHTER-HOUSE CASES. [CHAP. IV. and comfort of the people and the care of the animals, be limited to proper places, and those not numerous, it needs no argument to prove. Nor can it be injurious to the general community that while the duty of making ample preparation for this is imposed upon a few men, or a cor- poration, they should, to enable them to do it successfully, have the exclusive right of providing such landing-places, and receiving a fair compensation for the service. It is, however, the slaughter-house privilege, which is mainly relied on to justify the charges of gross injustice to the public, and invasion of private right. * It is not, and cannot be successfully controverted, that it is ]both the right and the duty of the legislative body — the supreme power of the State or municipality — to prescribe and determine the localities where the business of slaughtering for a great city may be conducted. To do this effeetivety it is indispensable that all persons who slaughter animals for food shall do it in those places and nowhere else. The statute under consideration defines these localities and forbids slaughtering in any other. It does not, as has been asserted, prevent the butcher from doing his own slaughtering. On the contrary, the Slaughter-House Company is required, under a heavy penalty', to per- mit any person who wishes to do so, to slaughter in their houses ; and tiicy are bound to make ample provision for the convenience of all the slaugiiteriug for the entire citj-. The butcher then is still perfnitted to slaughter, to prepare, and to sell his own meats ; but he is required to slaughter at a specified place and to pa^' a reasonable compensation for the use of the accommodations furnished him at that place. The wisdom of the monopolj- granted by the legislature may be open to question, but it is difficult to see a justification for the assertion that the butchers are depi-ived of the right to labor in their occupation, or the people of their daily service in preparing food, or how this statute, with the duties and guards imposed upon tlie companj-, can be said to destroy the business of the butcher, or seriously interfere with its pursuit. The power here exercised by the Legislature of Louisiana is, in its essential nature, one which has been, up to the present period in the constitutional histor3- of this countr}-, always conceded to belong to the States, however it ma}- now be questioned in some of its details. "Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam-power to propel cars, the building with combustible materials, and the burial of the dead, may all," says Chancellor Kent, 2 Commentaries, 340, " be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors ; and that private interests must be made sub- servient to the general interests of the community." This is called the police power; and it is declared by Chief Justice Shaw, Commonwealth V. Alger, 7 Cush, 84, that it is much easier to perceive and realize CHAP. IV.] SLAUGHTER-HOUSE CASES. 519 the existence and sources of it than to mark its boundaries, or prescribe limits to its exercise. This power is, and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social ordei, the life and health of the citizen, the comfort of an exist- ence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property. " It extends," says an- other eminent judge ( Thorpe v. Rutland and Burlington Railroad Co., 27 Vt. 149), " to the protection of the lives, limbs, health, com- fort, and quiet of all persons, and the protection of all property within the State ; . . . and persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State. Of the perfect right of the legislature to do this no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned." The regulation of the place and manner of conducting the slaughter- ing of animals, and the business of butchering within a cit3', and the inspection of the animals to be killed for meat, and of the meat after- wards, are among the most necessary and frequent exercises of tiiis power. It is not, therefore, needed that we should seek for a compre- hensive deflnijiion, but rather look for the proper source of its exercise. . . . [Here the court briefly considers Gibbons v. Ogden, 9 Wlieat. 1 , Mw York V. Miln, 11 Pet." 102, The License Tax, b Wall. 471, and United States v. JDewitt, 9 Wall. 41.] It cannot be denied that the statute under consideration is aptly framed to remove from the more densely populated part of the city the noxious slaughter-houses, and large and offensive collections of animals necessarily incident to the slaughtering business of a large city, and to locate them where the convenience, health, and comfort of the people require they shall be located. And it must be conceded that the means adopted by the Act for this purpose are appropriate, are stringent, and effectual. But it is said that in creating a corporation for this purpose, and conferring upon it exclusive privileges — privileges which it is said constitute a monopoly — the legislature has exceeded its power. If this statute had imposed on the city of New Orleans precisely the same duties, accompanied by the same privileges, which it has on the cor- poration which it created, it is believed that no question would have been raised as. to its constitutionality. In that case the effect on the butchers in pursuit of their occupation and on the public would have been the same as it is now. Why cannot the legislature confer the same powers on another corporation, created for a lawful and useful public object, that it can on the municipal corporation already existing ? That wherever a legislature has the right to accomplish a certain re- sult, and that result is best attained by means of a corporation, it has the right to create such a corporation, and to endow it with the powers necessary to effect the desired and lawful purpose, seems hardly to admit of debate^ The proposition is ably discussed and affirmed in the case of /o 520 SLAUGHTEE-HOUSE CASES. [cHAP. IV. McGuUoch V. The /State of Maryland, 4 Wheat. 316, in relation to the power of Congress to organize the Bank of the United States to aid in the fiscal operations of the government. It can readily be seen that the interested vigilance of the corporation created by the Louisiana Legislature will be more efficient in enforcing the limitation prescribed for the stock-landing and slaughtering busi- ness for the good of the city than the ordinary efforts of the officers of the law. Unless, tlierefore, it can be maintained that the exclusive privilege granted by this charter to the corporation is beyond the -power of the Legislature of Louisiana, there can be no just exception to the validity of the statute. And in this respect we are not able to see that these privileges are especially odious or objectionable. The duty imposed as a consideration for the privilege is well defined, and its enforcement well guarded. The prices or charges to be made b3' the company are limited by the statute, and we are not advised that the3' are on the whole exorbitant or unjust. The proposition is, therefore, reduced to these terms : Can anj' ex- clusive privileges be granted to any of its citizens, or to a corporation, l)y the legislature of a State ? The eminent and learned counsel who has twice argued the negative of this question, has displaj-ed a research into the history of monopolies in England and the European Continent, only equalled by the eloquence with which they are denounced. But it is to be observed, that all such references are to monopolies established by the monarch in derogation of the rights of his subjects, or arise out of transactions in which the. people were unrepresented, and their interests uncared for. The great Case of Monopolies, reported by Coke, and so full}' stated in the brief, was undoubtedl}'^ a contest of the commons against the monarch. The decision is based upon the ground that it was against common law, and the argument was aimed at the unlawful assumption of power by the Crown ; for who ever doubted the authority of Parliament to change or modifj' the common law? The discussion in the House of Commons cited from Macaulay clearly establishes that the contest was between the Crown, and the people represented in Parliament. But we think it maj' be safel}' affirmed, that the Parliament of Great Britain, representing the people in their legislative functions, and the legislative bodies of this country', have from time immemorial to the present day continued to grant to persons and corporations exclusive privileges, — privileges denied to other citizens, — privileges which come witiiin any just definition of the word monopol}', as much as those now under consideration ; and that the power to do this has never been questioned or denied. Nor can it be truthfully denied, that some of the most useful and beneficial enterprises set on foot for the general good, have been made successful by means of these exclusive rights, and could only have been conducted to success in that way. CHAP. IV.] SLAUGHTER-HOUSE CASES. 521 It may, therefore, be considered as established, that the authoritj' of the Legislature of Louisiana to pass the present statute is amjjle, unless some restraint in the exercise of that power be found in the Constitution of that State or in the amendments to the Constitution of the United States, adopted since the date of the decisions we have already cited. If any such restraint is supposed to exist in the Constitution of the State, the Supreme Court of Louisiana having necessarily passed on that question, it would not be open to review in this court. The plaintiffs in error accepting this issue, allege that the statute is a violation of the Constitution of the United States in these seveTal particulars : — That it creates an involuntary servitude forbidden by the thirteenth article of amendment ; That it abridges the privileges and immunities of citizens of the United States ; That it denies to the plaintiflfs the equal protection of the laws ; and, That it deprives them of their property without due process of law ; contrary to the provisions of the first section of the fourteenth article of amendment. This court is thus called upon for the first time to give construction to these articles. We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citi- zens of the States and of the United States, have been before this court during the official life of any of its present members.* We have given every opportunity for a full hearing at the bar ; we have discussed it freely and compared views among ourselves ; we have taken ample time for careful deliberation, and we now propose to announce the judgments which we have formed in the construction of those articles, so far as we have found them necessar3' to the decision of the eases before us, and beyond that we have neither the inclination nor the right to go. Twelve articles of amendment were added to the Federal Constitution soon after the original organization of the government under it in 1789. Of these all but the last were adopted so soon afterwards as to justify the statement that they were practically contemporaneous with the adoption of the original ; and the twelfth, adopted in eighteen hundred"and three, was so nearly so as to have become, like all the others, historical and of another age. But within the last eight years three other articles of 1 The oldest in office, Mr. Justice Clifford, had succeeded Curtis, J., in Jann- ary, 1858. No one of the bench who had decided the case of Dred Scott v. Sandford, was now present, except Mr. Justice Campbell, — and he was at the bar now, and coimBel for the plaintiffs. — Ed, i^ 522 SLAUGHTER-HOUSE OASES. [CHAP. IV. amendment of vast importance have been added by the voice of tlie peoijle to that now venerable instrument. The most cursoi-y glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when anj- reasonabl}' exist, be safely and rationally solved without a reference to that history ; for in it is found the occasion and the necessity for recurring again to the great source of power in this country, the people of the States, for ad- ditional guarantees of human rights ; ^ditional powers to the Federal government ; additional restraints upon those of the States. Fortu- nately that histojj is fresh within the memory of us all, and its leading features, as thej' bear upon the matter before us, free from doubt.. The institution of African slaverj*, as it existed in about half the States of the Union, and the contests pervading the public mind for many years, between those who desired its curtailment and ultimate extinction and those who desired additional safeguards for its security and perpetuation, culminated in the effort, on the part of most of the States in which slaver^' existed, to separate from the Federal govern- ment, and to resist its authorit3'. This constituted the War of the Rebellion, and whatever auxiliary causes may have contributed to bring about this war, undoubtedlj' the overshadowing and efficient cause was African slavery. In that struggle slavery, as a legalized social relation, perished. It perished as a necessity of the bitterness and force of the conflict. When the armies of freedom found themselves upon the soil of slaverj' they could do nothing less than free the poor victims whose enforced servitude was the foundation of the quarrel. And when hard pressed in the contest these men (for the3' proved themselves men in that ter- rible crisis) offered their services and were accepted by thousands to aid in suppressing the unlawful rebellion, slaverj' was at an end wher- ever the Federal government succeeded in that purpose. The procla- mation of President Lincoln expressed an accomplished fact as to a large portion of the insurrectionary' districts, when he declared slavery abolished in them all. But the war being over, those who had suc- ceeded in re-establishing the authoritj' of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive, both of which might have been questioned in after times, and thej- determined to place this main and most valuable result in the Constitution of the restored tTnion as one of its fundamental articles. Hence the thirteenth article of amendment of that instrument. Its two short sections seem hardly to admit of construction, so vigorous is their expression and so appropriate to the purpose we have indicated. "1. Neither slavery nor involuntarj* servitude, except as a punish- ment for crime, whereof the party shall have been dul3' convicted, shall exist within the United States or any place subject to their jurisdiction. CHAP. IV.J SLAUGHTEE-HOUSE CASES. 523 " 2. Congress shall have power to enforce this article by appropriate legislation." To withdraw the mind from the contemplation of this grand yet sim- ple declaration of the personal freedom of all the human race within the jurisdiction of this government — a declaration designed to establish the freedom of four millions of slaves — and with a microscopic search endeavor to find in it a reference to servitudes, which maj- have been attached to property in certain localities, requires an effort, to say the least of it. That a personal servitude was meant is proved by the use of the word " involuntary," which can onlj' applj' to human beings. The exception of servitude as a punishment for crime gives an idea of the class of ser- vitude that is meant. The word " servitude " is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose was to forbid all shades and conditions of African slavery. It was very well understood that in the form of apprentice- ship for long terms, as it had been practised in the West India Islands, on the abolition of slavery by the English government, or bj' reducing the slaves to the condition of serfs attached to the plantation, the pur- pose of the article might have been evaded, if only the word " slavery " had been used. The case of the apprentice slave, held under a law of Mar3-land, liberated by Chief Justice Chase, on a writ of habeas corpus under this article, illustrates this course of observation. Matter of Turner, 1 Abbott United States Reports, 84. And it is all that we deem necessary' to say on the application of that article to the statute of Louisiana, now under consideration. The process of restoring to their proper relations with the Federal government and with the other States those which had sided with the Eebellion, undertaken under the proclamation of President Johnson in 1865, and before the assembling of Congress, developed the fact that, notwithstanding the formal recognition by those States of the abolition of slavery, the condition of the slave race would, without further pro- tection of the Federal government, be almost as bad as it was before. Among the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal government, were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost the protection which they had received from their former owners from motives both of interest and humanity. They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside on and cultivate the soil without the right to purchase or own it. They were excluded from many occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party. It was said that their lives were at the mercy of bad men, 524 SLAUGHTEE-HOUSE CASES. [CHAP. IT. either because the laws for their protection were insufficient or were not enfoi'ced. These circumstances, whStever of falsehood or misconception may have been mingled with their presentation, forced upon the statesmen who had conducted the Federal government in safety through the crisis of the Rebellion, and who supposed that by the thirteenth article of amendment they had secured tlie result of their labors, the conviction that something more was necessary in the way of constitutional protec- tion to tlie unfortunate race who had suffered so much. Thej' accordingly passed through Congress the proposition |pr the Fourteenth Amendment, and they declined to treat as restored to their full participation in the government of the Union the States which had been in insurrection, until thej- ratified that article by a formal vote of their legislative bodies. Before we proceed to examine more critically the provisions of this amendment, on which the plaintiffs in error rely, let us complete and dismiss the history of the recent amendments, as that history relates to the general purpose which pervades them all. A few years' expe- rience satisfied the thoughtful men who had been the authors of the other two amendments that, notwithstanding the restraints of those articles on the States, and the laws passed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered bj' the white man alone. It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be tuUy secured in their person and their property without the right of suffrage. Hence the Fifteenth Amendment, which declares that " the right of a citizen of the United States to vote shall not be denied or abridged by ^ any State on account of race, color, or previous condition of servitude." The negro having, by the Fourteenth Amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union. • We repeat, tiien, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all ; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested ; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made fi'eeman and citizen from the oppres- sions of those who had formerly exercised unlimited dominion over him. It is true that only the Fifteenth Amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the Fifteenth, CHAP. IV.] SLAUGHTER-HOUSE CASES. 525 We do not saj' that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in anj' question of construction. Undoubtedly while negro slaverj- alone was in the mind of the Congress which pro- posed the thirteenth article, it forbids anj' other kind of slavery, now or hereafter. If Mexican peonage or the Chinese cooly labor system shall develop slaver^' of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will applj-, though the party interested may not be of African descent. But what we do say, and what we wish to be understood [as saying] is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the per- vading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it. The first section of the fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship — not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had gny attempt been made to define it by Act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in tlie public journals. It had been said by eminent judges that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether this propo- sition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott Case, only a few years before the outbreak of the Civil War, that a man of African de- scent, whether a slave or not, was not and could not be a citizen of a State or of the United States.^ This decision, while it met tlie con- demnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled ; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen, were still, not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution. To remove this diflflculty primarily, and to establish a clear and com- prehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed. " All persons born or naturalized in the United States, and subject 1 An inadvertence. See ante, pp. 491 n. and 493 n. — Ed. 526 SLAUGHTER-HO0SE CASES. [CHAP. IV. to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been the sub- ject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision b^- making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to estabHsh the citizen- - ship of the negro can admit of no doubtk The phrase, " subject to its jurisdiction " was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born witljin the United States. frhe next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction between citizen- ship of the United States and citizenship of a State is clearly recognized and established. Not only maj- a man be a citizen of the United States without being a citizen of a State, but an important element is neces- sary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is onl}- necessarj- that he should be born or naturalized in the United States to be a citizen of the V.n'i^ix: It is quit.e 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 circumstances in the individual. We think this distinction and its explicit recognition in this amend- ment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on bj- the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests whollj- on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same. The language is, "No State shall make or enforce any law which /shall abridge the privileges or immunities of citizens of the United States." It is a little remarkable, if this clause was intended as a pro- tection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefuU}' used, and used in contradistinction to citizens of the United States, in the very sentence which precedes it. It is too clear for argu- ment that the change in phraseology- was adopted understandingl^' and with a purpose. Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectiveh' are, we wiU pi'esently consider ; but we wish to state here that it is only the former which are placed bj- this clause under the protection of the Federal Constitution, and that the latter, whatever CHAP, rv.] SLAUGHTEK-HOUSE CASES. 527 they maj' be, are not Intended to have any additional protection by tliis paragraph of the amendment. If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the State as such, the latter must rest for their security and protection where they have heretofore rested ; for they are not em- braced by this paragraph of the amendment. The first occurrence of the words " privileges and immunities " in oui* constitutional history, is to be found in the fourth of the Articles of the old Confederation. It declares " that the better to secure and perpetuate mutual friend- ship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States ; and the people of each State shall have free ingress and regress to and from an3' other State, and shall enjoy therein all the privileges of trade and commerce, subject to tlie same duties, impositions, and restrictions as the inhabit- ants thereof respectively." In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words : " The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." There can be but little question that the purpose of both these provi- sions is the same, and that the privileges and immunities intended are the same in each. In the article of the Confederation we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase. Fortunately we are not without judicial construction of this clause of the Constitution. . . . [Here the court cites and briefly considers Corjield v. Coryell, 4 Wash. C. C. 371, Ward v. Maryland, 12 Wall. 430, and Paul v. Virginia, 8 Wall. 180.] The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it pro- fess to control the power of the State governments over the rights of its. own citizens. ffts sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit. or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within 3-our jurisdiction}^ It would be the vainest show of learning to attempt to prove by cita- tions of authority, tliat up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Fed- 528 SLAUGHTER-HOUSE CASES. [OHAP. IV. eral government for their existence or protection, bej-ond the very few express limitations which the Federal Constitution imposed upon the States — such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, laj' witliin the constitutional and legislative power of the States, and without that of the Federal government. Was it the pur- pose of the Fourteenth Amendment, by the simple declaration that no State should make or enforce anj- law whjch shall abridge the privileges and immunities of citizens of the United States, to transfer tlie security and protection of all the civil rights which we have mentioned, from the States to the Federal govei'nment? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States ? All this and more must follow, if the proposition of the plaintiffs in error be sound. For not onlj- are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that bod^' maj- also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinar3' and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed b3' the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent^ with those rights, as the}- existed at the time of the adop- tion of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far- reaching and pervading, so great a departure from the structure and spirit of our institutions ; when the effect is to fetter and degrade the State governments b}' subjecting them to the control of Congress, in the exercise of powers heretofore universall}' conceded to them of tlie most ordinary and fundamental character ; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people ; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearl}' to admit of doubt. We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them. Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, CHAP. IV.] SLAUGHTEE-HOUSE CASES. 529 and not by this article placed under the special care of the Federal gov- ernment, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State can abridge, until some case involving those privileges may make it neces- sary-to do so. But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which owe their existence to the Federal government, its national character, its Constitution, or its laws. One of these is well described in the case of Crandall v. Nevada, 6 Wall. 36. It is said to be the right of the citizen of this great country, protected hy implied guarantees of its Constitution, " to come to the seat of government to assert any claim he may have upon that govern- ment, to transact any business he may have with it, to seek its protec- tion, 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 conducted, to the sub-treasuries, land offices, and courts of justices in the several States." And quoting from the language of Chief Justice Taney in another case, it is said " that for all the great purposes for which the Federal government was estab- lished, we are one people, with one common country, we are all citizens of the United States ; " and it is, as such citizens, tliat their rights are supported in this court in Crandall v. Nevada.' Another privilege of a citizen of the United States is to demand the care and protection of tlie Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ oi habeas corpus, are rights of the citizen guaranteed 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, all rights secured to our citizens by treaties with foreign nations, ^re 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 of the Union by a bona fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the four- teenth, next to be considered. But it is useless to pursue this branch of the inquiry, since we are of opinion that the rights claimed by these plaintiffs in error, if they have any existence, are not privileges and immunities of citizens of the United States within the meaning of the clause of the Fourteenth Amendment under consideration. " All persons born or naturalized in the United States, and subject VOL. I. — 34 530 SLAUGHTER-HOUSE CASES. [CHAP. IT. to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce anj' law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, libertj', or pi-operty without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws." The argument has not been much pressed in these cases that the de- fendant's charter deprives the plaintiffs of their propertj- without due process of law, or that it denies to them the equal pi'Otection of the law. The first of these paragraphs has been in the Constitution since the adoption of the Fifth Amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions of nearly all the States, as a restraint upon the power of the States. This law, then, has practically been the same as it now is during the exist- ence of the government, except so far as the present amendment ma3' place the restraining power over the States in this matter in the hands of the Federal government. We are not without judicial interpretation, therefore, both State and national, of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed bj' the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision. " Nor shall any State deny to any person within its jurisdiction the equal protection of the laws." In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it b3' suitable legislation. We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergenc}*, that a strong case would be necessar}- for its application to any other. But as it is a State that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of State oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands. We find no such case in the one before ns, and do not deem it necessary to go over the argument again, as it may have relation to this particular clause of the amendment. CHAP. IV.] SLAUGHTER-HOUSE CASES. 531 In the early history of the organization of the government, its states- men seem to have divided on the line which should separate the powers of the national government from those of the State governments, and thouo-h this line has never been very well defined in public opinion, such a division has continued from that day to this. The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late Civil War. It was then dis- covered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resist- ance to the general government. ' Unquestionably this has given great force to the argument, and added largely to the number, of those who believe in the necessity of a strong national government. But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been consider- ing, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still be- lieved that the existence of the States with powers for domestic and local government, including the regulation of civil rights — the rights of person and of property — was essential to the perf(3Ct working of our complex form of government, though they have thought proper to im- pose additional limitations on the States,' and to confer additional power on that of the nation. But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts. The judgments of the Supreme Court of Louisiana in these cases are Affirmed.^ 1 Chief Justice Chase and the Justigbs Field, Brahlet, and Swatne dis- sented, and opinions were given by the last threes Mr. Jdstioe Field argued that the legislation in question was not a legitimate exercise of what is called the police power, but was an attempt to take from private persons and to vest exclusively in a corporation the right to pursue a lawful and necessary calling. It may or may not, he said, be forbidden by the Thirteenth Amend- ment. But it certainly is by the Fourteenth, for it denies to citizens of the United States fundamental rights belonging to the citizens of all free governments. The Fourteenth Amendment secures citizens of the United States in the same fundamental lights whieh are guaranteed in the body of the Constitution (art. 4, s. 2) to citizens of 532 BAETEMEYEK V. IOWA. [CHAP. IV, BARTEMEYER v. IOWA. SoPEEME Court of the United States. 1873. [18 WaU. 129.] Error to the Supreme Court of Iowa, the case being thus : Bartemej'er, the plaintiff in error, was tried before a justice of the peace, on the charge of selling intoxjcating liquors, on the 8th of March, 1870, to one Timothy Hickej', in Davenport township, in the State of Iowa, and was acquitted. On an appeal to the- Circuit Court of the State the defendant filed the following plea : " And now comes the defendant, F. Bartemej'er, and for plea to the information in this cause saj's : He admits that at the time and place mentioned in said information he did sell and deliver to one Timothy Hickey one glass of intoxicating liquor called whiskey, and did then and there receive paj' in lawful money from said Hickey for the same. But the States as against hostile legislation from States other than their own. It protects them against monopolies and secures equality of right in pursuing the ordinary avoca- tions of life. Mr. Justice Bradley, concurring in this opinion, added that the Louisiana statute deprived people of both liberty and property, and also of the equal protection of tlie laws. The right of choice iu adopting lawful employments " is a portion of their lib- erty : their occupation is their property." Mk. Justice Swayne agreed with both these dissenting opinions, and expressed the view that liberty in the Fourteenth Amendment " is freedom from all restraints but such as are justly imposed bylaw. . . ■. Property is everything which has an exchange- able value. . . Labor is property. . . . The right to make it available is next in im- portance to the rights of life and liberty." In Yick Wo V. Hopkins, 118 U. S. 856, 369 (1885), Matthews, J., for the court, said ; " The Fourteenth Amendment to the Constitution is not confined to the protec- tion of citizens. It says : ' Nor shall any State deprive any person of life, liberty, or property without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws.' These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality ; and the equal protection of the laws is a pledge of the pro- tection of equal laws. It is accordingly enacted by § 1977 of the Revised Statutes, that ' all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens and shall be subject to like pun- ishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.' The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court. " It is contended on the part of the petitioners, that the ordinances for violations of which they are severally sentenced to imprisonment, are void%i their face, as being within the prohibitions of the Fourteenth Amendment; and, in the alternative, if not so, that they are void by reason of their administration, operating unequally, so as to punish in the present petitioners what is permitted to others as lawful, without any distinction of circumstances, — an unjust and illegal discrimination, it is claimed, which, though not made expressly by the ordinances, is made possible by them." — Ed. CHAR IV.] BARTEMBYEE V. IOWA. 533 defendant alleges that he committed no crime known to the law by the selling of the intoxicating liquor hereinbefore described to said Hickey, for the reason that he, the defendant, was the lawful owner, holder, and possessor, in the State of Iowa, of said property, to wit, said one glass of intoxicating liquor, sold as aforesaid to said Hickey, prior to the day on which the law was passed under which these proceedings are instituted and prosecuted, known as the Act for the Suppression of Intemperance, and being chapter sixtj'-four of the revision of 1860 ; and that, prior to the passage of said Act for the Suppression of Intemperance, he was a citizen of the United States and of the State of Iowa." Without any evidence whatever the case was submitted to the court on this written plea, the parties waiving a jury, and a judgment was rendered that the defendant was guilty as charged, and he was sen- tenced to pay a fine of $20 and costs. A bill of exceptions was taken, and the case carried to the Supreme Court of Iowa, and that court affirmed the judgment of the Circuit Court and rendered a judgment for costs against the defendant, who now brought the case here on error. There was sufficient evidence that the main ground relied on to reverse the judgment in the Supreme Court of Iowa was, that the Act of the Iowa Legislature on which the prosecution was based, was in violation of the Constitution of the United States.. . . . The case was submitted on printed arguments some time ago, and when the Slaughter-House Cases, reported in 16th Wallace, 36, were argued ; the position of the plaintiff in error in this case being, as it partly was in those, that the Act of the State legislature, the main- tenance of which by the courts below was the ground of the writ of error, was in violation of the Fourteenth Amendment to the Con- stitution. . . . Mr. W. T. Bittoe, for the plaintiff in error; Mr. H. O'Connor, Attorney-General of Iowa, for the State, contra. Mr. Justice Miller, after stating the case, delivered the opinion of the court, as follows : The case has been submitted to us on printed argument. That on the part of the plaintiff in error has taken a very wicle range, and is largely composed of the arguments familiar to all, against the right of the States to regulate traffic in intoxicating liquors. So far as this argument deals with the mere question of regulating this traffic, or even its total prohibition, as it may have been affected by anything in the Federal Constitution prior to the recent amendments of tliat instru- ment, we do not propose to enterjnto a discussion. Up to that time it had been considered as falling within the police regulations of the States, left to their judgment, and subject to no other limitations than such as were imposed by the State Constitution, or by the general principles supposed to limit all legislative power. It has never been seriously contended that such laws raised any question growing out of the Constitution of the Upited States. 534 BAKTEMEYEE V. IOWA. [CHAP. IV. (But the case before us is supposed by counsel of the plaintiff in error to present a violation of the Fourteenth Amendment of the Con- stitution, on the ground that the Act of the Iowa Legislature is a violation of the privileges and immunities of citizens of the United States which that amendment declares sliall not be abridged bj* the States ; and that in his case it deprives him of his property without due process of law^ As regards both branches of this defence, it is to be observed that the statute of Iowa, which is complained of, was in existence loDg before the amendment of the Fedei^l CoBstitutLon, which is thus invoked to render it invalid. Whatever were the privileges and immu- nities of Mr. Bartemej'er, as they stood before that amendment, under the Iowa statute, they have certainlj- not been abridged bj- an^' actioa of the State legislature since that amendment became a part of the Constitution. And unless that amendment confers privileges and im- munities which he did iiot previously possess, the argument fails. But the most liberal advocate of the rights conferred by that amendment have contended for nothing more than that the rights of the citizen previouslj- existing, and -dependent wholly on State laws for their recognition, are now placed under the protection of the Federal govern- ment, and are secured by the Federal Constitution. fThe weight of authority is overwhelming that no such immunity has heretofore existed as would prevent State legislatures from regulating and even prohibit- ing the traffic in intoxicating drinks, with a solitary exceptioii) That exception is the case of a law operating so rigidly on property' in existence at the time of its passage, absolutely prohibiting its sale, as to amount to depriving the owner of his propertj,^ A single case, that of Wynehamer v. The People, 3 Kernan, 486, has held that as to such ■property the statute would be void for that reason. But no case has held that such a law was void as violating the privileges or immunities of citizens of a State or of the United States. O^f, however, such a proposition is seriously urged, we think that the right to sell intoxi- cating liquors, so far as such a riglit exists, is not one of the rights growing out of citizenship of the United States, and in this regard the case falls within the principles laid down by this court in the Slaughter- lIow.se Cases, l6 Wallace, 36?J But if it were true, and it was fairly presented to us, that the defendant was the owner of the glass of intoxicating liquor which he sold to Hickey, at the time that the State of Iowa fi^-st Imposed an absolute prohibition on the sale of such liquors, then we concede that two verj- grave questions would arise, namely: 1. Whether this would be a statute depriving him of his propert}- without due process of law ; ^'and secondly, whether if it were so, it would be so far a violation of the Fourteenth Amendment in that regard as would call for judicial action by tiiis court? Both of these questions, whenever they maj' be presented to us, are of an importance to require the most careful and serious consideration- CHAP. IV.] BAETEMEYEE V. IOWA. 535 Tliey are not to be lightly treated, nor are we authorized to make any advances to meet them until we are required to do so by the duties of our position. In the case before us, the Supreme Court of Iowa, whose judgment we ar« called on to review, did not consider it. They said that the ^record did not present it. It is true the bill of exceptions, as it seems to us, does show that the defendant's plea was all the evidence given, but this does not remove the difficulty in our minds. The plea states that the defendant was the owner of the glass of liquor sold prior to the passage of the law under which the proceedings against him were instituted, being chapter sixty- four of the revision of 1860. If this is to be treated as an allegation that the defendant was the owner of that glass of liquor prior to 1860, it is insufficient, because the revision of the laws of Iowa of 1860 was not an enactment of new laws, but a revision of those previously enacted ; and there has been in existence in the State of Iowa, ever since the code of 1851, a law strictly prohibiting the sale of such liquors ; the Act in all essential particulars under which the defendant was proseoated, amended in some immaterial points. If it is supposed that the averment is helped by the statement that he owned the liquor before the law was passed, the answer is that this is a mere conclusion of law. He should have stated when he became the owner of the liquor, or at least have fixed a date when be did own it, and leave the court to decide when the law took effect, and apply it to his case. But the plea itself is merely argumentative, and does not state the ownership as a fact, but says he is not guilty of any offence, because of such fact. If it be said .that this manner of looking at the case is narrow and technical, we ansVer that the record affords to us on its face the strongest reason to believe'that it has been prepared from the beginning, for the purpose of obtaining the opinion of this court on important constitu- tional questions without the actual existence of the facts on which such questions can alone arise. It is absurd to suppose that the plaintiif, an ordinary retailer of drinks, could have proved, if required, that he had owned that par- ticular glass of whiskey prior to the prohibitory liquor law of 1851. The defendant, from his first appearance before the justice of the peace to his final argument in the Supreme Court, asserted in the record in various forms that the statute under which he was prosecuted/ was a violation of the Constitution of the United States. The act corrected : and this power was exercised. The remedy which Con- And so in the present case, until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the Tights of citizens sought to be protected Jay the Fourteenth Amendment, no legislation of the United States under said amendment, I nor any proceeding under such legislation, can be called into activity : for the prohibitions of the amendment are against State laws and acts done sunder State authority. Of course, legislation may, and should be, pro- vided in advance to meet the exigency when it arises ; but it sliould be adapted to the mischief and wrong which the amendment was intended to provide against ; and that is, State laws, or State action of some kind, adverse to the rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the State legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty and property (which include all civil rights that men have), are by the amendment sought to be protected against invasion on the part of the State without dne process of law. Congress may there- fore provide due process of law for their vindication in every case ; and that, because the denial by a State to any persons, of the equal pro- tection of the laws, is prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation CHAP. IV.] CIVIL EIGHTS CASES. 559 which Congress is authorized to adopt ia this behalf Is not gener aLv, legislation upon the rights of the citizen, but correct.JA'R legislatio pj that is, such as may be necessary' and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they/ rx are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for Congress to adopt. It is sufficient for us to examine whether the law in question is of that character. An inspection of the'law shows that it makes no reference whatever to any supposed or apprehended violation of the Fourteenth Amend- ment on the part of the States. It is not predicated on any such view. It proceeds ex cUrecto to declare that certain acts committed by indi- viduals shall be deemed offences, and shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed bj' the~~States ; it does not make its operation to depend upon any such wrong com- mitted. It applies equally to cases arising in States which have the justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws, as to those which arise in States that may have violated' the prohibition of the amend- ment. In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the State or its authorities. If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where it is to stop. Why may not Congress with equal show of authority enact a code of laws for the enforcement and vindication of all rights of life, liberty, and property ? If it is supposable that the States may deprive persons of life, liberjbA-, and property without due process of law (and the amendment itself does suppose this), why should not Congress proceed at once to pre- scribe due process of law for the protection of every one of these fundamental rights, in every possible case, as well as to prescribe equal privileges in inns, public conveyances, and theatres? The truth is, that the implication of a power to legislate in this manner is based upon the assumption that if the States are forbidden to legislate or act in a particular way on a particular subject, and power is conferred upon Congress to enforce the prohibition, this gives Congress power to legis- late generally upon that subject, and not merely power to provide modes of redress against such State legislation or action. The assumption is j. certainly unsound. It is repugnant to the Tenth Amendment of the Constitution, which declares that powei-s 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. 560 CIVIL EIGHTS CASES. [CHAP. IV. We have not overlooked the fact that the fourth section of the Act now under consideration has been held by this court to be constitu- tional. That section declares " that no citizen, possessing all other qualifications which are or may be prescribed by law, shall be disquali- fied for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of ser- vitude ; and anj' oflScer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be . deemed guilty of a misdemeanor, and be^fined not more than five thou- sand dollars." In Ex parte Virginia, 100 U. S. 339, it was held that an indictment against a State oflScer under this section for excluding persons of color from the jury list is sustainable. But a moment's attention to its terms will show that the section is entirely corrective in its character. Disqualifications for service on juries are only created bj' the law, and the first part of the section is aimed at certain dis- qualifying laws, namely, those which make mere race or color a disquali- fication ; and the second clause is directed against thpse who, assuming to use the authority of the State government, carry into effect such a rule of disqualification. In the Virginia case, the State, through its ofllcer, enforced a rule of disqualification which the law was intended to abrogate and counteract. Whether the statute-book of the State actually laid down anj- such rule of disquaUfication, or not, the State, through its oflScer, enforced such a rule : and it is against such State action, through its oflScers and agents, that the last clause of the section is directed. This aspect of the law was deemed sufficient to divest it of anj' unconstitutional character, and makes it diflfer wideh- from the first and second sections of the same Act which we are now considering. These sections, in the objectionable features before referred to, are diflTerent also from the law ordinarily called the "Civil Rights Bill," originally passed April 9th, 1866, 14 Stat. 27, ch. 31, and re-enacted with some modifications in sections 16, 17, 18, of the Enforcement Act, passed May 31st, 1870, 16 Stat. 140, ch. 114. That law, as re- enacted, after declaring that all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties,, give evidence, and to the full and equal benefit of all laws and proceedings for the sectirity of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exac- tions of every kind, and none other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding, proceeds to enact, that anj- person who, under color of any law, statute, ordinance, i^egulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any rights secured or protected by the preceding section (above quoted), or to different punishment, pains, or penalties, on account of such person CHAP. IV.] CIVIL EIGHTS OASES. 561 being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a. misdemeanor, and subject to fine and imprisonment as specified in the Act. This law is clearly corrective in its character, intended to counteract and furnish redress against State laws and proceedings, and customs having tlie ~- force of law, which sanction the wrongful acts specified. In the Revised Statutes, it is true, a very important clause, to wit, the words "any law, statute, ordinance, regulation or custom to the contrary notwith- standing," wliich gave tiie declaratory section its point and effect, are omitted ; but' the penal part, by which the declaration is enforced, and which is really the efl'ective part of the law, retains the reference to State laws, by making the penalty apply only to those who should sub- ject parties to a deprivation of their rights under color of any statute, ordinance, custom, etc., of any State or Territory : thus preserving the corrective character of the legislation. Rev. St. §§ 1977, 1978, 1979, 5510. The Civil Rights Bill here referred to is analogous in its char- acter to what a law would have been under the original Constitution, declaring that the validity of contracts should not be impaired, and that if any person bound by a contract should refuse to comply with it, under color or pretence that it had been rendered void or invalid by a State law, he should be liable to an action upon it in the courts of the United States, with the addition of a penalty for setting up such an unjust and unconstitutional defence. In this connection it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceed-^ ings. The wrongful act of an individual, unsupported by anj- such authority, is simply a private wrong, or a crime of that individual ;• an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation ; but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress. An individual cannot deprive a man of his right to vote, to hold .property, to bay and sell, to sue in the courts, or to be a witness or a juror ; he may, by force or fraud, interfere with the enjoyment of the right in a particular case ; he may commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow-citizen ; but, unless ■ protected in these wrongful acts by some shield of State law or State authority, he cannot destroy or injure the right ; he will only render himself amenable to satisfaction or punishment ; and amenable therefor ^ to the laws of the State where the wrongful acts are committed. Hence, in all those cases where the Constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the ^tate by pro- hibiting such laws, it is not individual offences, but abrogation and denial of rights, which it denounces, and for which it clothes the Con- voL. I. — 36 $62 CIVIL EIGHTS CASES. [pHAP. IT. gress with power to provide a remedy. This abrogation and denial of rights, for which the States alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be reme- died. And the remedy to be provided must necessarilj' be predicated upon that wrong. It, must assume that in the cases pix)vided for, the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration. Oif course, these- remarks do not apply to those cases in which Con- gress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an. express or implied denial of such power to the States, as in the regulation of commerce with foreign nations, among the several States, and with the Indian tribes, the coin- ing of money, the establishment of post-offices and post-roads, the declaring of war, etc. In these cases Congress has power to pass laws for regulating the subjects specified in every detail, and the conduct and transactions of individuals in respect thereof. But where a sub- ject is not submitted to the general legislative power of Congress, but is only submitted thereto for the purpose of rendering effective some *l prohibition against paiticular State legislation or State action in refer- ence to that subject, the power given is limited b^" its object, and any legislation by Congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited Stat« laws'or proceedings of State officers. If the principles of interpretation which we have laid down are cor- rect, as we deem them to be (and they are in accord with the principles laid down in the cases before referred to, as well as in the recent ease of United States v. Harris, 10? U. S. 629), it is clear that the law in question cannot be sustained b^- an}' grant of legislative power made to Congress by the Fourteenth Amendment. That amendment prohibits the States from denying to any person the equal protection of the laws, and declares that Congress shall have power to enforce, by appropriate legislation, the provisions of the amendment. The law in question, without any reference to adverse State legislation on the subject, de- clares that all persons shall be entitled to equal accommodations and privileges of inns, public conveyances, and places of public amusement, 1/ and imposes a penalty upon any individual who shall deny to anj- citi- zen such equal accommodations and privileges. This is not corrective ^legislation ; it is priraar}' and direct; it takes immediate and absolute • possession of the subject of the right of admission to inns, public con- veyances, and places of amusement. It supersedes and displaces State legislation on the same subject, or only allows it permissive force. It ignores such legislation, and assumes that the matter is one that belongs to the domain of national regulation. Whether it would not have been a more effective protection of the rights of citizens to have clothed Con- gress with plenary power oveV the whole subject, is not now the question. What we have to decide is, whether such plenary power has been con- y^ ferred upon Congress by the Fourteenth Amendment ; and, in our judgment, it has not. CHAT. IV.] CIVIL RIGHTS CASES. 563 We have discussed the question presented by the law on the assump- tion that a right to enjoy equal accommodation and privileges in all inns, public conveyances, and places of public amusement, is one of the essential rights of the citizen which no State can abridge or interfere with. Whether it is such a right, or not, is a different question which, in the view we have taken of the validity of the law on the ground already stated, it is not necessary to examine. We have also discussed the validity of the law in reference to cases arising in the States only ; and not in reference to cases arising in the Territories or the District of Columbia, which are subject to the ple- nary legislation of Congress in every branch of municipal regulation. Whether the law would be a valid one as applied to the Territories and the District is not a question for consideration in the cases before us : they all being cases arising within the limits of States. And whether Congress, in the exercise of its power to regulate commerce amongst the several States, might or might not pass a law regulating rights in public conveyances passing from one State to another, is also a question which is not now before us, as the sections in question are not conceived in any such view. But the power of Congress to adopt direct and primarj^, as distinguished from corrective legislation, on the subject in hand, is sought, in the sec- ond place, from the Thirteenth Amendment, which abolishes slavery. This amendment declares "that neither slavery, nor involuntary servi- tude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction ; " and it gives Congress power to enforce the amendment by appropriate legislation. This amendment, as well as the Fourteenth, is undoubtedly self- executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect it abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be aflFected by it, and to pi-escribe proper modes of redress for its violation in letter or spirit. And such legisla- tion may be primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States. It is true that slavery cannot exist without law, any more than property in lands and goods can exist without law : and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom through- out the United States ; and it is assumed, that the power vested in Congress to enforce the article by appropriate legislation, clothes Con- gress with power to pass all laws necessary and proper for abolishino- all badges and incidents of slavery in the United States : and upon 564 CIVIL EIGHTS CASES. [CHAP. IV. this assumption it is claimed, that this is sufficient authority for declar- ing by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places, of amusement ; the argument being, that the denial of such equal accommodations and privileges is, in itself, a subjection to a species of servitude within the meaning of the amendment. Conceding the major proposition to be true, that Congress has a right to enact all necessarj' and proper laws , for the obliteration and prevention of slavery with all its badges and incideats, -is the minor proposition also true, that the denial to any person of admission to the accommodations and privileges of an inn, a public conveyance, or a theatre, does subject that person to any form r of servitude, or tend to fasten upon him any badge of slaverj- ? If it does not, then power to pass the law is not found in the Thirteenth Amendment. In a very able and learned presentation of the cognate question as to the extent of the rights, privileges and immunities of citizens which cannot rightfully be abridged by State laws under the Fourteenth Amendment, made in a former case, a long list of burdens and dis- abilities of a servile character, incident to feudal vassalage in France, and which were abolished by the decrees of the National Asserabl}-, was presented for the purpose of showing that all inequaUties and observances exacted by one man from another were servitudes, or badges of slavery, which a great nation, in its effort to establish uni- versal liberty, made haste to wipe out and destroy. But these were servitudes imposed by the old law, or by long custom, which had the force of law, and exacted by one man from another without the latter's consent. Should any such servitudes be imposed by a State law, there can be no doubt that the law would be repugnant to the Fourteenth, no less than to the Thirteenth Amendment; nor any greater doubt that Congress has adequate power to forbid any such servitude from being exacted. • But is there any similarity between such servitudes and a denial by the owner of an inn, a public conveyance, or a theatre, of its accommo- dations and privileges to an Individual, even though the denial be founded on the race or color of that individual? Where does an)'' slavery or servitude, or badge of either, arise from such an act of ■(■ denial? Whether it might not be a denial of a right which, if sanc- tioned by the State law, would be obnoxious to the prohibitions of the Fourteenth Amendment, is another question. But what has it to do with the question of slavery? It may be that by the Black Code (as it was called), in the times when slavery prevailed, the proprietors of inns and public conveyances were forbidden to receive persons of the African race, because it might assist slaves to escape from the control of their masters. This was merely a means of preventing such escapes, and was no part of the servitude itself. A law of that kind could not have any such object now^ however justly it might be deemed an invasion of the party's legal CHA.P, IV.] CIVIL EIGHTS OASES. 565 right as a citizen, and amenable to tiie prohibitions of the Fourteenth Amendment. The long existence oC African slavery in this country gave us very distinct notions of' what it was, and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold prop- erty, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities, were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offences. Congress, as we have seen, bj' the Civil Rights Bill of 1866, passed in view of the Thirteenth Amendment, before the Four- teenth was adopted, undertook to wipe out these burdens and disabili- ties, the necessary incidents of slavery, constituting its substance and visible form ; and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property, as is enjoyed by white citi- zens. Whether this legislation was fully authorized by the Thirteenth Amendment alone, without the support which it afterward received from the Fourteenth Amendment, after the adoption of which it was re-enacted with some additions, it is not necessary to inquire. It is referred to for the purpose of showing that at that time (in 1866) Con- gress did not assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community ; but only to declare and vindicate those funda- mental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery. We must not forget that the province and scope of the Thirteenth and Fourteenth Amendments are different; the former simply abol- ished slavery: the latter prohibited the States from abridging the privileges or immunities of citizens of the United States ; from depriv- ing them of life, liberty, or property without due process of law, and from denying to any the equal protection of the laws. The amend- ments are different, and the powers of Congress under them are different. What Congress has power to do under one, it may not have power to do under the other. Under the Thirteenth Amendment, it has only to do with slavery and its incidents. Under the Fourteenth Amendment, it has power to counteract and render nugatory all State laws and pro- ceedings which have the effect to abridge any of the privileges or immunities of citizens of ^he United States, or to deprive them of life, liberty or property without due process of law, or to deny to anj- of them the equal protection of the laws. Under the Thirteenth Amend- ment, the legislation, so far as necessary or proper to eradicate all forms and incidents of slayery and involuntary servitude, may be direct N 566 CIVIL EIGHTS CASES. [CHAP. IV. and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not ; under the Fourteenth, as we have already ^ shown, it must necessarily be, and can only be, corrective in its char- acter, addressed to counteract and afford relief against State regulations or proceedings. The only question under the present head, therefore, is, whether the refusal to any persons of the accommodations of an inn, or a public conveyance, or a place of public amusement, bj- an individual, and ** without any sanction or support from any State law or regulation, does inflict upon such persons anj' manner «f servitude, or form of slavery, as those terms are understood in this country? Many wrongs may be obnoxious to the prohibitions of the Fourteenth Amendmient which are not, in any just sense, incidents or elements of slavery. Such, for example, would be the taking of private property without due process of law ; or allowing persons who have committed certain crimes (horse- stealing, for example) to be seized and hung b}* the posse comitatus without regular trial ; or denying to any person, or class of persons, the right to pursue any peaceful avocations allowed to others. What is called class legislation would belong to this category, and would be obnoxious to the prohibitions of the Fourteenth Amendment, but would not necessarily be so to the Thirteenth, when not involving the idea of arj3' subjection of one man to another. The Thirteenth Amendment V. has respect, not to distinctions of race, or class, or color, but to slavery. The Fourteenth Amendment extends its protection to races and classes, and prohibits any State legislation which has the effect of denying to any race, or class, or to any individual, the equal protection of the laws. Now, conceding, for the sake of the argument, that the admission to an inn, a public convej'^nce, or a place of public amusement, on equal terms with all other citizens, is the right of everj- man and all classes of men, is it any more than one of those rights which the States by the i/Fourteenth Amendment are forbidden to deny to any person? And is the Constitution violated until the denial of the right has some State ~ sanction or authority ? Can the act of a mere individual, the owner of the inn, the public conveyance or place of amusement, refusing the accommodation, be justly regarded as imposing any badge of slavery or servitude upon the applicant, or only as inflicting an ordinary civil injurj', properly cognizable by the laws of the State, and presumably subject to redress by those laws until the contrarj- appears ? After giving to these questions all the consideration which then- .importance demands, we are forced to the conclusion that such an act I of refusal has nothing to do with slavery or involuntary servitude, and that if it is violative of any right of the party, his redress is to be sought under the laws of the State ; or if those laws are adverse to his riathts and do not protect him, his remedy will be found in the corrective legislation which .Congress has adopted, or may adopt, for counteracting the effect of State laws, or State action, prohibited by the Fourteenth CHAP. IV.] CIVIL EIGHTS CASES. 567 Amendment. It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may seev fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business. Innkeepers and public carriers, by the laws of all the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommo- dation to all unobjectionable persons who in good faith apply for them. If the laws themselves make any unjust discrimination, amenable to the prohibitions of the Fourteenth Amendment, Congress has full power' to afford a remedy under that amendment and in accordance with it. When a man has emerged from slaver}', and by the aid of beneficent, legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. There were tliousands of free colored people in this countr}' before the aboli- tion of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens ; yet no one, at that time, thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjo^'ed by white citizens, or because he was subjected to discriminations in the enjoyment of accom- modations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery. If, since that time, the enjoyment of equal rights in all these respects has become established by constitutional enactment, it is not by force of the Thirteenth Amendment (which merely abolishes < slavery), but by force of the Fourteenth and Fifteenth Amendments. i On the whole we are of opinion, that no countenance of authority for the passage of the law in question can be found in either the Thir- teenth or Fourteenth Amendment of the Constitution ; and no other ground of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several States is concerned. This conclusion disposes of the cases now under consideration. In the cases of the United States v. Michael Byan, and of Richard A. Robinson and Wife v. The Memphis & Charleston Railroad Company, the judgments must be affirmed. In the other cases, the answer to be given will be that the first and second sections of the Act of Congress of March 1st, 1875, entitled "An Act to protect all Citizens in their Civil and Legal Rights," are uj)constitutional and void, and that judgment should be rendered upon the several indictments in those cases accord- 1 ''^Sy- And it is so ordered.^ [Harlan, J., gave a dissenting opinion.] 1 Compare The Civil Eights Bill, Hughes, 541 (1875), Younger v. Judah, 111 Mo. 303 (1892). — £jO. 568 PEOPLE V. KING. [CHAP. IV. PEOPLE V. KING. New York Co0kt of Appeals. 1888. [110 iV. Y. 418.] Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made Novem- ber 9, 1886, which affirmed a judgment of the Court of Sessions of Chenango Count^^ entered upon a ve«dict convicting defendant of a misdemeanor. (Reported below, 42 Hun, 186.) The substance of the indictment and the material facts are stated in the opinion. £!. H. Frindle, for appellant. George P. Pudney, for respondent. Andrevfs, J. Section 383 of the Penal Code declares that " no citi- zen of this State can, bv reason of race, color, or previous condition of servitude, be excluded from the equal enjoyment of any accommoda- ' tion, facility, or privilege furnished by innkeepers or common carriers,^ or by owners, managers, or lessees of theatres or other places of amusement, by teachers and officers of common schools and public institutions of learning, or by cemetery associations." The violation of this section is made a misdemeanor, punishable by fine of not less than fifty nor more than five hundred dollars. The defendant and one Scott, in the year 1884, were the owners and proprietors of a skating-rink in the village of Norwich, in this State, erected in that year upon their own lands. Prior to June 13, 1884, they announced, through the public press and otherwise, that the rink would be opened on the evening of that day, and they arranged with the "Apollo" Club, of Binghamton, to attend the opening to give an exhibition of roller-skating, the profits of the entertainment to be divided between the club and the proprietors of the rink. Tickets of admission were sold on the evening in question hy the agents of the proprietor, at the office on the premises, but persons who had not procured tickets were admitted on payment of the charge for admission at the door. Several hundred persons attended the exhibition. During the evening three colored men made application to purchase tickets at the office where tickets were sold, but the agents of the proprietors, having chaige of the sale, acting in accordance with the instructions of the defendant, refused to sell them tickets, because they were persons of color, and they were so informed at the time. The defendant was indicted under the section of the Penal Code above quoted, the indictment alleging, in substance, that the defendant, being one of the owners of a skating- rink, a place of amusement, did, on the day named, exclude from said skating-rink, and from the equal enjoyment of any and all accommoda- tion, facility, and privilege of said skating-rink, George F. Breed, Wil- liam WyckoflT, Charles Eobbins, and others, all being citizens of the CHAP. IV.] PEOPLE V. KING. 569 State, by reason of race and color, etc. The objection is now taken that the indictment is defective, in substance, in not averring the means by which the exclusion of the persons mentioned was effected. The Objection is untenable. The indictment follows the statute, and it was ^ not necessary to aver, with any greater particularity than was used, the circumstances constituting the offence. People v. West, 106 N. Y. 293- Nor is there any force in the suggestion that proof of a refusal to sell to the colored men tickets of admission at the office did not support tlie allegation that tliey were excluded from the rink. The defendant pro- vided tickets as evidence of the right of persons having them to admis- < sion. He refused to furnish this evidence to the persons named in the indictment, which was furnished to all others who applied, placing the refusal on a ground which justified the applicants in supposing, and the jury in finding, that the defendant thereby intended to exclude them, and did thereby exclude them, from the rink. The real question in the case arises upon the contention of the coun- sel for the appellant that the statute upon which the indictment is founded, so far as it undertakes to prescribe that the owner of a place of amusement shall not exclude therefrom any citizen by reason of race, color, or previous condition of servitude, is an unconstitutional inter- ference with private rights, in that it restricts the owner of property in respect to its lawful use, and as to an incident which is not a legitimate matter of regulation by law. The legislation in question is not without precedent. The Act of Con- gress of March 1, 1875, entitled "An Act to protect all Persons in their Civil Eights" (18 U. S. Stat, at Large, 335), contains a section identical in import with section 383 of the Penal Code, except that it is still broader in its scope, and secures, not to citizens only, but to all persons within the jurisdiction of the United States, the equal enjoyment of the ^ accommodation, advantages, facilities, and privileges of "inns, public conveyances on land and water, theatres, and other places of public amusement, subject only to the limitations established by law, and applicable to citizens of every race and color, regardless of any pre- vious condition of servitude." The Civil Rights Act of Mississippi, passed February 7, 1873, contains a similar provision. In Louisiana, the matter is made the subject of a constitutional enactment, ordaining that " all persons shall enjoy equal rights and privileges, etc., in every place of public resort ; " and this was supplemented by Acts of the Legislature of Louisiana, passed in 1870 and 1871. It is not necessary, at this day, to enter into any argument to prove that the clause in the Bill of Rights that no person shall " be deprived of life, liberty, or property witliout due process of law " (Const, art. 1, § 6), is to have a large and liberal interpretation, and that the funda- mental principle of free government, expressed in these words, protects not only life, liberty, and property, in a strict and technical sense, against unlawful invasion by the government, in the exertion of gov- ernmental power in any of its departments, but also protects every 570 PEOPLE V. KING. [chap. IV. essential incident'to the enjoyment of those rights. The interpretation of this time- honored clause has been considered, in recent cases in this court, with a fulness and completeness which leaves nothing to be said bj- waj- of support or illustration. Wynehavier v. People, 13 N. Y. 378 ; Bertholfv. O'Beilly, 74 Id. 509 ; In re Jacobs, 98 Id. 98 ; Peoph V. Marx, 99 Id. 377. But, as the language of the constitutional prohibition implies, life, lib- ^ertj-, and property may be justly affected by law, and the statutes abound in examples of legislation limiting or regulating the use of pri- \ vate property, restraining freedom o£ personal action or controlh'ng ^ individual conduot, which, by common consent, do not transcend the ^ limitations of the Constitution. This legislation is under what, for ^ lack of a better name, is called the police power of the State, — a power incapable of exact definition, but the existence of which is essen- tial to every well-ordered government. Bj- means of this power the legislature exercises a supervision over matters involving the common weal, and enforces the observance, by each individual member of societj', of the duties which he owes to others and to the community at large. It may be exerted whenever necessary to secure the peace, good order, health, morals, and general welfare of the community, and the propri- ety of its exercise within constitutional limits is pnrelj' a matter of legislative discretion with which the courts cannot interfere. In sliort, the police power covers a wide range of particular unexpressed powers reserved to the State affecting freedom of action, personal conduct, and the use and control of property-. " All property," said Shaw, C. J., in Comm. v. Alger, 7 Cush. 85, " is held subject to those general regu- lations which are necessary to the common good and general welfare." This power, of course, is subject to limitations. The line of demarca- ^ tion between its lawful and unlawful exercise it is often difficult to trace. We have held that it cannot be exerted for the destruction of property lawfull3' held and acquired under existing laws, or of any of the essential attributes of such propertj" (W\fneham.&r v. People, supra) ', nor to deprive an individual of the right to pursue a lawful business on bis own premises, not injurious to the public health, or otherwise inimical to the public interests {In re Jacobs, supra) ; nor to prevent the manufac- ture or sale of a useful article of food. People v. Marx, supra. But we have held that the legislature may lawfully subject the owner of premises to pecuniary liability for injuries resulting from intoxication caused in wliole or in part bj' the use of liquor sold by the lessee therein, although the sale itself was lawful {Bertholf v. O'Beilly, supra) ; and it was held by the Supreme Court of the United States, in Munn V. Illinois, 94 U. S. 113, that a State law regulating the licensing of elevators for the handling and storage of grain, and fixing' a maxi- mum charge therefor, was not repugnant to that part of the Fourteenth Amendment of the Constitution of the United States which ordains '^ that "no State shall deprive any person of life, liberty, or property without due process of law." CHAP. IV.] PEOPLE V, KINU 571 In considering whether the enactment of section 383 of the Penal Code transcends legislative power, it is important to have in mind the purpose of the enactment. It cannot be doubted that it was enacted with special reference to citizens of African descent, nor is there any^ doubt that the policy which dictated the legislation was to secure to ^ such persons equal rights with white persons to the facilities furnished by carriers, innkeepers, theatres, schools, and places of public amuse- ment. The raee-prejudice against persons of color, which had its root, in part at least, in th^ system of slavery, was by no means extinguished when, by law, the slaves became freemen and citizens. But this great act of justice towards an oppressed and enslaved people imposed upon the nation great responsibilities. They became entitled to all the privi- leges of citizenship, although the great mass of them were poorly pre- pared to discharge its obligations. The nation secured the inviolability of the freedom Of the colored race and their rights as citizens by the Thirteenth, Fourteenth, and Fifteenth Amendments of the Constitution of the United States. The Fourteenth Amendment ordained, among other things, that " no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, . . . nor deny to any person within its jurisdiction the equal protection of the laws." The construction of the Fourteenth Amendment has come under the consideration of the Supreme Court of the United States in several cases, among others, in two eases known as the jury cases, — Strauder v. West Virginia, 100 U. S. 303, and Ex parte Vir^ ffiiiia, Id. 339. In the case first mentioned it was held that a State law confining the selection of jurors to white persons was in contraven- tion of the Fourteenth Amendment ; and in the second, that the actioa of the State officer invested with the power to select jurors, excluding all colored persons from the lists, was also repugnant to its provisions. In Strauder v. West Virginia, Strong, J., speaking for the majority of the court, said : " The words of the amendment, it is true, are prohib- itory, but they contain a necessarj' implication of a positive immunity or right most valuable to the colored men, — tlie right of exemption from unfriendly legislation against them distinctively as colored ; ex- emption from legal discrimination implying inferiority in civil society,^ lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps toward reducing them to the condition of a subject race." We have referred to these amendments and to the cases constru- ing them, because they disclose the fact that, in the judgment of the nation, the. public welfai'e required that no State should be permitted to establish by law such a discrimination against persons of color as was made by the defendant in this case, for we think it incontestable that a State law excluding colored people from admission to places of public amusement would be considered as- a violation of the Federal Constitution. It would seem, indeed, in view of the Act of March 1, 1875, that, in the opinion of Congress, the amendments had a much 572 PEOPLE V. KING. [CHAP. IV, broader scope, and prevented not only discriminating legislation of this character by the State, but also such discriminatioti by individuals, since the jurisdiction of Congress to pass a law forbidding the exclusion of persons of color from places of public amiieement, and annexing a penalty for its violation, must be derived, if it exists, from the Thir- teenth, Fourteenth, and Fifteenth Amendments.' It cannot be doubted that before they were adopted J;he power to enact such a regulation resided exclusivelj' in the States. But independently of the inference arising from the solemn 'assertion bj- the nation, through its action in adopting the amendments, that legal (Jjscriminations against persons of color bj' the action of States was opposed to the public welfare, it is not difficult to see that there is a public interest which justified the enactment of section 385 of the Code, provided it did not overstep the limits of lawful interference with the uses of private property. The members of the African race, born or naturalized in this countrj', are citizens of the States where thej' reside and of the United States, Both justice and the public interest concur in a policy which shall ele- vate them as individuals and relieve them from oppressive or degrading discrimination, and wliich shall encourage and cultivate a spirit which will make them self-respecting, contented, and loyal citizens, and give them a fair chance in the struggle of life, weighted, as they are at best, with so many disadvantages. It is evident that to exclude colored people from places of public resort on account of their race is to iix upon them a brand of inferiority, and tends to fix their position as a servile and dependent people. It is, of course, impossible to enforce social equality by law. But the law in question simplj* insures to colored citizens the right to admission, on equal terms with others, to public resorts and to equal enjoj-ment of privileges of a quasi public character. The law cannot be set aside, because it has no basis in the public interest, and the promotion of the public good is the main pur- pose for which the police power may be exerted ; and whether, in a given case, it sliall be exerted or not, the legislature is the sole judge, and a law will not be held invalid because, in the judgment of a court, its enactment was inexpedient or unwise. The final question, therefore, is, does the law in question invade the right of property protected by the Constitution ? The State could not pass a law making the discrimination made bj- tiie defendant. The amendments to the Federal Constitution would forbid it. May not the State impose upon individuals having places of publid resort the same restriction which the Federal Constitution places upon the State? It is not claimed that that part of the statute giving to colored people equal rights, at the hands of innkeepers and common carriers, is an infraction of the Constitution. But the business of an innkeeper or a common car- >rier, when conducted by an individual, is a private business, receiving no special privilege or protection from the State. By the common law, 1 See the Civil Sights .Cases, 109 U. S. 3 ; ante, p. 554. —Ed. CHAP. ly.] PEOPLE V. KING. 573 innkeepers and common carriers are bound to furnish equal facilities to all, without discrimination, because public policj* requires tiiem so to do. The business of conducting a theatre or place of public amusement is also a private business in which any one may engage, in the absence of any statute or ordinance. But it has been the practice, which has passed unchallenged, for the legislature to confer upon municipalities the power to regulate bj' ordinance the licensing of theatres and sliows, and to enforce restrictions relating to such places, in the public inter- est, and no one claims that such statutes are an invasion of the right of liberty or property guaranteed by the Constitution. The statute in question assumes to regulate the conduct of owners or managers of places of public resort in the respect mentioned. The principle stated by Waite, C. J., in Munn v. Illinois, supra, which received the assent of the majority of the court, applies in this case. "Where," says tiie Chief Justice, " one. devotes his propertj- to a use in which the public have an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of tlie interest he has thus created." In the judgment of the legislature the public had an interest to prevent race discrimination between citizens, on the' part of persons maintaining places of public amusement, and the quasi public use to which the owner of such a place devoted his property, gives the legislature a right to interfere. If the defendant, instead of basing his exclusion of a class of citizens upon color,'had made a rule excluding all Germans, or all Irishmen, or all Jews, the law as applied to such a case would have seemed entirely reasonable. United States v. JVewcombe [U. S. Dist. Ct.], 4 Phila. 519. But the principle is the same, and if the law could be sustained in the one case, it may in the other. The validity of simi- lar statutes in Mississippi and Louisiana has been sustained by the courts in those States. Donnell v. The State, 48 Miss. 661 ; Joseph v. Bidwell, 28 La. 382. The statute does not interfere with private en- tertainments, or prevent persons not engaged in the business of keeping '' a- place of public amusement, from regulating admission to social, public, or private entertainments given by them as they may deem best, nor does it seek to compel social equality. It was, we think, a valid exercise of the police power of the State over a subject within the cognizance of the legislature. The judgment should be aflSrmed. All concur, except Peckham and Gray, JJ., dissenting; Ruger, C. J., concurring in result. Judgment affirmed.^ I And so Ferguson yGies, 82 Mich. 358 (1890), a8 to restaurants, where the stat- ute IS said to be only declaratory of the common law, as now understood in that State • 4l7fl878l rV^C f "'f,'w^rP"7 ^^"'™' ^- ^- ^°- ^- ^'•'^»' 86 P^- St. 427 (1878); H. R. Co. y. Brown, 17 Wall. 445 (1873). — Ed. 574 LEHEW V. BKUMMELL. [CHAP. 17. LEHEW V. BKUMMELL. Sdpreme Court of Missouri. 1890. [103 Mo. 546.] E. M. Harher, for appellants. B. A. DeBolt, for respondents. Black, J. The five plaintiffs in this case reside in School District Number 4, in Grundy County, and eaab has children entitled to attend the public school maintained therein for the education of white children. In September, 1887, when this suit was commenced, the defendant Barr was the teacher, and three of the defendants were directors of the school district. The defendant Brummell is a man of African descent, and at the last-mentioned date -had four children, all of whom resided with him in said district and were of the ages entitling them to attend the public schools. These four children were the only colored childr n of school age in the'district. No separate school was ever estabhshed or maintained therein for the education of colored children ; but there was such a separate school in the town of Trenton in the same countj-, three and one-half miles from Brummell's residence. No white child in District Number 4 had to go more than two miles to reach the school- house. These colored children were permitted to attend the school maintained for white children in District Number 4 for a short time. On the foregoing facts a temporary injunction was awarded the plain- tiffs, restraining BrumraelFs children from attending the school so estab- lished for white children, which was made perpetual on the final hearing of the cause, and the defendants appealed. But two questions are presented by the briefs for our consideration. The first is, that tlie laws of this State concerning the education of y colored children are in conflict with section 1 of the Fourteenth Amend- ment of the Constitution of the United States, and, therefore, void. Section 1, of article 11, of the Constitution of this State, makes it the duty of the General Assembly to establish and maintain free public schools for the gratuitous instruction of all persons in this State be- tween the ages of six and twenty j-ears ; .and section 3 of the same article declares : " Separate free public schools shall be established for the education of children of African descent." A system of free public schools has been established by general laws \ throughout the State, and for all the purposes of this case it will be sufficient to notice the statutes concerning colored schools. . . . These statute laws simply carry out and put in operation the com- mand of that section of our Constitution before quoted, and the objec- tion now made is levelled at the constitutional provision, and it is that which we are asked to strike down, because of the contention that it violates section 1 of the Fourteenth Amendment of the Constitution of the United States. . . . CHAP. IV.] LEHEW V. BRUMMELL 575 We then come to the last cslause, which is prohibitory of State action. It says, nor shall any State deny to any person within its jurisdictioa the equal protection of the laws. Speaking of this clause in its appli- cation to State legislation as to colored persons, Justice Strong said : " What is this but declaring that the law in the States shall be the same for the black as for the white ; that all persons, whether colored ' or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color?" Strauder y.West Virginia, 100 U. S. 303. We then come to the simple question whether our Constitution and the statutes passed pursuant to it, requiring colored persons to attend schools established and maintained at public expense for the education of colored peisons only, deny to such persons " equal protection of the laws.'' It is to be observed in the first place that these persons are not de- nied the advantages of the public schools. The right to attend such schools and receive instruction thereat is guaranteed to them. The framers of the Constitution and the people by their votes in adopting it, it is true, were of the opinion that it would be better to establish and maintain separate schools for colored children. The wisdom of the provision is no longer a matter of speculation. Under it, the colored children of the State have made a rapid stride in the way of education, *■ to the great gratification of every right-minded man. The schools for white and black persons are carried on at a great public expense, and it has been found expedient and necessary to divide them into classes. That separate schools may be established for male and female pupils cannot be doubted. No one would question the right of the legislature to provide separate schools for neglected children who are too far ad- vanced in years to attend the primary department ; for such separate schools would be to the great advantage of that class of pupils. So, too, schools may be classed according to the attainments of the attend- ants in the branches taught. That schools- may be classed on these and other grounds without violating the clause of- the Federal Constitu- tion now in question, must be conceded. But it will be said the classi- fication now in question is one based on color, and so it is ; but the color carries with it natural race peculiarities which furnish the reason for the classification. There are differences in races, and between individuals of the same race, not created by human laws, some of which can never be eradicated. These differences create different social relations recognized bj' all well-organized governments. If we cast aside chimerical theories and look to practical results, it seems to us it must be conceded that separate schools for colored children is a regulation to their great advantage. It is true Brummell's children must go three and one-half miles to reach a colored school, while no white child in the district is required ' to go further than two miles. The distance which these children must 576 LEHEW V. BRUMMELL. [OHAP. IV. go to reach a colored school is a matter of inconvenience to them, biit it is an inconvenience which must arise in any school system. The law docs not undertake to establish a school within a given dis- tance of any one, white or black. The inequality in distances to be y travelled by the children of different families is but an incident to any classification, and furnishes no substantial ground of complaint. People ex rel. King v. Gallagher, 93 N. Y. 438-451 . The fact must be kept in mind, for it lies at the foundation of this - controversy, that the laws of this State do not exclude colored children from the public schools. Such children,have all the school advantages and privileges that are afforded white children. The fact that the two races are separated for the purpose of receiving instruction deprives <=■ neither of any rights. It is but a reasonable regulation of the exercise of the right. As said in the case just cited, " Equality and not iden- tity of privileges and rights is what is guaranteed to the citizen." Our conclusion is that the Constitution and laws of this State providing for separate schools for colored children are not forbidden by, or in con- flict with, the Fourteenth Amendment of the Federal Constitution ; and the courts of last resort in several States have reached the same result. People ex rel. King v. Gallagher, supra; State ex rel. Games v. McC'ann, 21 Ohio St. 198; Cory v. Carter, 48 Ind. 328; Ward v. Flood, 48 Cal, 36. A like result was reached in Massachusetts under a constitutional provision similar to the Fourteenth Amendment as to the question in hand. Roberts v. The City of Boston, 5 Gushing, 198. We are, also, of the opinion that our conclusion is in accord with the cases cited from the Supreme Court of the United States, the final arbiter of all such questions.^ [The second point, turning on the want of proper parties, is omitted.] 1 And so Chrisman v. Brookhaven, 70 Miss. 477 (1892). In this case the court (Campbell, C. J.) remarks that, "The Constitution of 1890 embodies by express pro- vision, in s. 207, the rule which has always prevailed in this State, that ' separate schools shall be maintained for children of the white and colored races.' " The same doctrine is held as regards legislation requiring railway companies to " provide equal but separ rate accommodations for the white and colored races; " in Ex parte Plessy, 11 So. Rep. 948 (La. Dec. 1892). Compare Lomsv., Sf-c. By. Co. v. Miss., 133 U. S. 587. In Roberts v. The City of Boston, 5 Cush. 198 (1850), before the Fourteenth Amend- ment, a similar question was elaborately argued before the Supreme Court of Massachu- setts by Charles Sumner (3 Pierce's Life of Sumner, 40, 41 ). In an often-cited opinion the court (Shaw, C. J.) said: "The plaintiff, a colored child of five years of age, has commenced this action, by her father and next friend, against the city of Boston, upon the statute of 1845, c. 214, which provides, that any child unlawfully excluded from public-school instruction, in this Commonwealth, shall recover damages therefor, in an action against the city or town by which such public-school instruction is supported. The question therefore is, whether, upon the facts agreed, the plaintiff has been un- lawfully excluded from such instruction. " By the agreed statement of facts, it appears, that the defendants support a class of schools called primary schools, to the number of about one hundred and sixty, designed for the instruction of children of both sexes, who are between the ages of four and CHAP. IV.J LEHEW V. BRUMMELL. 577 seven years. Two of these schools are appropriated by the primary school committee, having charge of that class of schools, to the exclusive instruction of colored children, and the residue to the exclusive instruction of white children. " The plaintiff, by her father, took proper measures to obtain admission into one of these schools appropriated to white children, but pursuant to the regulations of the committee, and in conformity therewith, she was not admitted. Either of the schools appropriated to colored children was open to her ; the nearest of which was about a fifth of a mile or seventy rods more distant from her father's house than the nearest primary school. It further appears, by the facts agreed, that the committee having charge of that class "of schools had, a short time previously to the plaiutiff's application, adopted a resolution, upon a report of a committee, that in the opinion of that board, the continuance of the separate schools for colored children, and the regular attendance of all such children upon the schools, is not only legal and just, but is best adapted to promote the instruction of that class of the population. . . . " The plaintiff had access to a. school, set apart for colored children, as well con* ducted in all respects, and as well fitted, in point of capacity and qualification of the instructors, to advance the education of children under seven years old, as the other primary schools ; the objection is, that the schools thus open to the plaintiff are exclu- sively appropriated to colored children, and are at a greater distance from her home. Under these circumstances, has the plaintiff been unlawfully excluded from public- school instruction ? Upon the best consideration we have been al)le to give the sub ject, the court are all of opinion that she has not. " It will be considered that this is a question of power, or of the legal authority of the committee intrusted by the city with this department of public instruction ; because, if they have the legal authority, the expediency of exercising it m any particular way is exclusively with them. " The great principle, advanced by the learned and eloquent advocate of the plain- tiff, is, that by the Constitution and laws of Massachusetts, all persons without distinc- tion of age or sex, birth or color, origin or condition, are equal before the law. This, as a broad general principle, such as ought to appear in a declaration of rights, is per- fectly sound ; it is not only expressed in terms, but pervades and animates the whole spirit of our constitution of free government. But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will npt warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law, for their maintenance and security. What those rights are, to which individ- uals, in the infinite variety of circumstances by which they are surrounded in society, are entitled, must depend on laws adapted to their respective relations and conditions! " Conceding, therefore, in the fullest manner, that colored persons, the descendants of Africans, are entitled by law, in this Commonwealth, to equal rights, constitntional and political, civil and social, the question then arises, whether the regnlation in ques- tion, which provides separate schools for colored cbUdren, is a violation of any of these rights. "Legal rights must, after all, depend upon the provisions of law; certainly all those rights of individuals which can be asserted and maintained in any judicial tribunal. The proper province of a declaration, of rights and constitution of government, after directing its form, regulating its organization and the distribution of its powers, is to declare great principles and fundamental truths, to influence and direct the judgment and conscience of legislators in making laws, rather than to limit and control them by directing what precise laws they shall make. The provision, that it shall be the duty of legislatures and magistrates to cherish the interests of literature and the sciences especially the University at Cambridge, public schools, and grammar schools, in the towns, is precisely of this character. Had the legislature failed to comply with this injunction, and neglected to provide public schools in the towns, or should they so far fail in their duty as to repeal aU laws on the subject, and leave all education to denend VOL. I. — 37 578 IN EE LOOK TIN SING. [CHAPj IV. In ee look tin SING. CiRCCiT Court of the United States, California. 1884. [10 Sawyer, 353.] Before Field, Circuit Justice, Sawxer, Circuit Judge, and Sabin, District Judge.^ T. 3. Miordan and William M. Stewm-t, for the petitioner ; K G. Bilborn, United States Attorney, Warroll Cook, Assistant United States Attornej', and John N. Pomeroy, for the United States. By the Court, Field, Circuit Justice. The petitioner belongs to the on private means, strong and explicit as the direction of the Constitution is, it would afford no remedy or redress to the thousands of the rising generation, who now depend op these schools to afford them a most valuable education, and an introduction to use- ful life. " We must then resort to the law, to ascertain what are the rights of individilajs, in regard to the schools. By the Rev. Sts. c. 23, the general system is provided for. . . . " In the absence of special legislation on this subject, the law has vested the power in the committee to regulate the system of distribution and classification ; and when this power is reasonably exercised, without being abused or perverted by colorable pretences, the decision of the committee must be deemed conclusive. The committee, apparently upon great deliberation, have come to the, conclusion, that the good of both classes of schools will be best promoted, by maintaining the separate primary schools for colored and for white children, and we can perceive no ground to doubt, that this is the honest result of their experience and judgment. " It is urged, that this maintenance of separate schools tends to deepen and perpetu- ate the odious distinction of ca^te, founded in a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the community, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted ; at all events, it is a fair and proper question for the committee to consider and decide upon, having in view the best interests of both classes of children placed under their superintendence, and we cannot say, that their decision upon it is not founded on just grounds of reason and experience, and in the results of a discriminating and honest judgment. "The increased distance, to which the plaintiff was obliged to go to school from her father's house is not such, in our opinion, as to render the regulation in question unrea- sonable, still less illegal. " On the whole the court are of opinion, that upon the facts stated, the action cannot be maintained." Plaintiff nonsuit. Compare West Chester, ^c. R. R. Co. v. Miles, 55 Pa. St. 209 (1867). In Board of Eda- cation V. Ti'nnon, 26 Kans. 1 (1881), it was held that in the absence of clear legislative authority, a board of education could not establish separate schools for white and col- ored persons, For the purpose of the opinion it was assumed, although doubt was inti- mated, that the legislature might authorize such a separate system. Bkeweb, J., dissented. With this case is People v. The Board of Education, 101 111. 308 (1882). Compare Coger v. N. W. Packet Co., 37 Iowa, 145 (1873); The Sue, 22 Fed. Rep. 843 (1885) ; Logwood y. Memphis, ^c. R. Co., 23 Fed. Rep, 318 (1885); The Civil Rights Bill, Hughes, 541 (1875),— Ed. I JnoGE HoPFMAK did not .lit on the hearing of this case, but he was on the Bench when the opinion was delivered, and concurred in the yiews expressed. CHAP. IV.] IN RE LOOK TIN SING. 579 Chinese race, but he was born in' Mendocino, in the Stat^ of California, ^ in 1870. In 1879 he went to China, and returned to the port of San Francisco during the present month (September, 1884), and now seeks to land, claiming the right to do so as a natural-born citizen of the United States. It is admitted bj? an agi-eed statement of facts that his parents are now residing in Mendocino, in California, and have resided there for the last twenty years ; that they are of the Chinese race, and have al- ways been subjects of the Emperor of China ; that his father sent the petitioner to China, but with the intention that he should return to this country ; that the father is a merchant at Mendocino, and is not here in anj' diplomatic or other ofScial capacity under the Emperor of China. The petitioner is without any certificate, under the Act of 1882, or of 1884, and the District Attorney of the United States, intervening for •■ the government, objects to his landing for the want of such certificate. The first section of the Fourteenth Amendment to the Constitution declares that " all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens' of the United States and \ of the State wherein they reside." This language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States. Any doubt on the subject, if there can be anj-, must arise out of the words " subject to the jurisdiction thereof" They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them, when obedience can be ren- dered ; and only those thus subject by their birth or naturalization are ^ within the terms of the amendment. The jurisdiction over these latter 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 min- isters and ambassadors, whose residence, by a fiction of public law, is regarded as 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 witiiin their territorial jurisdiction, are also excepted. They are considered as born in the country to which the vessel belongs. In the sense of public law, they are not born within the jurisdiction of the United States. The language used has also a more extended purpose. It was designed to except from citizenship persons who, though born or naturalized in the United States, have renounced their allegiance to our government, ^ and thus dissolved their political connection with the country. The United States recognized the right of every one to expatriate himself and choose another country. This right would seem to follow from the greater right proclaimed to the world in the memorable document in which the American colonies declared their independence and separation from the British Crown, as belonging to every human being — God-given 580 IN EE LOOK TIN SING. [CHAP. IV. and inalienable — the right to pursue his own happiness. The English doctrine of perpetual and unchangeable allegiance to the government of one's birth, attending the subject wherever he goes, has never taken root in this country-, although there are judicial dicta that a citizen cannot renounce his allegiance to the United States without the permission of the government, under regulations prescribed by law ; and this would seem to have been the opinion of Chancellor Kent when he published his Commentaries. But a different doctrine prevails now. The naturaliza^ tion laws have always proceeded upon the theorj- that any one can change his home and allegiance withouj^the consent of his government. And we adopt as citizens those belonging to our race, who, coming from ''Other lands, manifest attachment to our institutions and desire to be in- corporated with us. So profoundly' convinced are we of the right of these immigrants from other countries to change their residence and allegiance, that as soon as they are naturalized they are deemed entitled, with the native-born, to all the protection which the government can ex- tend to them wherever they may be, at home or abroad. And the same right which we accord to them to become citizens here is accorded to them as well as to the native-born, to transfer their allegiance from our government to that of other States. In an opinion of Attornej'-General Black, in the case of a native Bavarian, who came to this country, and, after being naturalized, re- turned to Bavaria, and desired to resume his status as a Bavarian, this doctrine is maintained. " There is," he says, "no statute or other law of the United States which prevents either a native or naturalized citi- zen from severing his political connection with this government, if he sees proper to do so in time of peace, and for a purpose not directly injurious to the interests of the country. There is no mode of renunci- ation prescribed. In my opinion, if he emigrates, carries his family and effects with him, manifests a plain intention not to return, takes up his permanent residence abroad, and assumes the obligation of a subject to a foreign government, this would impl}- a dissolution of his previous relations to the United States, and I do not think we could, or would, afterward claim from him anj' of the duties of a citizen." 9 Opin. Atty.-Gens. 62. The doctrine thus stated has long been received in the United States as a settled rule of public law ; and in the treaty of 1868 between China ^ and this country, the right of man to change his home and allegiance is recognized as "inherent and inalienable." 16 Stats., p. 740, art. 5. And in the recital of an Act of Congress passed nearly at the same time with the signing of the. treaty, this right is assumed to be "a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, Hberty, and the pursuit of happiness ; " and in the body of the Act, " any declaration, instruction, opinion, order, or decision ot any officers of tills government which denies, restricts, impairs, or questions the right of expatriation," is declared to be "inconsistent with the fundamental principles " of our government. 13 Stats. 223 ; CHAP. IV.] IN EE LOOK TIN SING. 581 R. S., sect. 1999. So, therefore, if persons born or naturalized in the United States have removed from the country and renounced, in any of the ordinarj- modes of renunciation, their citizenship, they thenceforth x cease to be subject to the jurisdiction of the United States. With this explanation of the meaning of the words in the Fourteenth Amendment, " subject to the jurisdiction thereof," it is evident that they do not exclude the petitioner from being a citizen. He is not within any of the classes of persons excepted from citizenship ; and the juris- ' diction of the United States over him at the time of his birth was ex- ' elusive of that of any other country. The clause as to citizenship was inserted in the amendment not merely as an authoritative declaration of the generally recognized law of the country so far as the white race is concerned, but also to overrule the doctrine of the Dred Scott Case, aflEirming that persons of the African ^ race brought over to this country and sold as slaves, and their descend- . ants, were not citizens of the United States nor capable of becoming such. 19 How. 393. The clause changed the entire status of these people. It lifted them from their condition of mere freedmen and con- ferred upon them, equally with all other native-born, the rights of citizen- ship. When it was adopted, the naturalization laws of the United States excluded colored persons from becoming citizens, and the freed- men and their descendants, not being aliens, were without the purview of those laws. So the inabiUty of persons to become citizens under those laws in no respect impairs the effect of their birth, or of the birth of their children, upon the status of either as citizens under the amend- ment in question. Independently of the constitutional provision, it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves, and their descendants, that birth within the dominions i and jurisdiction of the United States of itself creates citizenship. This subject was elaborately considered by Assistant Vice-ChancelloT Sand- ford in Lynch v. Clarke^ found in the first volume of his reports. 1 Sandf. 583. In that case one Julia Lynch, born in New York, in 1819, of alien parents, during their temporarj' sojourn in that citj", returned with them the same year to their native country, and always resided there afterwards. It was held that she was a citizen of the United States. After an exhaustive examination of the law, the Vice-Chancellor said that he entertained no doubt that every person born within the domin- ions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen ; and added, that this was the gen-' eral uhderstanding of the l»gal profession, and the universal impression of the public mind. In illustration of this general understanding, he mentions the fact, that when at an election an inquiry is made whether the person offering to vote is a citizen or an alien, if he answers that he is a native of this country the answer is received as conclusive that he is a citizen ; that no one inquires further ; no one asks whether his 582 IN EE LOOK TIN SING. [CHAP. IV. parents were citizens or foreigners ; it is enough that he was born here whatever was the status of his parents. He shows also that legislative expositions on the subject speak but one language, and he cites to that effect not only the laws of the United States, but the statutes of a great number of the States, and establishes conclusively that there is on this subject a concurrence of legislative declaration with judicial opinion, and that both accord with the general understanding of the profession and of the public* Whether it be possible for an alien, who could be naturalized undesr our laws, to renounce for his children, whilsf under the age of majority, the right of citizenship, which by those laws he could acquire for them, it is unnecessary to consider, as no such question is presented here. Nor is the further question before us whether, if he cannot become a citizen, he can, b}- his act, release any right conferred upon them by the Constitution. As to the position of the District Attorney that the Restriction Act prevents the reentry' of the petitioner into the United States, even if he be a citizen, only a word is nepessarj-. The petitioner is the son of a merchant, and not a laborer within the meaning of the Act. Being a citizen, the law could not intend that he should ever look to the govern- ment of a foreign countr}- for permission to return to the United States, and no citizen can be excluded from this country except in punishment for crime. Exclusion for any other cause is unknown to our laws and beyond the power of Congress. The petitioner must be allowed to land, and it is so ordered." 1 In 1855 Congress passed the following Act, securing citizenship to children of citizens of the United States born without their limits : — Chapter LXXI. — An Act to secure the Right of Citizenship to Children of Citizens of the United States bom out of the Limits thereof. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were, or shall be . at the time of their birth, citizens of the United States, shall be deemed and considered, and are hereby declared to be, citizens of the United States; provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States. Sec. 2. And be it further enacted, that any woman who might lawfully be natural- ized under the existing laws, married, or who shall be married, to a citizen of the United States, shall be deemed and taken to be a citizen. Approved February 10, 1855. The provisions of this statute are re-enacted in the Revised Statutes in sections 1993 and 1994. 2 Compare McKay v. Campbell, 2 Sawyer, U. S. C. C. Oregon, 118 (1871). As to the power of the political departments of the government to keep out aliens, and to remove them, see Chae Chan Ping v. U. S., 130 V. S. 581 (1889) ; Nishimura Ekiu V. U. S., 142 U. S. 651 (1892) ; and Fong Yue Ting v. U. S., 149 U. S. 699, s. c. ante, p. 374. — Ed. CHAP. IV.J WORCESTEK 1;. GEORGIA. 683 WORCESTER v. THE STATE OF GEORGIA. Supreme Court of the United States. 1832. [6 Pet. 515.] 1 Error to the Superior Court for the county of Gwinnett in the State of Georgia. The plaintiff in error, being a missionary residing among the Cheroliee Indians in Georgia by permission of the United States, was indicted under a Statute of Georgia forbidding such residence with- out a license from the authorities of the State, and was convicted and sentenced to imprisonment. Sergeant and Wirt, with whom also was JEllisha W. Chester. Marshall, C. J., delivered the opinion of the court. . . . The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the States ; and provide that all intercourse with them shall be carried on exclusively by the government of the Union. Is this the rightful exercise of power, or is it usurpation ? While these States were colonies, this power, in its utmost extent, 'was admitted to reside in the Crown. When our Revolutionary struggle commenced, Congress was composed of an assemblage of deputies act- ing under specific powers granted by the legislatures, or conventions of the several colonies. It was a great popular movement, not per- fectly organized ; nor were the respective powers of those who were intrusted with the management of affairs accurately defined. The necessities of our situation produced a general conviction that those measures which concerned all, must be transacted by a body in which the representatives of all were assembled, and which could command the confidence of all : Congress, therefore, was considered as invested I with all the powers of war and peace, and Congress dissolved -our con- nection with the mother country, and declared these United Colonies to be independent States. Without any written definition of powers, they employed diplomatic agents to represent the United States at the sev- eral courts of Europe ; offered to negotiate treaties with them, and did actually negotiate treaties with France. From the same necessity, and' on the same principles. Congress assumed the management of/ Indian affairs ; ffrst in the name of these United Colonies ; and, after- wards, in the name of the United States. Early attempts were made at negotiation, and to regulate trade with them. These not proving successful, war was carried on under the direction, and with the forces of the United States, and the efforts to make peace, by treaty, were earnest and incessant. The confederation found Congress in the exer- cise of the same powers of peace and war, in our relations with Indian .nations, as with those of Europe. I The statement of facts is shortened. — Ed. 584 WORCESTER V. GEORGIA. [CHAP. IV. Such was the state of things when the confederation was adopted. That instrument surrendered the powers of peace and war to Con- gress, and prohibited them to the States, respective!}', unless a State be ^ actually invaded, " or shall have received certain advice of a resolution being formed b}' some nation of Indians to invade such State, and the danger is so imminent as not to admit of delay till the United States in Congress assembled can be consulted." This instrument also gave the United States in Congress assembled the sole and exclusive right of "regulating the trade and managing all the affairs with the Indians, not members of any of the States : provided, that the legislative power of any State within its own limits be not infringed or violated." The ambiguous phrases which follow the grant of power to the United States were so construed by the States of North Carolina and Georgia as to annul the power itself. The discontents and confusion resulting from these conflicting claims, produced representations to Congress, ^ which were referred to a committee, who made their report in 1787. The report does not assent to the construction of the two States, but recommends an accommodation, by liberal cessions of territory, or bj' an admission, on their part, of the powers claimed bj- Congress. The correct exposition of this article is rendered unnecessary by the adop- tion of our existing Constitution. That instrument confers on Congress the powers of war and peace ; of making treaties, and of regulating commerce with foreign nations, and among the several States, and with the Indian tribes. These powers comprehend all that is required for ^ the regulation of our intercourse with the Indians. They are not limited by any restrictions on their free actions. The shackles imposed on this \ power, in the confederation, are discarded. The Indian nations had always been considered as distinct, independ- ent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them ^ from intercourse with anj- other European potentate than the first dis- coverer of the coast of the particular region claimed : and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term " nation," so generally applied^ to them, means " a people distinct from others." The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous trea- ties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words " treaty " and " nation " are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well-understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense. Georgia, herself, has furnished conclusive evidence that her former opinions on this subject concurred with those entertained by her sister , CHAP. IV.] WORCESTER V. GEORGIA. 585 States, and by the government of the United States. Various Acts of her Legislature have been cited in the argument, including the contract of cession made in the year 1802, all tending to prove her acquiescence in the universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right should be extinguished by \ the United States, with their consent : that their territory was separated from that of any State within whose chartered limits they might reside, by a boundary line, established by treaties : that, within their boundary, they possessed rights with which no State could interfere : and that the whole power of regulating the intercourse with them, was vested in the United States. A review of these Acts, on the part of Georgia, would occupy too much time, and is the less necessary, because they have been accurately detailed in the argument at the Bar. Her new series of laws, manifesting her abandonment of these opinions, appears to have commenced in December, 1828. In opposition to this original right, possessed by the undisputed occu- pants of every country ; to this recognition of that right, which is evi- denced by our history, in everj' change through which we have passed ; is placed the charters granted by the monarch of a distant and distinct region, parcelling out a territorj' in possession of others whom he could not remove and did not attempt to remove, and the cession made of his claims by the treaty of peace. The actual state of .things at the time, and all history since, explain these charters ; and the King of Great Britain, at the treaty of peace, could cede only what belonged to his crown. These newlj' asserted titles can derive no aid from the articles so often repeated in Indian treaties ; extending to them, first, the protection of Great Britain, and afterwards that of the United States. These articles are associated with others, recognizing their title to self-government. The very fact of repeated treaties with them recognizes it ; and the settled doctrine of " the law of nations is, that a weaker power does not surrender its inde- \ pendence — its right to self-government, by associating with a stronger, and taking its protection. A weak State, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a State. Examples of this kind are not wanting in Europe. " Tributary and feudatory States," says Vattel, " do not thereby cease to be sovereign and independent States, so long as self-government and sovereign and independent authority are left in the administration of the State." At the present day, more than one State may be considered as holding its right of self-government under the guarantee and protection of one or more allies. The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have \ no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the Acts of Congress. The whole 586 WOKCESTER 1>. GEORGIA. [CHAP. IV. intercourse between the United States and tliis nation, is, bj' our Con- stitution and laws, vested in the government of the United States. The Act of the State of Georgia, under which the plaintiff in eiTor was prosecuted, is consequently void, and the judgment a nullitj-. Can this court revise, and reverse it? If the objection to the system of legislation, lately adopted by the Legislature of Georgia, in relation to the Cherokee nation, was confined to its extra-territorial operation, the objection, though complete, so far as respected mere right, would give this court no power over the sub- ject. But it goes much further. If the review which has been taken be correct, and we think it is, the Acts of Georgia are repugnant to the Constitution, laws, and treaties of the United States. They interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, accord- ing to the settled principles of our Constitution, are committed exclu- sively to the government of the Union. They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee coun- try from Georgia ; guarantee to them all the land within their boundarj- ; solemnl3' pledge the faith of the United States to restrain their citizens from trespassing on it ; and reco(gnize the pre-existing power of the nation to govern itself. They are in equal hostility with the Acts of Congress for regulating this intercourse, and giving effect to the treaties. The forcible seizure and abduction of the plaintiff in error, who was residing in the nation with its permission, and bj- authority of the Presi- dent of the United States, is also a violation of the Acts which authorize the chief magistrate to exercise this authoritj'. Will these powerful considerations avail the plaintiff in error? We think thej' will. He was seized, and forcibly carried away, while under guardianship of treaties guaranteeing the country in which he resided, and taking it under the protection of the United States. He was seized while performing, under the sanction of the chief magistrate of the Union, those duties which the humane policy adopted by Congress had recommended. He was apprehended, tried, and condemned, under color of a law which has been shown to be repugnant to the Constitu- tion, laws, and treaties of the United States. Had a judgment, liable to the same objections, been rendered for property-, none would ques- tion the jurisdiction of this court. It cannot be less clear when the judgment affects personal libertj', and inflicts disgraceful punishment, if punishment could disgrace when inflicted on innocence. The plaintiff in error is not less interested in the operation of this unconstitutional law than if it affected his property. He is not less entitled to the protec- tion of the Constitution, laws, and treaties of his country. This point has been elaborately argued and, after deliberate con- sideration, decided, in the case of Cohens v. The Commonwealth of Virginia, 6 Wheat. 264, CHAP. IV.] ELK V. WILKINS. 587 It is the opinion of this court that tlie judgment of the Superior Court for the county of Gwinnett, in the State of Georgia, condemning Samu€(l A. Worcester to hard labor, in the penitentiary of the State of Georgia, for four years, was pronounced by that court under color of a law which is void, as being repugnant to the Constitution, treaties, and laws of the United States, and ought, therefore, to be reversed and annulled. [The concurring opinions of McLean, J. and Washington, J., and the dissenting opinion of Baldvfin, J., are omitted.] ' In Elk V. Wilkins, 112 U. S. 94 (1884), on eiTor to the Circuit Court of the United States for the District of Nebraska, the plaintiff, an Indian, had brought an action against the defendant, the registrar of a ward in Omaha, for refusing to register him as a qualified voter. The case turned on the question whether the plaintiff was a citizen of the United States. The court (Geay, J.) in holding that he was not, said : " The question then is, whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States, and of his afterwards voluntarily' sepa- rating himself from his tribe and taking up his residence among white citizens, a citizen of the United States, within the meaning of the first section of the Fourteenth Amendment of the Constitution. "Under the Constitution of the United States, as originally estab- lished, ' Indians not taxed ' were excluded from the persons according to whose numbers representatives and direct taxes were apportioned among the several States ; and Congress had and exercised the power to regulate commerce with the Indian tribes, and the members thereof, whether within or without the boundaries of one of the States of the Union. The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States ; but they were alien nations, distinct political communities, with whom the United States might and habitually did deal, as they thought fit, either through treaties made by the President and Senate, or through Acts of Congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States.' They were in a dependent condition, a state of pupilage, resembling that of a ward to his guardian. Indians and their property-, exempt from taxation by treaty or statute of the United States, could not be taxed by any State. General Acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them. . . . " The alien and dependent condition of the members of the Indian tribes could not he put off at their own will, without the action or assent of the United States, they were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect, either declaring a certain tribe, or such members of 1 See Cherokee Nation t. Ga., 5 Pet. 1 (1831). —Ed. 588 ELK V. WILKINS. [CHAP. IV. it as chose to remain behind on the removal of the tribe westward, to be citizens, or authorizing individuals of particular tribes to become citizens on application to a court of the United States for naturalization, and satisfactory proof of fitness for civilized life. . . . " The distinction between citizenship by birth and citizenship by naturalization is clearlj' marked in the provisions of the Constitution, by which ' 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 ; ' and 'the Congress shall have power to establish an uniform rule of naturalization.' Constitution, art. 2, sect. 1 ; art. 1, sect. 8. . . . " This section [Amendment XIV., s. 1] contemplates two sources of citizenship, and two sources only : birth and naturalization. The per- sons declared to be citizens are ' all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, not merely- subject in some respect or degree to the jurisdiction of the United States, but eompletelj* subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case', as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except hy being naturalized, either individually, as by proceedings under the Naturalization Acts, or collectively, as by the force of a treaty bj' which foreign territorj- is acquired. "Indians born within the territorial limits of the United States, mem- bers 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 sec- tion 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 citizens in the second way mentioned in the Fourteenth Amendment, by being ' naturalized in the United States,' by or under some treaty or statute. . . . " Since the ratification of the Fourteenth Amendment, Congress has passed several Acts for naturalizing Indians of certain tribes, which would have been superfluous if they were, or might become, without any action of the government, citizens of the United States. . . . " There is nothing in the statutes or decisions, referred toby counsel, to control the conclusion to which we have been brought by a consider- ation of the language of the Fourteenth Amendment, and of the condi- tion of the Indians at the time of its proposal and ratification. " The Act of July 27, 1868, ch. 249, declaring the right of expatriation CHAP. IV.] ELK v. WILKINS. 589 to be a natural and inherent right of all people, and reciting that ' in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citi- zenship,' while it affirms the right of every man to expatriate himself from one country, contains nothing to enable him, to become a citizea of another, without being naturalized under its authority. 15 Stat. 223 ; Rev. Stat. § 1999. ■ " The provision of the Act of Congress of March 3, 1871, ch. 120, that ' hereafter no Indian nation or tribe within the Territory of the United States shall be acknowledged or recognized as an independent nation, tribe or power with whom the United States may contract by treaty,' is coupled with a provision that the obligation of any treaty already lawfully made is not to be thereby invalidated or impaired; and its utmost possible effect is to require the Indian tribes to be dealt with for the future through the legislative and not through the treaty-making power. 16 Stat. 566 ; Rev. Stat. § 2079. " In the case of United States v. Elm, 23 Int. Rev. Rec. 419, decided by Judge Wallace in the District Court of the United States for the Northern District of New York, the Indian who was held to have a right to vote in 1876 was born in the State of New York, one of the remnants of a tribe which had ceased to exist as a tribe in that State ; and by a statute of the State it had been enacted that any native Indian might purchase, take, hold and convey lands, and, whenever he should have become a freeholder to the value of one hundred dollars, should be liable to taxation, and to the civil jurisdiction of the courts, in the same manner and to the same extent as a citizen. N. Y. Stat. 1843, ch. 87. The condition of the tribe from which he derived his origin, so far as any fragments of it remained within the State of New York, resembled the condition of those Indian nations of which Mr. Justice Johnson said in Fletcher v. Peck, 6 Cranch, 87, 146, that they ' have totally extinguished their national fire, and submitted thernselves to the laws of the States ; ' and which Mr. Justice McLean had in view, when he observed in Worcester v. Georgia, 6 Pet. 515, 580, that in some of the old States, ' where small remnants of tribes remain, surrounded by white population, and who, by their reduced numbers, had lost the power of self-government, the laws of the State had been extended over them, for the protection of their persons and- property.' See also, as to the condition of Indians in Massachusetts, remnants of tribes never recognized by the treaties or legislative or executive Acts of the United States as distinct political communities, Danzell v. Webqidsh, 108 Mass. 133 ; Pells v. Wd)quish, 129 Mass. 469 ; Mass. Stat. 1862, ch. 184 ; 1869, ch. 463. " The passages cited as favorable to the plaintiff from the opinions delivered in Ex parte Kenyan, 5 Dillon, 385, 390, in Ex parte Rey- nolds, 5 Dillon, 394, 397, and in United States v. Crook, 6 Dillon, 453, 464, were obiter dicta. The Case of Reynolds was an indictment in the Circuit Court of the United States for the Western District of 590 ELK V. WILKINS. [CHAP. IV. Arkansas for a murder in the Indian country, of which that court had jurisdiction if either the accused or the dead man was not an Indian, and was decided by Judge Parker in favor of the jurisdiction, upon the. ground that both were white men, and that, conceding the one to be an Indian by marriage, the other never was an Indian in any sense. 5 Dillon, 397, 404. Each of the other two cases was a writ of habeas corpus; and any person, whether a citizen or not, unlawfully restrained of his liberty, is entitled to that writ. Case of the Hottentot Venus, 13 East, 195; Case of Dos Santos, 2 Brock. 493; In re Kaine, 14 How. 103. In Keiiyon's Case, Judge ParKfer held that tlie court in which the prisoner had been convicted had no jurisdiction of the sub- ject-matter, because the place of the commission of the act was beyond the territorial limits of its jurisdiction, and, as was truly said, ' this alone would be conclusive of this case.' 5 Dillon, 390. In United States v. Crook, the Ponca Indians were discharged by Judge Dundy because the military officers who held them were taking them to the Indian Territory by force and without any lawful authority (5 Dillon, 468), and in the case at bar, as the record before us shows, that learned judge concurred in the judgment below for the defendant. " The law upon the question before us has been well stated by Judge Deady in the District Court of the United States for the District of Oregon. In giving judgment against the plaintiff in a case resembling the case at bar, he said: ' Being born a member of "an independent political community" — the Chinook — he was not born subject to the jurisdiction of the United States — ■ not born in its allegiance.' McKay V. Campbell, 2 Sawyer, 118, 134. And in a later case he said: ' But an Indian cannot make himself a citizen of the United States without the consent and co-operation of the government. The fact that he has abandoned his nomadic life or tribal relations, and adopted the habits and manners of civilized people, maj' be a good reason whj' he should be made a citizen of the United States, but does not of itself make him one. To be a citizen of the United States is a political privilege which no one, not born to, can assume without its consent in some form. The Indians in Oregon, not being born subject to the jurisdic- tion of the United States, were not born citizens thereof, and I am not aware of any law or treaty by which any of them have been made so since.' United States v. Osborne, 6 Sawyer, 406, 409. " Upon the question whether any action of a State can confer rights of citizenship on Indians of a tribe still recognized bj' the United States as retaining its tribal existence, we need not, and do not, express an opinion, because the State of Nebraska is not shown to have taken any action affecting the condition of this plaintiff. See Chirac v. Chirac, 2 Wheat. 259 ; Fellows v. Blacksmith, 19 How. 366 ; United States V. Holliday, 3 "Wall. 407, 420; United States v. Joseph, 94 U. S. 614, 618. " The plaintiff, not being a citizen of the United States under the Fourteenth Amendment of the Constitution, has been deprived, of no CHAP. IV.] UNITED STATES V. KAGAMA. 591 right secured by the Fifteenth Amendment, and cannot maintain this action." Judgment affirmed. [Haklan, J., for himself, and Woods, J., gave a dissenting opinion in which it was said that "according to the doctrines of the court, in this case — if we do not wholly misapprehend the effect of its decision — the plaintiff, if born while his parents were members of an Indian tribe, would not be embraced by the amendment, even had he been, at the time it was adopted, a permanent resident of one of the States, sub- ject to taxation, and, in fact, paying property and personal taxes, to the full extent required of the white race in the same State."] ' UNITED STATES v. KAGAMA. SUPEEME COORT OF THE UNITED StATES. 1886. [118 U. S. 375.) Mr. Solicitor- General, for plaintiff in error. Mr. Joseph D. Bedding, for defendants in error. Mr. Justice Miller delivered the opinion of the court. The case is brought here by certificate of division of opinion between the Circuit Judge and the District Judge' holding the Circuit Court of the United States for District of California. The questions certified arise on a demurrer to an indictment against two Indians for murder committed on the Indian reservation of Hoopa Valley, in the State of California, the person murdered being also an Indian of said reservation. Though there are six questions certified as the subject of difference, the point of them all is well set out in the third and sixth, which are as follows : — "3. Whether the provisions of said section 9 (of the Act of Congress of March 3, 1885), making it a crime for one Indian to commit murder ' By the United States Lancl-in-Severalty Act of February 8, 1887, s. 6 (1 Supp. to Eev. St. U. S. 5-36), "Every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States." As to the status of tribal Indians in the different States, see Danzell v. Webquish, 108 Mass, 133; Seneca Nation v. Christie, 126 N. Y. 122; State v. Newell, 24 Atl. Kep. 943 (Maine, 1892) ; The Cherokee Trust Funds, 117 U. S. 288, 303. In the last- named case it is said of eleven or twelve hundred Cherokees who remained at the East when the " Nation " was removed to the West, " They ceased' to be a part of the Cherokee Nation, and henceforth they became citizens of and were subject to the laws of the State in which they resided." In State v. Newell, this language is quoted as applicable to all the Indians of Maine. In Massachusetts by a statute of 1869 (o. 463, , ^ s. 1) all Indians in the State were declared to be " citizens of the Commonwealth." — Ed. 592 UNITED STATES V. KAGAMA. [CHAP. IV. upon another Indiau, upon an Indian reservation situated wholly' witliin the limits of a State of the Union, and making such Indian so commit- ting the crime of murder within and upon such Indian reservation ' sub- ject to the same laws ' and subject to be ' tried in the same courts, and in the same manner, and subject to the same penalties as are all other persons ' committing the crime of murder ' within the exclusive jurisdic- tion of the United States/ is a constitutional and valid law of the United States?" "6. Whether the courts of the United States have jurisdiction or authority to tiy and punish an Indian belongttig to an Indian tribe for committing the crime of murder upon another Indian belonging to the same Indian tribe, both sustaining the usual tribal relations, said crime having been committed upon an Indian reservation made and set apart for the use of the Indian tribe to which said Indians both belong?" The indictment sets out in two counts that Kagama, alias Pactah Billv, an Indian, murdered lyouse, alias Ike, another Indian, at Hum- boldt County, in the State of California, within the limits of the Hoojja Valley Reservation, an.i it charges Mahawaha, alias Ben, also an Indian, with aiding and abetting in the murder. The law referred to in the certiflcate is the last section of the Indian Appropriation Act of that year, and is as follows : — "■§9. That immediatelj- upon and after the date of the passage of this Act all Indians committing against the person or property of another Indian or other person any of the following crimes, namelj-, murder, manslaughter, rape, assault with intent to kill, arson, burglary and lar- ceny, within any Territory of the United States, and either within or without the Indian reservation, shall be subject therefor to the laws of said Territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner, and shall be subject to the same penalties, as are all other persons charged with the commission of the said crimes, respectively ; and the said courts are hereby given juris- diction in all such cases ; and all such Indians committing any of the above crimes against the person or property of another Indian or other person, within the boundai'ies of anj- State of the United States, and •within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States." 23 Stat, ch. 341, 362 ; § 9, 385. The above enactment is clearly separable into two distinqt definitions of the conditions under which Indians may be punished for the same crimes as defined by the common law. The first of these is where the offence is committed within the limits of a territorial government, whether on or oflT an Indian reservation. In tliis class of cases the Indian charged with the crime shall be judged by the laws of the Territory on that subject, and tried by its courts. This proposition itself is new in legislation of Congress, which has heretofore only undertaken to punish CHAP. IV.] UNITED STATES V. KAGAMA. 593 an Indian who sustains the usual relation to his tribe, and who commits the offence in the Indian country, or on an Indian reservation, in excep- tional cases ; as where the ofEence was against the person or property of a white man, or was some violation of the trade and intercourse regulations imposed by Congress on the Indian tribes. It is new, because it now proposes to punish these offences when they are com- mitted by one Indian on the person or property of another. The second is where the offence is committed by one Indian against the person or property of another, within the limits of a State of the Union, but on an Indian reservation. In this case, of which the State and its tribunals would have jurisdiction if the offence was committed b}" a white man outside an Indian reservation, the courts of the United States are to exercise jurisdiction as if the offence had been committed at some place within the exclusive jurisdiction of the United Slates. The first clause subjects all Indians guilty of tliese crimes committed within the limits of a Territory, to the laws of that Territory, and to its courts for trial. The second, which applies solely to offences by Indians which are committed within the limits of a State and the limits of a reservation, subjects the offenders to the lavvs of the United States passed for the government of places under the exclusive jurisdiction of those laws, and to trial by the courts of the United States. This is a still further advance, as asserting this jurisdiction over the Indians within the limits of the States of the Union. Although the offence charged in this indictment was committed within a State and not within a Territory, the considerations which are neces- sary to a solution of the problem in regard to the one must in a large degree affect the other. The Constitution of the United States is almost silent in regard to the relations of the government which was established by it to the numerous tribes of Indians within its borders. In declaring the basis on which representation in the lower branch of the Congress and direct taxation should be apportioned, it was fixed that it should be according to numbers, excluding Indians not taxed, which, of course, excluded nearly all of that race, but which meant that if there were such within a State as were taxed to support- the govern- ment, they should be counted for representation, and in the computation for direct taxes levied by the United States. This expression, exclud- ing Indians not taxed, is found in the XlVth amendment, where it deals with the same subject under the new conditions produced by the eman- cipation of the slaves. Neither of these shed much light on the power of Congress over the Indians in their existence as tribes, distinct from the ordinary citizens of a State or Territory. The mention of Indians in the Constitution which^as received most attention is that found in the clause which gives Congress "power to regulate commerce with foreign nations and among the several" States, and with the Indian tribes." This clause is relied on in the argument in the present case, the VOL. I. — 38 594 UNITED STATES V. KAGAMA. [cHAP. TV. proposition being that the statute under consideration is a regulation of commerce with the Indian tribes. But we think it would be a very strained construction of this clause, that a system of criminal laws for Indians living peaceably in their reservations, which left out the entire code of trade and intercourse laws justly enacted under that provision, and established punishments for the common-law ci'imes of murder, manslaughter, arson, burglary, larceny, and the like, without any refer- ence to their relation to any kind of commerce, was authorized by the \ grant of power to regulate commerce with the Indian tribes. While we are not able to see, in either of these clauses of the Constitution and its amendments, any delegation of power to enact a code of criminal law for the punishment of the worst class of crimes known to civilized life when committed bj^ Indians, there is a suggestion in the manner in which the Indian tribes are introduced into that clause, which maj- have a bearing on the subject before us. The commerce with foreign nations is distinctly stated as submitted to the control of Congress. Were the Indian tribes foreign nations? If so, they came within the first of the three classes of commerce mentioned, and did not need to be repeated as Indian tribes. Were they nations, in the minds of the framers of the Constitution? If so, the natural phrase would have been ''foreign nations and Indian nations," or, in the terseness of language uniformly used bj' the framers of the instrument, it would naturalh- have been " foreign and Indian nations." And so in the case of The Cherokee Nation v. The State of Georgia, 5 Pet. 1, 20, brought in the Supreme Court of the United States, under the declaration that the judicial power extends to suits between a State and foreign States, and giving to the Supreme Court original jurisdiction where a State is a party, it was conceded that Georgia as a State came within the clause, but held that the Cherokees were not a State or nation within the meaning of the Constitution, so as to be able to maintain the suit. Bnt these Indians are within the geographical limits of Ihe United States. The' soil and the- people within, these limits .are. under the political control of the government of the United States, or of the States of the "Union. There exist within the broad domain of sover- eignty but these two. There may be cities, counties, and other organ- ized bodies with limited legislative functions, but they are all derived from, or exist in. subordination to one or the other of these. The terri- torial governments owe all their powers to tlie statutes of the United States conferring on them the powers which they exercise, and which are liable to .be withdrawn, modified, or repealed at any time by Con- gress.\ What authorit}- the State gOA'ernments maj- have to enact crimi- nal lawsror the Indians will be presently considered. But this power of Congress to organize territorial governments, and make laws for their inhal)itants, arises not so much from the clause in the Constitution in reo^ard to disposing of and making rules and regulations concerning the Territory and other property of the United States, as from the V ownership of the country in which the Territories are, and the right of CHAP. IV.] UNITED ■ STATES i^. KAGAMA. 595 exclusive sovereignty which must exist in the national government, and can be found nowhere else. Murphy v. Ramsey, 114 U. S. 15, 44. In the case of American Ins. Co. v. Canter., 1 Pet. 511, 542, in ■which the condition of the people of Florida, then under a territorial government, was under consideration, Marshall, Chief Justice, said : "Perhaps the power of governing a Territory' belonging to the United States, which has not, by becoming a State, acquired the means of self- government, may result necessarily from the fact that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned." In the case of the United States y. Bogers, 4 How. 567, 572, where a white man pleaded in abatement to an indictment for murder com- mitted in the countr}' of the Cherokee Indians, that he had been adopted by and become it member of the Cherokee tiibe, Chief Justice Taney said: "The country in which the crime is charged to have been com- mitted is a part of the territory of the United States, and not within , the limits of any particular State. It is true it is occupied by the Cherokee Indians. But it has been assigned to them by the United States as a place of domicil for the tribe, and the}' hold with the assentf of the United States, and under their authority." After referring to the policy of the European nations and the United States in asserting dominion over all the country discovered by them, and the justice of this course, he adds : ^Bnt had it been otherwise, and were the right and the propriety of exercising this power now open to question, yet it is a question for the law-making and political departments of the gov- ernment, and not for the judicial. It is our duty to expound and execute the law as we find it, and we think it too firmly and clearly established to admit of dispute, that the Indian tribes, residing within tlie territorial limits of the United States, are subject to their ■authority, and when the country Occupied by one of them is not Within the limits of one of the States, Congress may by law punish any offence committed there, no matter whether the offender be a white man or an Indian." The Indian reservation in the case before us is land bought by the United States from Mexico by the treaty of Guadaloupe Hidalgo, and the whole of California, with the allegiance of its Inhabitants, many of whom were Indians, was transferred by that treaty to the United States. The relation of the Indian tribes living within the borders of the United States, both before and since the Eevolution, to the people of the United States has always been an anomalous one and of a complex character. Following the policy of the European governments in the discovery of America towards the Indians who were found here, the colonies before the Revolution and the ^tates and the United States since, have recognized in the Indians a possessory right to the soil over which they 596 UNITED STATES V. KAGAMA. [CHAP. IT. roamed and hunted and established occasional villages. But they asserted an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or peoples without the consent of this paramount authority. When a tribe wished to dis- pose of its land, or any part of it, or the State or the United States wished to purchase it, a treaty with the tribe was the onlj- mode in which this could be done. The United States recognized no right in pri\'ate persons, or in other nations, to make such a purchase bj' treaty or otherwise. With the Indians themselves these relations are equalh' difficult to define. They were, and alwaj's have been, regarded as having a semi-indepeijdent position when thej- preserved their tribal relations ; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided. Perhaps the best statement of their position is found in the two opin- ions of this court by Chief Justice Marshall in the case of The Cherokee Nation v. Georgia, 5 Pet. 1, and in the case of Worcester v. State of Georgia, 6 Pet. 615, 536. These opinions are exhaustive; and in the separate opinion of Mi-. Justice Baldwin, in the former, is a veiy valu- able resum^ of the treaties and statutes concerning the Indian tribes previous to and during the confederation. In the first of the above cases it was held that these tribes were neither States nor nations, had only some of the attributes of sover- eigntj-, and could not be so far recognized in that capacity as to sustain a suit in the Supreme Court of the United States. In the second case it was said that they were not subject to the jurisdiction asserted over them by the State of Georgia, which, because they were within its limits, where they had been for ages, had attempted to extend her laws and the jurisdiction of her courts over them. In the opinions in these cases they are spoken of as "wards of the nation," "pupils," as local dependent communities. In this spirit the United States has conducted its relations to tliem from its organization to this time. But, after an experience of a hundred years of the treaty- making system of government, Congress has determined upon a new departure — to govern them by Acts of Congress. This is seen in the Act of March 3, 1871, embodied in § 2079 of the Eevised Statutes : " ^^o Indian nation or tribe, within the territory of the United States, shall be acknowledged or recognized as an independent nation, tribe, or power, with whom the United States may contract by treaty ; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March third, eighteen hundred and seventy-one, shall be hereby invalidated or impaired." The case of Crow Dog, 109 U. S. 656, in which an agreement with the Sioux Indians, ratified by an Act of Congress, was supposed to extend over them the laws of the United States and the jurisdiction of CHAP. IV.] UNITED STATES V. KAGAMA. 597 its courts, covering murder and other grave crimes, shows the purpose of Congress in this new departure. The decision in that case admits that if the intention of Congress had been to punish, by the United States courts, the murder of one Indian by another, the law would have been valid. But the court could not see, in the agreement with the Indians sanctioned by Congress, a purpose to repeal § 2146 of the Re- vised Statutes, which expressly excludes from that jurisdiction the case of a crime committed by one Indian against another in the Indian country. The passage of the Act now under consideration was designed to remove that objection, and to go further by including such crimes on reservations lying within a State. Is this latter fact a fatal objection to the law? The statute itself contains no' express limitation upon the powers of a State or the juris- diction of its courts. If there be any limitation in either of these, it grows out of the implication arising from the fact that Congress has defined a crime committed within the State, and made it punishable in the courts of the United States. But Congress has done this, and can do it, with regard to all offences relating to matters to which the Federal authority extends. Does that authority extend to this case ? It will be seen at once that the nature of the offence (murder) is one which in almost all cases of its commission is punishable by the laws of the States, and within the jurisdiction of their courts. The distinction is claimed to be that the ofl'ence under the statute is committed by an Indian, that it is committed on a reservation set apart within the State for residence of the tribe of Indians by the United States, and the fair inference is that the offending Indian shall belong to that or some other tribe. It does not interfere with the process of the State courts within the reservation, nor with the operation of State laws upon white people found there. Its effect is confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation. It seems to us that this is within the competency of Congress. These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their dfiadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recog- nized by the Executive and by Congress, and by this court, whenever the question has arisen. In the case of Worcester v. The State of Georgia, above cited, it was held that, though the Indians had by treaty sold their land within that State, and agreed, to remove away, which they had failed to do, the State could not, while they remained on those lands, extend its laws, criminal and civil, over the tribes ; that the duty and power to compel 598 UNITED STATES V. KAGAMA. [OHAP. IV. their removal was in the United States, and the tribe was under their protection, and could not be subjected to the laws of the State and the process of its courts. The same thing was decided in the case of Fellows v. Blacksmith & Others, 19 How. 366. In this case, also, the Indians had sold their lands under supervision of the States of Massachusetts and of New York, and had agreed to remove within a given time. When the time came a suit to recover some of the land was brought in the Supreme Court of New York, which gave judgment for the plaintiff. But this court held, on writ of error, that the State CQjpld not enforce this removal, but the duty and the power to do so was in the United States. See also the case of the Kajisus Indians, 5 Wall. 737 ; N'ew York Indians, b Wall. 761. The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary- to their protection, as. well as to the safet)- of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geo- graphical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes. We answer the questions propounded to us, that the 9th section of the Act of March, 1885, is a valid law in both its branches, and that the Circuit Court of the United /States for the District of California has jurisdiction of the offence charged in the indictment in this case?- 1 See also Gon-shay-ee, Pet'r, 130 U. S. 343 (1889), and U. S. v. Osborne, 6 Sawyer, U. S. C. C. Rep. (Oregon) 406 (1880). The legal and political condition of the tribal Indians was carefully treated, in 1891, in two articles entitled "A People without Law," in the October and November numbers of the " Atlantic Monthly," Vol. 68, pp. 540, 676. Of the leading modern statutes, of general application, relating to these people, it is there said (p. 67§) : "Three impor- tant laws regarding the Indians remain to be mentioned, one of which was incorporated in the Revised Statutes. " (a) A statute of March 3, 1871, reads : ' No Indian nation or tribe within the terri- tory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty,' — saving, how- ever, the obligation of previous treaties. . . . Yet we do make 'agreements' with them as with a separate people ; and the chief result of this law is, and was intended to be, that it is no longer the President and Senate (the treaty-making power) that conclude these measures, but the legi.'ilative body, Congress. This statute was the result of a struggle on the part of the House of Representatives to share in these pro- ceedings, and wa.s forced upon the Senate on the last day of a session by putting it into an appropriation bill. It was thought at the time by so competent an observer as General Walker, formerly Commissioner of Indian Affairs, to be ' a deadly blow at the tribal autonomy ; ' and so it was, in the logic of it. But the step was not then followed np, for it did not represent any clear determination of Congress to end the old methods ; and this strange notion of refusing to make treaties with a people with whom we con- tinue to go to war has remained on our statute-book as another of the many anomalies that mark our Indian policy. . . . " (b) The second statute is that of March 3, 1885. It followed np timidly the logic of the law of 1871, though for only a step or two ; but it marked the greatest advance yet CHAP. IV.j UNITED STATES V. KAGAMA. 599 reached in the process of assuming the direct government of the Indians. The law provided tliat thereafter Indians should be punished for committing upon Indians or others any one of seven leading crimes (murder, manslaughter, assault with intent to kill, rape, arson, burglary, or larceny) : if in a Territory (whether on or off a reservar tion), under the territorial laws and iu the territorial courts; and if in a State and on a reservation, then under the same laws and iu the same courts as if the act were done in a place within the exclusive jurisdiction of the United States. This is a very impor- tant statute. In principle it claims for the United States full jurisdiction over the Indians upon their reservations, whether iu a State or Territory. Heretofore, the laws, for example, the statute of 1817 and the renewals of it, had excepted the acts of Indians committed upon their fellows within the Indiuu country. The acts of Indians against white persons or of whites against Indians had been dealt with, but the internal economy of Indian government was not invaded in its dealing or refusing to deal with the rela- tions of members of the tribe to one another. The constitutionality, even, of such legislation as this of 1885 had been denied. Judges had been careful to avoid asserting this full power in cases where the reservation was iu a State. Thus the Supreme Court of the United States, iu 1845, in holding good the law of 1817, which punished (in this particular case) the act of a white man against a white man in the Indian country, among the Cherokees, said : ' Where the country occupied by them is not within the limits of one of the States, Congress may by law punish any offence committed there, no matter Whether the offender be a white man or an Indian.' In 1834, Mr. Justice McLean had denied the power of Congress to legislate in this way for an Indian reser- vation in a State, while admitting it in a Territory; and in December, 1870, the judi- ciary committee of the Senate of the United States even went so far as to say, 'An Act of Congress which should assume to treat the members of a tribe as subject to the municipal jurisdiction of the United States would he unconstitutional and void.' But the air was at last cleared in 1886, when the Supreme Court of the United States had to deal with tlie indictment, under this statute, of one Indian for the murder of another Indian on a reservation in the State of California. . . . " The existence of this right and power, and the clear and authoritative declaration of it by the Supreme Court of the United States for the first time in 1 886, have brought home to the Congress of the United States and to us all, now within these recent years, a great weight of responsibility. It may have been thought possible before to deny the legal power fully to govern the Indians. It cannot be denied now. Under such cir- cumstances, the mere neglect or refusal to act is itself action, and action of the worst kind. " (c) The third and last of these statutes -^ and the last upon which I shall comment — is the General Land-in-Severalty Law (often known as the Dawes Bill). This was passed in February, 1887, within nine months of the great decision upon which I have just been remarking: the dates are May 10, 1886, and February 8, 1887. But it was pending in Congress at the time of that decision, and had long been pending there under bitter opposition. This great enactment opens the way, within a generation or. two, to settle the whole Indian question. Whether it is to be regarded as a good law or a bad one, however, depends on the moderation with which it "is administered. The peculiarity of it is not that its methods are new, for similar arrangements had repeatedly been made, for a score of years before, in the case of particular tribes, as the Winne- bagoes in 1863, the Stockbridge Munsee Indians in 1871, the Utes in 1880, and the Omahas in ] 882. But now, by a general law applicable to all reservations, the Presi- dent is given power to make almost every reservation Indian outside the civilized tribes a land-owner in severalty and a citizen of the United States against his will. The right of citizenship is made to follow the ownership of land." See also a valuable article on "The Legal Status of the Indian," by George F. Canfield, Esq,, now of the Bar of the City of New York, in 15 Am. Law Bev. 21 (1881). — Ed. 600 MUKEAY v. HOBOKEN LAND, ETC. 00. [CHAP. IV. DEN d. MUKRAY et al.u. THE HOBOKEN LAND, etc. COMPANY. Supreme Court of the United States. 1855. [18 ^010. 272.] 1 Mr. Van Winkle and Mr. Wood, for the plaintiffs. Mr. Zabriskie, Mr. GUlett, Mr. Butler, and Mr. Bradley, for tiie defendants. Mr. Justice Curtis delivered the opinion of the court. This ease comes before us on a certificate of division of opinion of the judge's of the Circuit Court of the United States for the District of New Jersey. It is an action of ejectment, in which both parties claim title under Samuel Swartwout — the plaintiffs, under the levy of an execution on the 10th day of April, 1839, and the defendants, under a sale made by the marshal of the United States for the District of New Jersey, on the 1st day of June, 1839 — hy virtue of what is de- nominated a distress warrant, issued by tlie solicitor of the treasurj' *" under the Act of Congress of May 15, 1820, entitled, "An Act pro- viding for the Better Organization of the Treasury Department." This Act having provided, by its first section, that a lien for the amount due should exist on the lands of the debtor from the time of the levj- and record thereof in the oflflce of the District Court of the United States for the proper district, and the date of that levy in this case beihg prior to the date of the judgment under which the plaintiffs' title was made, the question occurred iu the Circuit Court, " whether the said warrant of distress in the special verdict mentioned, and the proceedings thereon and anterior thei-eto, under which the defendants claim title, are suffi- cient, under the Constitution of the Ujiited States and the law of the land, to pass and transfer the title and estate of the said Swartwout in and to the premises in question, as against the lessors of the plaintiff." Upon this question, tlie judges being of opposite opinions, it was certi- fied to this 'court, and has been argued by counsel. No objection has been taken to the warrant on account of any defect ^ or irregularity in the proceedings which preceded its issue. It is not denied that they were in conformity with the requirements of the Act of Congress. The special verdict finds tliat Swartwout was collector of tlie customs for the port of New York for eight years before the 29th of March, 1838 : that, on the 10th of November, 1838, his account, as such collector, was audited by the first auditor, and certified by the first comptroller of the treasury ; and for the balance thus found, amount- ing to the sum of $1,374,119 ^, the warrant in question was issued ^ by the soli(!itor of the treasury. Its validity is denied by the plaintiffs, npon the ground that so much of the Act of Congress as authorized it, is in conflict with the Constitution of the United States. 1 The statement of facts is omitted. — Ed. CHAP. IV.J MURRAY V. HOBOKBN LAND, ETC. CO. 601 In support of this position, the plaintiff relies on that part of the first section of the third article of the Constitution which requires the ^ judicial power of the United S.tates to be vested in one Supreme Court and in such inferior courts as Congress may, from time to time, ordain and establish ; the judges whereof shall hold their offices during good behavior, and shall, at stated times, receive for their services a compen- sation, which shall not be diminished during their continuance in office. Also, on the second section of the same article, which declares that the judicial power shall extend to controversies to which the United States shall be a partj'. It must be admitted that, if the auditing of this account, and the ascertainment of its balance, and the issuing of this process, was an exercise of the judicial power of the United States, the proceeding "^ ■was void ; for the officers who performed these Acts could exercise no part of that judicial power. They neither constituted a court of the-i United States, nor were they, or either of them, so connected with any such court as to perform even any of the ministerial duties which arise I out of judicial proceedings. The question, whether these Acts were an exercise of the judicial power of the United States, can best be considered under another inquiry, raised by the further objection of the plaintiff, that the effect of the proceedings authorized by the Act in question is to deprive the part^-, against whom the warrant issues, of his liberty and property,) "without due process of law;" and, therefore, is in conflict with the fifth article of the amendments of the Constitution. Taking these two objections together, they raise the questions, ■whether, under the Constitution of the United States, a collector of the customs, from whom a balance of account has been found to be due by accounting officers of the treasury, designated for that purpose by law, can be deprived of his liberty, or property, in order to enforce payment of that balance, without the exercise of the judicial power of I the United States, and yet by due process of law, within the meaning I of those terms in the Constitution ; and if so, then, secondly, whether I the warrant in question was such due process of law? The words, "due process of law," were undoubtedly- intended to convey the same meaning as the words, " by the law of the land," in ^ Magna Charta. Lord Coke, in his commentary on those words (2 Inst. 50), says they mean due process of law. The constitutions which had been adopted by the several States "before the formation of the Federal Constitution, following the language of the great charter more closely, generally contained the words, " but by the judgment of his peers, or the law of the land." The ordinance of Congress of July 13, 1787, for the government of the territory of the United States northwest of the river Ohio, used the same words. The Constitution of the United States, as adopted, contained the provision, that "the trial of all crimes, except in cases of impeach- v ment, shall be by jury." When the fifth article of amendment contain- 602 MUEEA.Y V. HOBOKEN LAND, ETC. CO. [CHAP. IV. ing the words now in question was made, the trial by jurj' in criminal cases had thus alreadj' been provided for. B^- the sixth and seventh articles of amendment, further special provisions were separately made for that mode of trial in civil and criminal cases. To have followed, as in the State constitutions, and in the ordinance of 1787, the words of Magna Charta, and declared that no person shall be deprived of his life, liberty-, or property but by the judgment of his peers or the law of the land, would have been in part superfluous and inappropriate. To have taken the clause, " law of the" land," without its 'immediate con- text, might possibly have given rise to doubts, which would be eflfect- ^ ually dispelled by using those words which the great commentator on Magna Charta had declared to be the true meaning of the phrase, "law of the land," in that instrument, and which were undoubtedlj' then received as their true meaning. That the warrant now in question is legal process, is not denied. It was issued in conformit3- with an Act of Congress. But is it " due ^ process of law"? The Constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare wh&t principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on ^ the legislative as well as on the executive and judicial powers of tlie 'governmeni, and cannot be so construed as to leave Congress free to jmake any process "due process of law," b3- its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by Congress, is due process ? To this the answer must be two- fold. We must examine the Constitution itself, to see whether this ^ process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and. modes of proceeding \ existing in the common and statute law of England, before the emigra- \tion of our ancestors, and which are shown not to have been uusuited to their civil and political condition by having been acted on by them after the settlement of this country. We apprehend there has been no period, since the establishment of the English monarch}', when there has not been, by the law of the land, a summary method for the re- covery of debts due to the Crown, and especially those due from receivers of the revenues. It is diflScult, at this day, to trace with precision all the proceedings had for these purposes in the earliest ages of the common law. That they were summary and severe, and had been used for purposes of oppression, is inferable from the fact that one chapter of Magna Charta treats of their restraint. It declares : " We or our bailiffs shall not seize any land or rent for any debt as long as the present goods and chattels of the debtor do suffice to pay the debt, and the debtor himself be ready to satisfy therefor. Neither shall the pledges of the debtor be distrained, as long as the principal debtor is sufficient for the payment of the debt; and if the principal debtor fail in payment of the debt, having nothing wherewith to pay, or will C3AP. IV.] MURRAY V. HOBOKEN LAND, ETC. CO. 603 not i)ay where he is able, the pledges shall answer for the debt. And if they will, they shall have the lands and rents of the debtor until they be satisfied of the debt which they before paid for him, except that the principal debtor can show himself to be acquitted against the said sureties." By the common law, the body, lands, and goods of the king's debtor were liable to be levied on to obtain payment. In conformity with the «' above provision of Magna Charta, a conditional writ was framed, com- manding the sheriflf to inquire of the goods and chattels of the debtor, and, if tliey were insufficient, then to extend on tlie lands. 3 Co. 12 b; Cora. Dig., Debt, G. 2 ; 2 Inst. 19. But it is said that since the statute 33 Hen. VIII. c. 39, the practice has been to issue the writ in an abso- lute form, without requiring any iJi'evious inquisition as to the goods, Gilbert's Exch. 127. To autliorize a writ of extent, however, the debt must be matter of record in the king's exchequer. The 33 Hen- VIII. c. 39, §50, made all specialty debts due to the king of the same force and effect as debts by statute staple, thus giving to such debts the effect of debts of record. In regard to debts due upon simple contract, other than those due from collectors of tlie revenue and other accountants of the Crown, the practice, from very ancient times, has been to issue a commission to inquire as to the existence of the debt. This commission being returned, the debt found was thereby evi- . denced by a record, and an extent could issue thereon. No notice was required to be given to the alleged debtor of the execution of this commission (2 Tidd's Pr. 1047), though it seems that, in some cases, an order for notice might be obtained. 1 Ves. 269. Formerly, no witnesses were examined by the commission (Chitty's Prerog, 267 ; West, 22) ; the affidavit prepared to obtain an order for an immediate extent being the only evidence introduced. But this practice has been , recently changed. 11 Price, 29. By the statute 13 Eliz. ch. 4, balances due from receivers of the revenue and all other accountants of the Crown were placed on the same footing as debts acknowledged to be due by statute staple. These balances were found by auditors, the particular officers acting thereon having been, from time to time, varied by legislation and usage. The different methods of accounting in ancient and modern times are described in Mr. Price's Treatise on the Law and Practice of the Exchequer, ch. 9. Such balances, when found, ^^ were certified to what was called the pipe office, to be given in charge to the sheriffs for their levy. Price, 231. If an accountant failed to render his accounts, a process was issued, termed a capias nomine districtionis, against the body, goods, and lands of the accountant. Price, 162, 233, note 3. This- brief sketch of the modes of proceeding to ascertain and enforce payment of balances due from receivers of the revenue in England, is sufficient to show that the methods of ascertaining the existence and amount of such debts, and compelling their payment, have varied 604 MURRAY V. HOBOKEN LAND, ETC. CO. [CHAP. IV. widely from the usual course of thg common law on other subjects ; and that, as respects such debts due from such officers, "the law of the land " authorized the emplo3'ment of auditors, and an inquisi- tion without notice, and a species of execution bearing a very close resemblance to what is termed a warrant of distress in the Act of 1820, now in question. It is certain that this diversity in "the law of the land" between public defaulters and ordinary debtors was understood in this countrj', and entered into the legislation of the colonies and provinces, and more especially of the States, after the Declaratioft of Independence and be- fore the formation of the Constitution of the United States. Not only was the process of distress in nearly or quite universal use for the 'collection of taxes, but what was generallj-.termed a warrant of distress, running against the body, goods, and chattels of defaulting receivers of public money, was issued to some public officer, to whom was com- mitted the power to ascertain the amount of the default, and by such warrant proceed to collect it. Without a wearisome repetition of details, it will be sufficient to give one section from the Massachusetts Act of 1786 : " That if any constable or collector, to whom an^- tax or assessment shall be committed to collect, shall be remiss and negligent of his duty, in not levying and pajnng unto the treasurer and receiver- general such sum or sums of mone^- as he shall from time to time have received, and as ought by him to have been paid within the respective time set and limited b3- the assessor's warrant, pursuant to law, the treasurer and receiver-general is hereby' empowered, after the expira- tion of the time so set, by warrant under his hand and seal, directed to the sheriff or his deputy, to cause such sum and sums of mone}- to be levied by distress and sale of such deficient constable or collector's estate, real and personal, returning the overplus, if any there be ; and, for want of such estate, to take the body of such constable or collector, and imprison him until he shall pay the same ; which warrant the sheriff or his deputy is hereby empowered and required to execute accordingly." Then follows another provision, that if the deficient sum shall not be made by the first warrant, another shall issue against the town ; and if its proper autliorities shall fail to talce the prescribed means to raise and pay the same, a like warrant of distress shall go against the estates and bodies of the assessors of such town. Laws of Massachusetts, vol. i. p. 266. Provisions not distinguishable from these in principle may be found in the Acts of Connecticut, Revision of 1784, p. 198 ; of Pennsylvania, 1782, 2 Laws of Penn. 13 ; of South Carolina, 1788, 5 Stats, of S. C. 55; New York, 1788, 1 Jones & Varick's Laws, 34 ; see also 1 Henning's Stats, of Virginia, 319, 343 ; 12 Ibid. 562 ; Laws of Vermont, 1797, 1800, 340. Since the formation of the Constitution of the United States, other States have passed similar laws. See 7 Louis. An. R. 192. Congress, from an early period, and in repeated instances, has legislated in a similar manner. By the fifteenth section of the "Act to lay and collect a direct tax CHAP. IV.] MURRAY V. HOBOKEN LAND, ETC. CO. 605 within the United States/' of July 14, 1798, the supervisor of each district was authorized find required to issue a warrant of distress against any delinquent collector and his Sureties, to be levied upon the goods and chattels, and for want thereof upon the body of such col- lector; and, failing of satisfaction thereby, upon the goods and chat- tels of the sureties. 1 Stats, at Large, 602. And again, in 1813, 3 Stats, at Large, 33, § 28, and 1815, 3 Stats, at Large, 177, § 33, the comptroller of the treasury was empowered to issue a similar warrant against collectors of the customs and their sureties. This legislative construction of -the Constitution, commencing so early in the govern- ment, when the first occasion for this manner of proceeding arose, continued throughout its existence, and repeatedly acted on by the judici- arj' and the executive, is entitled to no inconsiderable weight upon the question whether the proceeding adopted by it was "due process of law." Prigg v. Pennsylvania, 16 Pet. 621 ; United States v. JVburse, 9 Pet. 8 ; Randolph's Case, 2 Brock. 447 ; Nourse's Case, 4 Cranch, C. C. R. 151 ; Bullock's Case, cited 6 Pet. 485, note. Tested by the common and statute law Of England prior to the emi- gration of our ancestors, and by the laws of many of the States at the time of the adoption of this amendment, the proceedings authorized by ^ the Act of 1820 cannot be denied to be due process of law, when applied to the ascertainment and recovery of balances due to the ' government from a collector of customs, unless there exists in the Constitution some other provision which restrains Congress from author- izing such proceedings. For, though "due process of law" generally implies and includes, actor, reus, judex, regular allegations, opportunity to answer, and a trial according tasome settled course of judicial pro- ceedings (2 Inst. 47, 50 ; Hoke v. Henderson, 4 Dev. N. C. Rep. 15 ; Taylor v. Porter, 4 Hill, 146 ; Van Zandt v. Waddel, 2 Yerger, 260 ; State Bank v. Cooper, Ibid. 599 ; Jones's Heirs v. Perry, 10 Ibid. 59 ; Greeney. Briggs, 1 Curtis, 311), yet, this is not universally true. There may be, and we have seen that there are, cases, under the law of Eng- land after Magna Charta, and as it was brought to this country and acted on here, in which process, in its nature final, issues againat the body, lands, and goods of certain public debtors without any such trial ; and this brings us to the question, whether those provisions of the Con- stitution which relate to the judicial power are incompatible with these proceedings ? That the auditing of the accounts of a receiver of public moneys may b^, in an enlarged sense, a judicial act, must be admitted. So are " all those administrative duties the performance of which involves an inquiry into the existence of facts and the application to them of rules of law. In this sense the act of the President in calling out the militia under the Act of 1795, 12 Wheat. 19, or of a commissioner who makes a certificate for the extradition of a criminal, under a treaty, is judicial. But it is not sufficient to bring such matters under the judicial power, that they involve the exercise of judgment upon law and fact. United 606 MURRAY V. HOBOKEN LAND, ETC. CO. [cHAP. IV. States V. Ferreira, 13 How. 40. It is necessary to go further, and show not only that the adjustment of the balances due from accounting .officers may be, but from their' nature must be, controversies to which the United States is a party, witliin the meaning of the second section of the third article of the Constitution. We do not doubt the power of Congress to provide by law that such a question shall form the subject-matter of a suit in which the judicial power can be exerted. The Act of 1820 makes such a provision for reviewing the decision of the accounting officers of the treasury. But, until reviewed, it is final and binding ; and the question is^ whether iffi subject-matter is neees- ,sarily, and without regard to the consent of Congress, a judicial con- troversy. And we are of opinion it is not. Among the legislative powers of Congress are the powers "to laj* and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and welfare of the United States ; to raise and support armies ; to provide and maintain a nav^- ; and to make all laws which may be necessary a,nd proper for carrj'ing into execution those powei-S." What officers should be appointed to collect the revenue thus authorized to be raised, and to disburse it in payment of the debts of the United States ; what duties should be required of them ; when and bow, and to whom they should account, and what security they should furnish, and to what remedies they should be subjected to enforce the proper dis- charge of their duties. Congress was to determine. In the exercise of their powers, they have required collectors of customs to be appointed; made it incumbent on them to account, from time to time, with cer- tain officers of the treasury department, and to furnish sureties, by bond, for the payment of all balance's of the public mone}' which may become due from them. And by the Act of 1820, now in question, they have undertaken to provide summary means to compel these officers — and in case of their default, their sureties — to pay such balances of the public money as may be in their hands. The power to collect and disburse revenue, and to make all laws Which shall be necessary and proper for carrying that power into effect; includes all known and appropriate means of effectually collecting and disbursing that revenue, unless some such means should be forbidden in some other part of the Constitution. The power has not been ex- hausted by the receipt of the money by the collector. Its purpose is to raise money and use it in payment of the debts of the government ; and, whoever may have possession of the public money, until it is actually disbursed, the power to use those known and appropriate means to secure its due application continues. As we have already shown, the means provided by the Act of 1820, .do not differ in principle from those employed in England from remote antiquity — and in manj- of the States, so far as we know without objection — for this purpose, at the time the Constitution was formed. It may be added, that probably there are few governments which do or can permit their claims for public taxes, either on the citizen or the CHAP. IV.] MUEKAY V. HOBOKEN LAND, ETC. CO. 607 officer emploj'ed for their collection or disbursement, to become subjects of judicial controversy, according to the course of the law of the land. Imperative necessity has forced a distinction between such claims and all others, which has sometimes been carried out by summary raetliods of proceeding, and sometimes by systems of fines and penalties, but always in some way observed and yielded to. It is true that in Jlngland all these proceedings were had in what is denominated the Court of Exchequer, in which Lord Coke saj-s, 4 Inst. 115, the barons are the sovereign auditors of the kingdom. But the barons exercise in person no judicial power in auditing accounts, and it is necessary to remember that the Exchequer includes two distinct or- ganizations, one of which has charge of the revenues of the Crown, and the other has long been in fact, and now is for all purposes, one of the judicial courts of the kingdom, whose proceedings are and have been as distinct, in most respects, fi'om those of the revenue side of the Ex- chequer, as the proceedings of the Circuit Court of this district are from those of the treasury ; and it would be an unwarrantable assumi>- tion to conclude that, because the accounts of receivers of revenue were settled in wliat was denominated the Court of Exchequer, they were judicial controversies between the king and his subjects, according to the ordinary course of the common law or equity. The fact, as we have already seen, was otherwise. It was strongly urged by the plaintiff's counsel, that though the government might have the rightful power to provide a summary remedy for the recovery of its public dues, aside from any exercise of tiie judicial power, yet it had not done so in this instance. That it had enabled the debtor to apply to the judicial power, and having thus brought the subject-matter under its cognizance, it was not for the government to say that the subject-matter was not within the judicial power. That if it were not in its nature a judicial controversy, Con- gress could not make it such, nor give, jurisdiction over it to the district courts. In short, the argument is, that if this were not, in its nature, a judicial controversy. Congress could not have conferred on the district court power to determine it upon a bill filed by the collector. If it be such a controversy, then it is subject to the judicial power alone ; and the fact that Congress has enabled the district court to pass upon it, iS'Conclusive evidence that it is a judicial controversy. We cannot admit the correctness of the last position. If we were bf opinion that this subject-matter cannot be the subject of a judicial controversy, and that, consequently, it cannot be made a subject of judicial cognizance, the consequence would be, that the attempt to bring it under the jurisdiction of a court of the United States would be ineffectual. But the previous proceedings of tlie executive depart- ment would not necessarily be affected thereby. They might be final, instead of being subject to judicial review. But the argument leaves out of view an essential element in the case, and also assumes soaifithing which cannot be admitted. 608 MURRAY V. HOBOKEN LAND, ETC. CO. [CHAP. IV. It assumes that the entire subject-matter is or is not, in everj- mode of presentation, a judicial controversy, essentially- and in its own nature, aside from the will of Congress to permit it to be so ; and it leaves out of view the fact that the United States is a party. It is necessarj' to take into view some settled rules. Though, generally, both public and private wrongs are redressed through judicial action, there are more summary extra-judicial remedies for both. An instance of extra-judicial redress of a private wrong is, the recapture of goods by their lawful owner; of a public. wiong, bj- a private per.son, is the abatement of a puWic nuisance ; and the re- covery of public dues b}' a summary' process of distress, issued by some public officer authorized by law, is an instance of redress of a particular kind of public wrong, by the act of the public through its authorized agents, There is, however, an important distinction be- tween these. Though a private person may retake his property, or abate a nuisance, he is directly responsible for his acts to the proper judicial tribunals. His authority to do these acts depends not merely on the law, but upon the existence of such facts as are, in point of law, sufficient to constitute that authorit3- ; and he may be required, by an action at law, to prove those facts ; but a public agent, who acts pursuant to the command of a legal precept, can justify- his act by the production of such precept. He cannot be made responsible in a judicial tribunal for obeying the lawful command of the government; \^nc\ the government itself, which gave the command, cannot be sued without its own consent. At the same time there can be no doubt that the mere question, whether a collector of the customs is indebted to the United States, 'may be one of judicial cognizance. It is competent for the United States to sue any of its debtors in a court of law. It is equally clear that the United States may consent to be sued, and may yield this consent upon such terms and under such restrictions as it may think just. Though both the mai'shal and the government are exempt from suit, for anything done by thfe former in obedience to legal process, still, Congress may provide by law, that both, or either, shall, in a particu- lar class of cases, and under such restrictions as they may think proper to impose, come into a court of law or equity and abide by its deter- mination. The United States may thus place the government upon the same ground which is occupied by private persons who proceed to take extra-judicial remedies for* their wrongs, and they ma}- do so to such extent, and with such restrictions, as may be thought fit. When, therefore, the Act of 1820 enacts, that after the levy of the distress warrant has been begun, the collector may bring before a dis- trict court the question, whether he is indebted as recited in the warrant, it simply waives a privilege which belongs to the government, and consents to make the legality of its future proceedings dependent on the judgment of the court ; as we have already stated in case of a private person, every fact upon which the legality of the extra-judicial CHAP. IV.] MUKRAY V, HOBOKEN LAND, ETC. CO. 609 remedy depends may be drawn in question bj' a suit against him. The United States consents that this fact of indebtedness may be drawn in question by a suit against them. Though they might have withheld their consent, we thinlc that, by granting it, nothing which maj' not be a subject of judicial cognizance iu brought before the court. To avoid misconstruction upon so grave a subject, we think it proper, to state that we do not consider Congi'ess can either withdraw from judicial cognizance any mattet which, from its nature, is the subject of a suit at the common law, or in equitj', or admiralty ; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination. At the same time there are matters, involving public rights, which may be presented^ in snch form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper. Equitable claims to land by the inhab- itants of ceded territories form a striking instance of such a class of cases ; and as it depends upon the will of Congress whether a remedy in the courts shall be allowed at all, in such cases, they maj' regulate it and prescribe such rules of determination as thej' may think just and needful. Thus it has been repeatedly decided in this class of cases, that upon their trial the acts of executive officers, done under the authority of Congress, were conclusive, either upon particular facts involved in the inquiry or upon the whole title. Foley v. Harrison, 15 How. 433 ; Burgess v. Gray, 16 How. 48 ; v. The Minnesota Mining Company at the present term. It is true, also, that even in a suit between private persons to trj' a question of private right, the action of the executive power, upon a matter committed to its determination by the Constitution and laws, is conclusive. Luther v. Borden, 7 How. 1 ; Boe v. Braden, 16 How. 635. To apply these principles to the case before us, we say that, though a suit may be brought against the marshal for seizing propertj' under Such a warrant of distress, and he may be put to show his justification ; yet the action of the executive power in issuing the warrant, pursuant to the Act of 1820, passed under the powers to collect and disburse the revenue granted by the Constitution, is conclusive evidence of the facts recited in it, and of the authority to make tiie levy ; that though no - suit can be brought against the United States without the consent of Congress, yet Congress may consent to have a suit brought, to try the question whether the collector be indebted, that being a subject capable of judicial determination, and may empower a court to act on that determination, and restrain the levy of the warrant of distress within the limits of the debt judicially found to exist. It was further urged that, by thus subjecting the proceeding to the determination of a court, it did conclusively appear that there was no such necessity for a summar3' remedy, bj- the action of the executive VOL. I. — 39 610 DAVIDSON V. NEW ORLEANS. [CHAP. IV. power, as was essential to enable Congress to authorize this mode of proceeding. But it seems to us that the just inference from the entire law is, that there was such a necessit}' for the warrant and the commencement of the levy, but not for its completion, if the collector should interpose, and file his bill and give security. The provision that he maj' file his bill and give securitj', and thus arrest the summary proceedings, only proves that Congress thought it not necessary- to pursue them, after such security should be given, until a decision should be made by the court. It has no tendency to prove they were not, in the judgment of Congress, of the highest necessity under all other circumstances ; and of this necessitj' Congress alone is the judge. The remaining objection to this warrant is, that it was issued without the support of an oath or affirmation, and so was forbidden hy the fourth article of the amendments of the Constitution. But this article has no reference to civil proceedings for the recovery of debts, of which a search-warrant is not made part. The process, in this case, is termed, in the Act of Congress, a warrant of distress. The name be- stowed upon it cannot affect its constitutional validity. In substance, it is an extent authorizing a levy for the satisfaction of a debt ; and as no other authority is conferred, to make searches or seizures, than is ordinarily embraced in everj- execution issued upon a recognizance, or a stipulation in the admiralty, we are of opinion it was not invalid for this cause.^ . . . DAVIDSON V. NEW ORLEANS. Supreme Court or the United States. 1877. [96 U. S. 97.] Error to the Supreme Court of the State of Louisiana. On the 7th of December, 1871, the petition of the citj' of New Or- leans and the administrators thereof was filed in the Seventh District Court for the parish of Orleans, setting forth an assessment on certain real estate, made under the statutes of Louisiana, for draining the swamp lands within the parishes of Carroll and Orleans ; and asking that the assessment should be homologated h\ the judgment of the court. The estate of John Davidson was assessed for various parcels in different places for about $50,000. His widow and testamentary' executrix ap- peared in that court and filed exceptions to the assessment ; and the court refused the order of homologation, and set aside the entire assess- ment, with leave to the plaintiffs to present a new tableau. On appeal from this decree, the Supreme Court of Louisiana reversed it, and ordered the dismissal of the oppositions, and decreed that the 1 And so Palmer v. McMdhon, 133 V. S. 660, 669 (1889). — Ed. CHAP. IV.] DAVIDSON V. NEW ORLEANS. 611 assessment-roll presented be approved and homologated, and that tlie approval and homologation so ordered should operate as a judgment against the property described in the assessment-roll, and also against the owner or owners thereof. Mrs. Davidson then sued out the writ of error bj' which this judgment is now brought here for review. Mr. James D. Hill and Mr. John D. McPherson, for the plaintiff in error. Mr. Philip Phillips, contra. Mr. Justice Miller delivered the opinion of the court. The objections raised in the State courts to the assessment were nu- merous and varied, including constitutional objections to the statute under which the assessment was made, and alleged departures from the requirements of the statute itself. And although counsel for the plain- tiff in error concede, in the first sentence of their brief, that the only Federal question is, whether the judgment is not in violation of that provision of the Constitution which declares that " no State shall de- prive any person of life, liberty, or property without due process of law," the argument seems to suppose that this court can correct anj' other error which may be found in the record. 1. It is said that the legislature had no right to organize a private corporation to do the work, and, by statute, to fix the price at which the work should be done. 2. That the price so fixed is exorbitant. 3. That there maj' be a surplus collected under the assessment be- j-ond what is needed for the work, which must in that event go into the city treasurj'. Can it be necessarj- to say, that if the work was one which the State had authority to do, and to pay for it by assessments on the property interested, that on such questions of method and detail as these the ex- ercise of the power is not regulated or controlled by the Constitution of the United States ? Of a similar character is the objection much insisted on, that, under the statute, the assessment is actually made before, instead of after, the work is done. As a question of wisdom, — of judicious economy, — it would seem better in this, as in other works which require the expendi- ture of large sums of monej', to secure the means of paj'ment before becoming involved in the enterprise ; and if this is not due process of law, it ought to be. There are other objections iD-ged by counsel which may be referred to hereafter, but we pause here to consider a moment the clause of the Constitution relied on bj* plaintiff in error. It is part of sect. 1 of the Fourteenth Amendment. The section consists of two sentences. The fii'st defines citizenship of the States and of the United States. The next reads as follows : — "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property without due pro- 612 DAVIDSON V. NEW ORLEANS. [CHAP. IV. eess'ofkw, nor deny to any person within its jurisdiction tlie equal protection of the hiw." The seotioil was the subject of- very full and mature consideration in Slaughter-House Cases, 16 Wall. 36. ^ In those cases, an Act of the Louisiana Legislature, which liad granted "to a corporation created for the purpose theexclusive right to erect and maintain a building for the slaughter of live animals within the eit}', was assailed as being in con- flict with tliis section. The right of the State to use a private corpora- tion and confer upon it the necessary powers to carry into effect sanitary regulations was aflSrraed, and the decisioin is applicable to a similar objection in the ease now before us. The argument of counsel and the opinion of the court in thO-se- cases weremainly' directed to that part of the section which related to the privileges and immunities of citizens ; and, as the court' saiid- in 'the' oJ»nion, the argument was not much pressed, that the statute deprived the butchers of their property without due process of law. The court held that the provision was inapplicable to the case. The prohibition against depriving the citizen or subject of his life, liberty, or property without due process of law, is not new in the con- stitutional history of the English race. It is not new in the constitu- tional history of this' country,' and it was not new in the Constitution of the United States when it became a part of the Fourteenth Amend- ment, in the year 1866. . -.. The equivalent of the phrase " due process of law," according to Lord Coke,' is found in the words' " law of t\>e land," in' the Great Charter, in connection with the writ of habeas corpus, the trial by jur}', and other guarantees of the rights of the subject against the oppression of the Crown. In 'the series of amendments to the Constitution of the United States, proposed and adopted immediately after the organization of the government, which were dictated by the jealousy of the States as further limitations upon the power of the Federal government, it is found in the fifth, in connection with other guarantees of personal rights of the same character.. Among these are protection against pi-osecutions for crimes, unless sanctioned by a grand jury ; against being twice tried for the same offence ; against the accused being; compelled, in a criminal case, to testify against himself ; and against taking private property for pub- lic use without just compensation. Most of these provisions, including the one under consideration, either in terms or in substance, have been cmlwdied in Ihe constitutions of the several States, and in one shape or another have been the subject of judicial construction. It must be confessed, however, that the constitutional meaning or value of the phrase " due process of law," remains to-day without that satisfactory precision of definition which judicial decisions have given to nearly all the other guarantees of personal rights found in the constitu- tions of the several States < and of the United States. It is easy to see that wh&n the great barons of England wrung from CHAP. IV.] DAVIDSON V. KEW OELEANSJ 613 King John, at the point of the .sword, the concession that neither, .their lives nor their property should be disposed- of by the Crown, except as provided by the law of the land, they, meant. bj''^ law of the land" the ancient and customary laws of the English people, or laws enacted by the Parliament of which those barons were a con.trolling element. It was not in their minds, therefore, to protect themselves against the en- actment of laws by the Parliament of England. But when, in the jear of grace 1866, there is placed in the Constitution of the United States a declaration that " no State shall deprive any person of life, libert}-, or property without due process- of law," can a State make anj'thing due process of law which, by its own legislation, :it chooses to declare such? To affirm this is to hold that the prohibition to the States is of no avail, or has no application where tlie invasion of private rights is effected under the forms of State legislation;. It seems to us that a statute which declares in terms, and without ,more,,that the full and exclusive title of a described piece of land, which is now in A-, shall be and i» hereby vested in B., would, if effectual, deprive A. of his propertj^ without due process of law, within the meaning- of the constitutional provision. . , ,,■ A most exhaustive judieial inquirj'.into the meaning.of the words " due process of law:,'' as .found in the Fifth, Amendment, resulted in the unanimous decision of this court, that they do not necessarily imply a regular proceeding in'a court of justice, or after, the manner of such courts. Murray's L&ssee et al. v. Hohoken Land and Improvement Co., 18 How. 272. . . . [Here follows a statement of this case.] It is not a little remarkable, that while this provision has been in the Constitution of the United States, as a Vestraint upon the authority of the Federal government, for nearly a centurj', and while, during all that time, the manner; in which the powers of that government have been exercised has been walehed with jeaJous}", and, subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion. But while it has been a part of the Con-' stitution, as a restraint upon the power of the States, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that State courts and State legislatures have deprived, their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that, tiiere exists some strange, misconception of the scope of this provision as found in the Fourteenth Amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked, -upon asaimeans of bringing to the test of the decision of this court the absU'act opinions of ever}' unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation ou which such -.a decision may be founded. If, therefiore, it were possible to define what it is for a State' to deprive a person of life, liberty, or property without due process of law, inrterms 614 DAVIDSON V. NEW ORLEANS. [CHAP. IV, which would cover every exercise of power thus forbidden to the State, and exclude those which are not, no more useful construction could be furnished by this or any other court to any part of the fundamental law. But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, we think, in the ascertaining of the intent and applica- tion of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and «xclusion, as the cases pre- sented for decision shall require, with the reasoning on which such de- cisions maj' be founded. This court is, after an experience of nearly a century, still engaged in defining the obligation of contracts, the regula- tion of commerce, and other powers conferred on the Federal govern- ment, or limitations imposed upon the States. As contributing, to some extent, to this mode of determining what class of cases do not fall within its provision, we lay down the following proposition, as applicable to the case before us : — That whenever by the laws of a State, or by State authoritj', a tax, assessment, servitude, or other burden is imposed upon propertj' for the public use, whether it be for the whole State or of some more limited portion of the community, and those laws provide for a mode of confirm- ing or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his prop- erty without due process of law, however obnoxious it maj' be to other objections. It may violate some provision of the State Constitution against un- equal taxation ; but the Federal Constitution imposes no restraints on the States in that regard. If private property be taken fot public uses without just compensation, it must be remembered that, when the Four- teenth Amendment was adopted, the provision on that subject, in im- mediate juxtaposition in the Fifth Amendment with the one we are construing, was left out, and this was taken. It may possibly violate some of those principles of general constitutional law, of whicli we could take jurisdiction if we were sitting in review of a circuit court of the United States, as we were in Loan Association v. Topeka, 20 Wall. 655. But however this may be, or under whatever other clause of the Federal Constitution we may review the case, it is not possible to hold that a party has, without due process of law, been deprived of his prop- erty, when, as regards the issues affecting it, he has, by the laws of the State, a fair trial in a court of justicCj according to the modes of pro- ceeding applicable to such a case. This wasclearly stated by this court, speaking by the Chief Justice, in Kennard v. Morgan, 92 U. S. 480, and, in substance, repeated at the present term, in McMillan v. Ander- son, 95 U. S. 37. This proposition covers the present case. Before the assessment could CHAP. IV.] DAVIDSON V. NEW ORLEANS. 615 be collected, or become effectual, the statute required that the tableau of assessments should be filed in the proper District Court of the State ; that personal service of notice, with reasonable time to object, should be served on all owners who were known and within reach of process, and due advertisement made as to those who were unknown, or could not be found. This was complied with ; and the party complaining here appeared, and had a full and fair hearing in the court of the first instance, and afterwards in the Supreme Court. If this be not due pro- cess of law, then the words can have no definite meaning as used in the Constitution. One or two errors assigned, and not mentioned in the earlier part of this opinion, deserve a word or two. It is said that the plaintiff's property had previously been assessed for the same purpose, and the assessment paid. If this be meant to deny the right of the State to tax or assess property twice for the same purpose, we know of no provision in the Federal Constitution which forbids this, or which forbids "unequal taxation by the States. If the Act under which the former assessment was made is relied on as a con- tract against further assessments for the same purpose, we concur with the Supreme Court of Louisiana in being unable to discover such a contract. It is also said that part of the property oi plaintiff which was assessed is not benefited by the improvement. This is a matter of detail with which this court cannot interfere, if it were clearly §o ; but it is hard to fix a limit within these two parishes where property would not be bene- fited by the removal of the swamps and marshes which are within their bounds. And lastly, and most strongly, it is urged that the court rendered a personal judgment against the owner for the amount of the tax, while it also made it a charge upon the land. It is urged with force, — and some highly respectable authorities are cited to support the proposition, — that while for such improvements as this a part, or even the whole, of a man's propertj' connected with the improvement maj' be taken, no personal liability can be imposed on him in regard to it. If this were a proposition coming before us sitting in a State court, or, perhaps, in a circuit coui't of the United States, we might be called upon to decide it ; but we are unable to see that any of the provisions of the Federal Constitution authorizes us to reverse the judgment of a State court on that question. It is not one which is involved in the phrase "due process of law," and none other is called to our attention in the present case. As there is no error in the judgment of the Supreme Court of Louisi- ana, of which this court has cognizance, it is Affirmed. Mb. Justice Beadlet gave a concurring opinion, in which he said: " I think it [the opinion of the court] narrows the scope of inquiry as to what is due process of law more than it should do. ... I think, 616 HUKTADO V. CALLFOENIA. [CHAP. IV. therefore, we are entitled, under the Fourteenth Amendment, not only to see that there is some process of law, but ' due process of law,' provided by the State law when a citizen is deprived of his property ; and that, in judging what is ' due process of law,' respect must be had to the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for local im- provements, or none of these : and if found to be suitable or admissible in the special case, it will be adjudged to be ' due process of law ; ' but if found to be arbitrary, oppressive, and unjust, it may be declared to be not ' due process of law.' Such an examination may be made without interfering with that large discretion which every legislative power has of making wide modifications in the forms of procedure in each case, according as the laws, habits, customs, and preferences of the people of the particular State may require." HURTADO V. CALIFORNIA. Supreme Court of the United States. 1883. [no U. s. 516.] The Constitution of the State of California, adopted in 1879, in Article I., section 8, provides as follows: — "Offences heretofore required to be prosecuted by indictment shall be prosecuted bj' information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment as maj- be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county." . . . [Hurtado was charged with murder, by an information filed b^' the District Attorney of Sacramento County in the local court, in February, 1882 ; on his arraignment pleaded not guilty ; and was tried bj- jury, found guilty, and sentenced to be hanged. He filed objections to the execution of this judgment, to the effect, among other things, that the proceeding, upon information, was contrary to the Fourteenth Amend- ment. These objections were overruled bj' the local court and, on ap- peal, by the Supreme Court of California ; and they were now brought up, on error, to the Supreme Court of the United States.] Mr. A. L. Hart, for plaintiff in error. Mr. John T. Gary, for defendant in error. Mr. Justice Matthews delivered the opinion of the court. After reciting the facts in the foregoing language, he continued : — It is claimed on behalf of the prisoner that the conviction and sen- tence are void, on the ground that they are repugnant to that clause of the Fourteenth Article of Amendment of the Constitution of the United States, which is in these words : — CHAP. IV.] H0RTADO «. CALIFORNIA. 617 " Nor shall anj' State deprive any person of life, liberty, or property without due process of law." The proposition of law we are asked to affirm is that an indictment or presentment b^' a grand jury, as known to the common law of Eng- land, is essential to that "due process of law," when applied to prose- cutions for felonies, which is secured and guaranteed by this provision of the Constitution of the United States, and which accordingly it is forbidden to the States l-espectively to dispense with in the administra- tion of criminal law. . . . It is maintained on behalf of the plaintiff in error tliat the phrase "due process of law" is equivalent to "law of the land," as found in the 29th chapter of Magna Charta ; that by immemorial usage it has acquired a fixed, definite, and technical meaning ; that it refers to and includes, not only the general principles of public liberty and private right, which lie at the foundation of all free government, but the very institutions which, venerable by time and custom, have been tried by experience and found fit and necessary for the preservation of those prin- ciples, and which, having been the birthright and inheritance of every English subject, crossed the Atlantic with the colonists and were trans- planted and established in the fundamental laws of the State ; that, hav- ing been originally introduced into the Constitution of the United States as a limitation upon the powers of the government, brought into being by that instrument, it has now been added as an additional security to the individual against oppression by the States themselves ; that one of these institutions is that of the grand jur}', an indictment or present- ment by which against the accused in cases of alleged felonies is an essential part of due process of law, in order that he may not be harassed or destroj'ed by prosecutions founded only upon private malice or popular fury. This view is certainly supported by the authority of the great name of Chief Justice Shaw and of the court in which he presided, which, in Jones V. Bobbins, 8 Gray, 329, decided that the 12th article of the Bill of Rights of Massachnsetts, a transcript of Magna Charta in this re- spect, made an indictment or presentment of a grand jury essential to the validitj' of a conviction in cases of prosecutions for felonies. . . . [Here follows a consideration of this case and of certain language of Coke.] This view of the meaning of Lord Coke is the one taken by Mer- rick, J., in his dissenting opinion in Jones v. Bobbins, 8 Gray, 329, who states his conclusions in these words : " It is the forensic trial, under a broad and general law, operating equally upon every member of our community, which the words ' by the law of the land,' in Magna Charta, and in every subsequent declaration of rights which has borrowed its phraseology, make essential to the safetj- of the citizen, securing thereby both his liberty and his propertj-, by preventing the unlawful arrest of his person or any unlawful interference with his estate." See also State v. Starling, 15 Rich. (S. C.) Law, 120. 618 HUKTADO V. CALIFORNIA. [OHAP. IV. Mr. Reeve, in 2 History of Eng. Law, 43, translates the phrase, nisi per legale judicium parium suorum vel per legem terrce, " But-bj- the judgment of his peers, or by some other legal process or proceeding adapted by the law to the nature of the case." Chancellor Kent, 2 Com. 13, adopts this mode of construing the phrase. Quoting the language of Magna Charta, and referring to Lord Coke's comment upon it, he says : " The better and larger definition of due process of law is that it means law in its regular course of adminis- tration through courts of justice." This accords with what is said in Westertielt v. Gregg, 12 N. Y. 202, by Denio, J., p. 212 : "The provision was designed to protect the citizen against all mere acts of power, whether flowing from the legislative or executive branches of the government." The principal and true meaning of the phrase has never been more tersely or accurately stated than by Mr. Justice Johnson, in JBank of Columbicf, v. Okely, 4 Wheat. 235-244 : " As to the words from Magna Gharta, incorporated into the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this : that they were intended to secure the individual from the arbitrarj' exercise of the powers of gov- ernment, unrestrained bj' the established principles of private right and distributive justice.'' And the conclusion rightly deduced is, as stated by Mr. Coolej', Con- stitutional Limitations, 356 : " The principles, then, upon which the process is based, are to determine whether it is ' due process ' or not, and not any considerations of mere form. Administrative and remedial process maj' be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen." It is urged upon us, however, in argument, that the claim made in behalf .of the plaintiff in error is supported bj' the decision of this court in Murray's Lessee v. Hobolcen Land & Improvement Company, 18 How. 272. . . . [Here follows a passage from this opinion.] This, it is argued, furnishes an indispensable test of what consti- tutes " due process of law ; " that any proceeding otherwise authorized by law, which is not thus sanctioned by usage, or which supersedes and displaces one that is, cannot be regarded as due process of law. But this inference is unwarranted. The real syllabus of the passage quoted is, that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country ; but it by no means follows that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned on that account, as not due process of law. The answer was : Bpwever ex- ceptional it may be, as tested by definitions and principles i>f ordinary procedure, nevertheless, this, in substance, has been immilmorially the actual law of the land, and, therefore, is due process of lav. But to hold that such a characteristic is essential to due process of law, would CHAP. IV.J HURTADO V. CALIFORNIA. 619 be to deny everj- quality of the law but its age, and to render it incapa- ble of progress or improvement. It would be to stamp upon our juris- prudence the unchangeableuess attributed to the laws of the Medes and Persians. This would be all the more singular and surprising, in this quick and active age, when we consider that, owing to the progressive develop- ment of legal ideas and institutions in England, the words of Magna Charta stood for very different things at the time of the separation of the American colonies from what they represented originally. . . . The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history ; but it was made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of many tongues. And while we take just pride in the principles and institutions of the common law, we are not to forget tliat in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that code which survived the Roman Empire as the foundation of modern civili- zation in Europe, and which has given us that fundamental maxim of distributive justice, — suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age ; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to'assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situ- ation and system will mould and shape it into new and not less useful forms. The concessions of Magna Charta were wrung from the king as guar- antees against the oppressions and usurpations of his prerogative. It did not enter into the minds of the barons to provide security against their own body or in favor of the Commons by limiting the power of Parliament ; so that bills of attainder, ex post facto laws, laws declar- ing forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were never regarded as incon- sistent with the law of the land ; for notwithstanding what was attrib- uted to Lord Coke in ^owAaw's (7ase,8Rep. 115, 118 a, the omnipotence of Parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty, against legislative tyranny was the power of a free public opinion rep- resented by the Commons. In this country written constitutions were deemed essential to protect the rights ^and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights. They were limitations upon all the powers of government, legislative as well as executive and judicial. 620**' HUETADO V. CALIFOKNIA. [CHAP. rV. It necessarily happened, theretorej- that as these broad and general maxims of liberty and jpstice held in oui- systeHj a ;diflferent place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corrcr sponding and more comprehensive interpretation.,: Applied in England only as guards against executive usurpation and tyranny,, here, tbey have become bulwarks also against arbitrary legislation ; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English laWj they must be held, to guarantee, not particular forms of procedure, but the ver^ substance of individual rights to life, liberty, and property. . > Restraints that could be fastened upon executive authoritj' with, pre- cision and detail, might .prove obstructive and injurious when imposed on the just and necessary disqi^tion of legislative power ; and, while in every instance, laws that violated express and specific injunctions and prohibitions might, without embarrassment, be judicially declared to be void, yet, any general principle or maxim, founded on the essential nature of law, as a just and reasonable expression of the public will and of government, as instituted by popular consent and for the general good, can only be applied to cases coming clearly within the scope of its spirit and purpose, and not to legislative provisions merely estab- lishing forms and modes of attainment. Such regulations, to adopt a sentence of Burke's, " may alter the mode and application, but have no power over the substance, of original jusMce.". .Tract on the: Popery Laws, 6 Burke's Wor^s, ed. Little & Brown, 323... ,, i , Such is the often-repeated doctrine of this courti . .... [Here, follow citations from JHunn v. Ill, 94 U. S. 113 ; Walker v. Savinet, 92 U. S. 90; Kennardy. Louisiana, 92 U. S. 430; Davidson v. ;,iV. 0., -96' U. S. 97.] -H : We are to constrye this, phrase in the Fourteenth. Amendment by the usus loquendi of the Qonstitution Itself. .The same, words are contained in the Fifth Amendmenj;. .That article makes specific and express .pro.- vision for perpetuating the , institution of- the grand jury, so far as relates to prosecutions for the more aggravated crimes under the laws of the United States. It declares .tha,t„-r-, ,i, ■ ,. ;!<• ,. ; " No person shall he held to answer for a capital, or otherwise infa- mous crime, unless, on a presentment or indictment of a grand rjui^j-, 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 fop, the same offence to, be twice put in jeopardy of life or limb ; nor shall he be compelled in any criminal case to be witness against himself." [It then immediately adds.:} " Nor be de- prived of life, liberty,, or property without due process of law.",:,. , ,ii. According to a recognized canon of interpretation, especiall}j applicable to formal and solemn instruments of congtitutional-law, we are forbid- den to assume, without clear reason to the contrary,: that any paut. of .tliia most important amendment is superfluflBS. The natural and obvious CHAP. IV.] HURT ADO V. CALIFORNIA. 621 inference is, that in the sense of the Constitution, 'fdue process of law" was not meant or intended to include, ex m termini, the institution and procedure of a grand jur^' in any case. The conclusion is equally irresistible, ■that when 'the same phrase was emploj'ed.in the Fourteenth Amendment to restrain the action of the States, it was used in the same sense and with no greater extent; and that if. in the adoption of that amendment it had b6en part of its purpose to perpetuate the insti- tution of the grand jury in all the States, it would have embodied, as did the Fifth Amendment, express declarations to that effect. Due pro- cess of law in the latter refers to that law of the land which derives its authority from the legislative powers conferred upon Congress hy the Constitution of the United: States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law. In the Fourteenth Amendment, by parity of reason, it refers to that law of the land in each State which derives 'its authority' from the inherent and reservfed powars of the State, exerted' within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil' and political institutions, 'and the greatest security for wMeh resides in the right of the people to make their own laws, and alter them at their pleasure.! . . . But it is not to be supposed that these legistattve powers are absolute and despoticj and tliat the amendment prescribing due process of law is toovague and-'indefinite to operate as a practical restraint. It is not every act, legislative in form, that is law. ■ Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar definition, " the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judg- ment only after trial," so " that every citizen shall hold his Ufe, liberty, property, and immunities under the protection of the general rules which govern society ; " and thus excluding, as not due process of law, acts of 'attainder, trills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments and decrees, and other similar special, partial, and arbitrary exertions of power under the forms of legislation. Ai'lritrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limita- tions imposed by our constitutional law upon the action of the govern- ments, both State and national* are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers as against the violence of public agents transcending the limits of lawful authoritj', even when acting in the name and wielding the force of the government; G22 HURTADO V. CALIFORNIA. [CHAP. IV. The Supreme Court of Mississippi, in a well-considered case, — Brown v. Levee Commissioners, 50 Miss. 468, — speaking of the mean- ing of the phrase "due process of law," saj-s : " TLe,principle does not demand that the laws existing at any point of time shall be irrepealable, or that any forms of remedies shall necessarilj' continue. It refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized. If anj- of these are disre- garded in the proceedings by which a person is condemned to the loss of life, liberty, or property, then the deprivation has not been by ' due process of law.' "... ♦ It follows that any legal proceeding enforced by public authority, whether sanctioned hy age and custom, or newly devised in the discre- tion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of libertj' and justice, must be held to be due process of law. The Constitution of Connecticut, adopted in 1818 and in force when the Fourteenth Amendment took effect, requires an indictment or presentment of a grand jury onlj' in cases where the punishment of the crime charged is death or imprisonment for life, and yet it also declares that no person shall " be deprived of life, libertj', or property but by due course of law." It falls short, therefore, of that measure of protection which it is claimed is guaranteed bj' Magna Charta to the right of personal liberty ; notwithstanding which, it is no doubt justly- said in Swift's Digest, 17, that "this sacred and inestimable right, without which all others are of little value, is enjoj'ed by the people of this State in as full extent as in any countrj' on the globe, and in as high a degree as is consistent with the nature of civil government. No indi- vidual or body of men has a discretionary or ai'bitrarj' power to com- mit any person to prison ; no man can be restrained of his libertj-, be prevented from removing himself from place to place as he chooses, be compelled to go to a place contrary to his inclination, or be in anj' way imprisoned or confined, unless by virtue of the express laws of the land." Tried by these principles, we are unable to saj- that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certi- fying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law. It is, as we have seen, an ancient proceeding at common law, which might include every case of an offence of less grade than a felonj-, except misprision of treason ; and in every circumstance of its administration, as authorized by the statute of California, it carefully considers and guards the sub- stantial interest of the prisoner. It is merely a preliminary proceeding, and can result in no final judgment, except as the consequence of a reg- ular judicial trial, conducted precisely as in cases of indictments. In reference to this mode of proceeding at the common law, and CHAP. IV.] BAKBIER V. COXNOLLY. 623 which he saj's " is as ancient as the common law itself," Blackstone adds (4 Com. 305) : — " And as to those offences in which informations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction, and were carried on in a legal and regular course in his Majesty's Court of King's Bench, the subject had no rea- son to complain. The same notice was given, the same process was issued, the same pleas were allowed, the same trial bj' jury was had, the same judgment was given by the same judges, as if the prosecution had originally been b}' indictment." For these reasons, finding no error therein, the judgment of the Supreme Court of California is Affirmed} [Harlan, J., gave a dissenting opinion.] BAEBIER V. CONNOLLY. Supreme Coukt of the United States. 1885. [113 U. S. 27.] On the 8th of April, 188*4, the Board of Supervisors of the city and county of San Francisco, the legislative authority of that municipality, passed an ordinance reciting that the indiscriminate establishment of public laundries and wash-houses, where clothes and other articles were cleansed for hire, endangered the public health and the public safetj', prejudiced the well-being and comfort of the community, and depreci- ated the value of property in their neighborhood ; and then ordaining, pursuant to authority alleged to be vested in the Board under provisions of the State Constitution, and of the Act of April 19, 1856, consolidat- ing- the sovernment of the city and countj', that after its passage it should be unlawful for any person to establish, maintain, or carry on the business of a public laundry or of a public wash-house within certain designated limits of the city and county, witliout first having obtained a certificate, signed bj' the health officer of the municipality, that the premises were properlj- and sufficiently drained, and tliat all proper arrangements were made to carry on the business without injury to the sanitary condition of the neighborhood ; also a certificate signed by the Board of Fire Wardens of the municipality, that the stoves, washing and drying apparatus, and the appliances for heating smoothing-irons, were in good condition, and that their use was not dangerous to the sur- rounding property from fire, and that all proper precautions were taken to comply with the provisions of the ordinance defining the fire limits of ' And so Hallinger T. Davis, 146 U. S. 314. See also the full discussions in Wyne- hamer v. The People, 13 N. Y. 378 (1856). —Ed. 624 BAKBIER V. CONNOLLY. [CHAP. IV. the cit3' and countj', and making regulations concerning the erection and use of buildings therein. The ordinance required the health oflScer and Board of Fire Wardens, upon application of any one to open or conduct the business of a public laundry-, to inspect the premises in which it was proposed to carry on the business, in order to ascertain whether they are provided with proper drainage and sanitary appliances, and whether the provisions of the fire ordinance have been complied with ; and, if found satisfactory in all respects, to issue to the applicant the required certificates without charge for the services rendered. Its fourth section declared that no person owning or employed in a public laundry or a public wash-house within the prescribed limits shall wash or iron clothes between the hours of ten in the evening and six in the morning or upon anj* portion of Sunday ; and its fifth section, that no person engaged in the laundry business within those limits should permit any one suffering from an infectious or contagious disease to lodge, sleep, or remain upon the premises. The violation of any of these several provisions was declared to be a misdemeanor, and penalties were prescribed differing in degree accord- ing to the nature of the offence. The establishing, maintaining, or carrying on the business, without obtaining the certificates, was punish- able by fine of not more than $1,000, or bj- imprisonment of not more than six months, or by both. Carrying on the business outside of the hours prescribed, or permitting persons with contagious diseases on the premises, was punishable bj- fine of not less than $5 or more than $50, or by imprisonment of not more than one month, or bj' both such fine and imprisonment. The petitioner in the court below, the plaintiff in error here, was con- victed in the Police Judge's Court of the City and County' of San Fran- cisco, under the fourth section of the ordinance, of washing and ironing clothes in a public laundry, within the prescribed limits, between the hours of ten o'clock in the evening of Maj- 1, 1884, and six o'clock in the morning of the following daj', and was sentenced to imprisonment in the county jail for five days, and was accordingly committee*, in exe- cution of the sentence, to the custody of the sheriff of the city and county, who was keeper of the county jail. That court had jurisdiction to try him for the alleged offence, if the ordinance was valid and bind- ing. But, alleging that his arrest and imprisonment were illegal, he ob- tained from the Superior Court of the city and county a writ of habeas corpus, in obedience to which his body was brought before the court by the sheriff, who returned that he was held under the commitment of the police judge upon a conviction of a misdemeanor, the commitment and sentence being produced. The petitioner thereupon moved for his discharge on the ground that the fourth section of the ordinance violates the Fourteenth Amendment to the Constitution of the United States, and certain sections of the Constitution of the Stale. The particulars stated in which such alleged violations consist were substantially these, — omitting the repetition of CHAP. IV.] BAEBIEK V. CONNOLLY. 625 the same position, — that the section discriminated between the class of laborers engaged in the laundrj' business and those engaged in other kinds of business ; that it discriminated between laborers bej'ond the designated limits and those within them ; that it deprived the petitioner of the right to labor, and, as a necessarj' consequence, of the right to acquire property ; that it was not within the power of the Board of Supervisors of the city and countj- of San Francisco ; and that it was unreasonable in its requirements. The Superior Court overruled the positions and dismissed the writ, and the petitioner brought this writ of error. Mr. A. C. Searle, Mr. H. G. Sieberst, and Mr. Alfred Clarke, for plaintiff in error. No appearance for defendant in error. Mr. Justice Field delivered the opinion of the court. He recited the facts as above stated, and continued : In this case we can only consider whether the fourth section of the ordinance of the city and county of San Francisco is in conflict with the Constitution or laws of the United States. We cannot pass upon the conformity of that section with the requirements of the Constitution of the State. Our jurisdiction is confined to a consideration of the Federal question involved, which arises upon an alleged conflict of the fourth section in question with the first section of the Fourteenth Amendment of the Constitution of the United States. NO other part of the amend- ment has any possible application. That fourth section, so far as it is involved in the case before the police judge, was simply a prohibition to carrj' on the washing and iron- ing of clothes in pnblic laundries and wash-houses, within certain pre- scribed limits of the city and conntj', from ten o'clock at night until six o'clock on the morning of the following daj'. The prohibition against labor on Sunday is not involved. The provision is purely a police reg- ulation within the competency of any municipalitj- possessed of the ordinarj' powers belonging to such bodies. And it would be an extra- ordinary usurpation of the authority of a mnnicipalitj', if a Federal tribunal should undertake to supervise such regulations. It ma}' be a necessar}' measure of precaution in a city composed largelj- of wooden buildings like San Francisco, that occupations in which fires are con- stantly required, should cease after certain hours at night until the fol- lowing morning ; and of the necessity of such regulations the municipal bodies are the exclusive judges ; at least any correction of their action in such matters can come only from State legislation or State tribunals. The same municipal authority which directs the cessation of labor must necessarily prescribe the limits within which it shall be enforced, as it does the limits in a citj' within which wooden buildings cannot be con- structed. There is no invidious discrimination against any one within the prescribed limits by such regulations. There is none in the regula- tion under consideration. The specification of the limits within which the business cannofbe carried on without the certificates of the health VOL. I. — 40 626 BAEBIEE V. CONNOLLY. [CHAP. IV. officer and Board of Fire Wardens is merel}- a designation of the por- tion of the city in wliich the precautionary measures against fire and to secure proper drainage must be talfen for the public health and safetj-. It is not legislation discriminating against anj' one. All persons en- gaged in the same business within it are treated alike ; are subject to the same restrictions and are entitled to the same privileges under similar conditions. The Fourteenth Amendment, in declaring that no State " shall deprive anj- person of life, liberty, or property, without due process of law, nor denj' to any person within its jurisdictidfe the equal protection of the laws," undoubtedly intended not onh' that there should be no arbitrary' deprivation of life or liberty-, or arbitrary spoliation of propert3', but that equal protection and security should be given to all under like cir- cumstances in the enjoyment of their personal and civil rights ; that all persons should be equall}' entitled to pursue their happiness and acquire and enjoj' property ; that they should have like access to the courts of the country for the protection of their persons and property', the preven- tion and redress of wrongs, and the enforcement of contracts ; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits b}- others under like circumstances ; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offences. But neither the amendment — broad and comprehensive as it is — nor anj- other amend- ment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts, such as for draining marshes and irri- gating arid plains. Special burdens are often necessary for general benefits — for supplying water, preventing fires, lighting districts, clean- ing streets, opening parks, and many other objects. Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon any one, but to promote, with as little individual in- convenience as possible, the general good. Though, in many respects, necessarily special in their character, they do not furnish just ground of complaint if thej- operate alike upon all persons and property under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment. In the execution of admitted powers unnecessary proceedings are often CHAr. IV:] IN THE MATTER OF JACOBS. 627 required which are ciimbersoine, dilator}', and expensive, j'et, if no dis- crimination against any one be made and no substantial right be impaired by them, they are not obnoxious to any constitutional objection. The inconveniencies arising in the administration of the laws from this cause are matters entirely for the consideration of the State ; the}^ can be remedied onl}- by the State. In the case before us the provisions re- quiring certificates from the health officer and the Board of Fire Wardens may, in some instances, be unnecessary, and the changes to be made to meet the conditions prescribed may be burdensome, but, as we have said, this is a matter for the determination of the municipalitj' in the execution of its police powers, and not a violation of any substantial right of the individual. Judgment affirmed?- In the Matter of THE APPLICATION OF JACOBS. New York Cocrt of Appeals. 1885. [98 N. Y. 98.] Peter B. Olney, District Attorne}', for appellant. Wm. M. Evarts, A. J. Dittenhoeffer, and Morris S. Wise, for respondent. Earl, J. The relator Jacobs was arrested on the 14th day of May, 1884, on a warrant issued bj' a police justice in the city of New York under the Act chapter 272 of the Laws of 1884, passed Ma\- 12, entitled " An Act to improve the Public Health by prohibiting tlie Manufacture of Cigars and Preparation of Tobacco in anj' form in Tenement-houses in certain Cases, and regulating the Use of Tenement-houses in certain Cases." On the evidence of the complainant he was by the justice com- mitted for trial, and thereafter upon his petition, a justice of the Supreme Court granted a writ of habeas corpus, to which a return was made, and upon the hearing thereon the justice made an order dismissing the writ and remanding hira to prison. From that order he appealed to the General Term of the Supreme Court, which reversed the order and dis- charged him from prison, on the ground that the Act under which he was arrested was unconstitutional and therefore void. The district attorney on behalf of the people then appealed to this' court, and the sole question for our determination is, whether the Act of 1884 creat- ing the offence for which the relator was arrested was a constitutional exercise of legislative power. The facts as thej' appeared before the police justice were as follows : The relator at the time of his arrest lived with his wife and two chil- dren in a tenement-house in the city of New York in which three other families also lived. There were four floors in the house, and seven rooms on each floor, and each floor was occupied by one family living 1 And so Soon Hing v.. Crowtei/, 113 U. S. 703. — Ed. 628 IN THK MATTER OF JACOBS. [CHAP. IV. independently of the others, and doing their cooking in one of the rooms so occupied. The relator at the time of his arrest was engaged in one of his rooms in preparing tobacco and making cigars, but there was no smell of tobacco in any part of the house except the room whei'e he was thus engaged. These facts sliowed a violation of the provisions of the Act which took effect immediatelj' upon its passage and the material portions of which are as follows : " Section 1. Tlie manufacture of cigars Or pre- paration of tobacco in any form on any floor, or in any part of any floor, in any tenement-house is hereby pfbhibited, if such floor or any part of such floor is by any person occupied as a home or residence for the purpose of living, sleeping, cooking, or doing any household work therein. Section 2. Any house, building, or portion thereof occupied as the home or residence of more than three families living indepen- dently of one another, and doing their cooking upon the premises, is a tenement-house within the meaning of this Act. Section 3. The first floor of said tenement-house on' which thei'e is a store for the sale of cigars and tobacco shall be exempt from the prohibition provided in section one of this Act. Section 5. Every person who shall be found guiltj' of a violation of this Act, or of having caused another to commit such violation, shall be deemed guilty of a misdemeanor, and shall be punished for every offence by a fine of not less than ten dollars and not more than one hundred dollars or by imprisonment for not less than ten days and not more than six months, or both such fine and imprison- ment. Section 6. This Act shall appl^- onlj' to cities having over five hundred thousand inhabitants." What does this Act attempt to do ? In form, it makes it a crime for a cigar-maker in New York and Brooklj-n, the onlj' cities in the State hav- ing a population exceeding 500,000, to carry on a perfectly lawful trade in his own home. Whether he owns the tenement-house or has hired a room therein for the purpose of prosecuting his trade, he cannot manu- facture therein his own tobacco into cigars for his own use or for sale, and he will become a criminal for doing that which is perfectly lawful outside of the two cities named — everywhere else, so far as we are able to learn, in the whole world. He must either abandon the trade by which he earns a livelihood for himself and family, or, if able, pro- cure a room elsewhere, or hire himself out to one who has a room upon such terms as, under the fierce competition of trade and the inexorable laws of supply and demand, he may bo able to obtain from his emploj'cr. He maj' choose to do his work where he can have the supervision of his family and their help, and such choice is denied him. He may choose to work for himself rather than for a taskmaster, and he is left without freedom of choice. He may desire the advantage of cheap production in consequence of his cheap rent and family help, and of this he is de- prived. In the unceasing struggle for success and existence which per- vades all societies of men, he may be deprived of that which will enable him to maintnin his hold, ancl to survive. He may go to a tenement- CHAP. rV.] IN THE MATTER OF JACOBS. 629 house, and finding no one living, sleeping, cooking, or doing any house- liold woi'I? upon one of the floors, hire a room upon such floor to carry On his trade, and afterward some one may coranience to sleep or to do some household work upon such floor, even without his knowledge, and he at once becomes a criminal in consequence of another's act. He may go to a tenement-house, and finding but two families living therein independently', hire a room, and afterward by subdivision of the families, or a change in their mode of life, or in some other way, a fourth family begins to live therein independently, and thus he may become a crimi- nal without the knowledge, or possibly the means of knowledge that he ■was violating any law. It is, therefore, plain that this law interferes with the profitable and free use of his property by the owner or lessee of a tenement-house who is a cigar-maker, and trammels him in the ap- plication of his industry and the disposition of his labor, and thus, in a strictly legitimate sense, it arbitrarily deprives him of his' property and of some portion of his personal liberty. Tiie constitutional guarantee that no person shall be deprived of his property without due process of law may be violated without the physi- cal taking of propertj^ for public or private use. Property maj' be destroyed, or its value may be annihilated ; it is owned and kept for some useful purpose and it has no value unless it can be used. Its capability for enjoyment and adaptability to some use are essential characteristics and attributes without which property cannot be con- ceived ; and hence any law which destroys it or its value, or takes away any of its essential attributes, deprives the owner of his property. The constitutional guarantee would be of little worth, if the legisla- ture could, without compensation, destroy property- or its value, deprive the owner of its use, deny him the right to live in his own house, or to work at any lawful trade tlierein. If the legislature has the power under the Constitution to prohibit the prosecution of one lawful trade in a tenement-house, then it ma}' prevent the prosecution of all trades therein. " Questions of power," says Chief Justice Marshall in Brown V. State of Maryland, 12 Wheat. 419, "do not depend upon the de- gree to which it may be exercised. If it ma^- be exercised at all it must be exercised at the will of those in whose hands it is placed." Black- stone in his classification of fundamental rights says : " The third abso- lute riglit inherent in every Englishman is that of property which consists in the free use, enjoyment, and disposal of all his acquisitions without any control or dmiinution, save only by the law of the land." 1 Cora. 138. In Furnpelly v. Green Bay Co., 13 Wall. 166, 177, Miller, J., says: "There ma}' be such serious interruption to the com- mon and necessary use of property as will be equivalent to a taking within the meaning of the Constitution." In Wynehamer v. People, 13 N. Y. 378, 398, Comstock, J., sa3's: "When a law annihilates the value of property and strips it of its attributes, by which alone it is dis- tinguished as property, the owner is deprived of it according to the plainest interpi'etation, and certainly within the constitutional provision 630 IN THE MATTER OF JACOBS. [CHAP. IV. intended expressly to shield personal rights from the exercise of arbi- trary power." In People v. Otis, 90 N. Y. 48, Andrews, J., says: " Depriving an owner of propertj- of one of its attributes is depriving him of his property within the constitutional provision." So, too, one may be deprived of his liberty and his constitutional rights thereto violated without the actual imprisonment or restraint of his person. Liberty, in its broad sense as understood in this country, means the right, not only of freedom from actual servitude, imprison- ment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any law- ful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel these rights, which limit one in his choice of a trade or profession, or confine him to work or live in a speci- fied localitj', or exclude him from his own house, or restrain his other- wise lawful movements (except as such laws may be passed in the exercise by the legislature of the police power, which will be noticed later), are infringements upon his fundamental rights of libert}-, which are under constitutional protection. In Butchers' Union Company v. Crescent City Co., Ill U. S. 746, Field, J., says: That among the inalienable rights as proclaimed in the Declaration of Independence " is the right of men to pursue any lawful business or vocation in &x\y man- ner not inconsistent with the equal rights of others, which ma^' increase their property 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 innocent in themselves, and have been followed in all commuuilies from time immemorial, must, therefore, be free in this country to all alike upon tlie same terms. The right to pursue them without let or hindrance, except that which is applied to ail persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright." In the same case Bradley, J., says : " I hold that the liberty of pursuit, the right to fol- low any of the ordinar}- callings of life, is one of the privileges of a citi- zen of the United States," of which he cannot be deprived without invading his right to liberty within the meaning of the Constitution. In Live-Stock, etc.. Association v. Crescent City, etc., Company, 1 Abb. U. S. 388, 398, the learned presiding justice says : " There is no more sacred right of citizenship than the rightJto pursue unmolested a law- ful employment in a lawful manner, Wis^-noWnng more nor less than the sacred right of labor." In Wynehamer v. People, Johnson, J., says : " That a law which should make it' a Crime for men either to live in, or rent or sell their houses," would violate the constitutional guar- antee of personal liberty. In Bertholf v. O'Reilly, 74 N. Y. 509, 515, Andrews, J., says: That one could "be deprived of his liberty in a constitutional sense without putting his person in confinement," and that a man's right to liberty included " the right to exercise his facul- ties, and to follow a lawful avocation for the support of life." . . . CHAP. IV.] ^ IN THE MATTER OF JACOBS. 631 These citatious are sufficient to show that the police power is not with- out limitations, and that in its exercise the legislature must respect the great fundamental rights guaranteed by the Constitution. If this were otherwise, the power of the legislature would be practically without limitation. In the assumed exercise of the police power in the interest of the health, the welfare, or the safety of the public, every right of the citizen might be invaded and every constitutional barrier swept awaj'. Generally it is for the legislature to determine what laws and regula- tions are needed to protect the public health and secure the public comfort and safetj', and while its measures are calculated, intended, convenient, and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But the}- must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not final or conclu- sive. If it passes an Act ostensibl}' for the public health, and thereby destroys or takes away the property of a citizen, or interferes with his personal liberty, then it is for the courts to scrutinize the Act and see whether it really relates to and is convenient and appropriate to pro- mote the public health. It matters not that the legislature may in the title to the Act, or in its body, declare that it is intended for the im- provement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law. . . . It is plain that this is not a health law, and that it has no relation whatever to the public health. Under the guise of promoting the pub- lic health the legislature might as well have banished cigar-making from all the cities of the State, or confined it to a single city or town, or have placed under a similar ban the trade of a baker, of a tailor, of a shoe- maker, of a woodcarver, or of any other of the innocuous trades carried on by artisans in their own homes. The power would have been the same, and its exercise, so far as it concerns fundamental, constitutional rights, could have been justified by the same arguments. Such legisla- tion may invade one class of lights to-daj' and another to-morrow, and if it can be sanctioned under the Constitution, while far removed in time we will not be far away in practical statesmanship from those ages when governmental prefects supervised the building of houses, the rear- ing of cattle, the sowing of seed, and the reaping of grain, and govern- mental ordinances regulated the movements and labor of artisans, the rate of wages, the price of food, the diet and clothing of the people, and a large range of other affairs long since in all civilized lands re- garded as outside of governmental functions. Such governmental interferences disturb the normal adjustments of the social fabric, and usually derange the delicate and complicated machinery of industry and cause a score of ills while attempting the removal of one. . . . . The order should be affirmed. All concur. Order affirmed. 632 PEOPLE V. MARX. [CHAP^IV, PEOPLE V. MAEX. New York Court of Appeals. 1885. [99 N. Y. 377.] F. B. Coudert and Wheeler H. Peckham, for appellant. Samuel Hand, for respondent. Rapallo, J. The defendant was convioted in the Court of General Sessions of tlie city and county of New York, of a violation of the sixth section of an Act entitled " An Act to prevent Deception in Sales of Dairy Products." Chap. 202 of the Laws of 1884. On appeal to the General Term of the Supreme Court in the first department, the conviction was affirmed, and the defendant now appeals to this court from the judgment of affirmance. The main ground of the appeal is that the section in question is un- constitutional and void. The section provides as follows : " § 6. No person shall manufacture out of any oleaginous sub- stances, or any compound of the same, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk or cream of the same, or shall sell or ofier to sell the same as an article of food. This provision shall not apply to pure skim-milk cheese produced from pure skim-milk." The rest of the section sub- jects to heavy punishments by fine and imprisonment, " whoever violates the provisions of this section." The indictment charged the defendant with having on the 31st of October, 1§84, at the city of New York, sold one pound of a certain article manufactured out of divers oleaginous substances and com- pounds thereof, other than those produced from unadulterated milk, to one J. M., as an article of food, the article so sold being designed to take the place of butter produced from pure unadulterated milk or cream. It is not charged that the article so sold was represented to be butter, or was sold as such, or that there was any intent to deceive or defraud, or that the article was in any respect unwholesome or delete- rious, but simplj' that it was an article designed to take the place of butter made from pure milk or cream. On the trial the prosecution proved the sale by the defendant of the article known as oleomargarine or oleomargarine butter. That it was sold at about half the price of ordinary dairy butter. The purchaser testified that the sale was made at a kind of factory, having on the outside a large sign "Oleomargarine." That he knew he could not get butter there, but knew that oleomargarine was sold there. And the district attornej' stated that it would not be claimed that there was any fraudulent intent on the part of the defendant, but that the whole CHAP. IV.J PEOPLE V. MAEX. 633 claim on the part of the prosecution was that the sale of oleomargarine as a substitute for dairy butter was prohibited by the statute. On the part of the defendant it was proved by distinguished chem- ists that oleomargarine was composed of the same elements as dairy butter. That the only difference between them was that it contained a smaller proportion of a fatty substance known as butterine. That this butterine exists in dairy butter only in a small proportion — from three to six per cent. That it exists in no other substance than butter made from milii and it is introduced into oleomargarine butter by adding to the oleomargarine stock some milk, cream or butter, and churning, and when this is done it has all the elements of natural butter, but there must always be a smaller percentage of butterine in the manu- factured product than in butter made from milk. The only effect of the butterine is to give flavor to the butter, having nothing to do with its wholesomeness. That the oleaginous substances in the oleomar- garine are substantially identical with those produced from milk or cream. Professor Chandler testified that the only difference between the two articles was that dairy butter had more butterine. That oleo- margarine contained not over one per cent of that substance, while dairy butter might contain four or five per cent, and that if four or five per cent of butterine were added to the oleomargarine, there would be no difference ; it would be butter ; irrespective of the sources, they would be the same substances. According to the testimony of Professor Morton, whose statement was not controverted or ques- tioned, oleomargarine, so far from being an article devised for pur- poses of deception in trade, was devised in 1872 or 1873 by an eminent French scientist who had been employed by the French gov- ernment to devise a substitute for butter. Further testimony as to the character of the article being offered, the district attorney announced that he did not propose to controvert tliat already given. Testimony having been given to the effect that oleomargarine butter was precisely as wholesome as dairy butter, it was, on motion of the district attorney, stricken out, and the defend- ant's counsel excepted. The broad ground was taken at the trial, and boldly maintained on the argument of this appeal, that the manufacture or saie of any oleaginous compound, however pure and wholesome, as an article of food, if it is designed to take the place of dairy butter, is by this act made a crime. The result of the argument is that if, in the progress of science, a process is discovered of preparing beef tallow, lard, or any other oleaginous substance, and communicating to it a palatable flavor so as to render it serviceable as a substitute for dairy butter, and equally nutritious and valuable, and the article can be produced at a comparatively small cost, which will place it within the reach of those who cannot afford to buy dairy butter, the ban of this statute is upon it. Whoever engages in the business of manufacturing or selling the prohibited product is guilty of a crime ; the industry must be suppressed ; those who could make a livelihood 634 PEOPLE V. MARX. [CHAP. TV. by it are deprived of that privilege, the capital invested in the busi- ness must be sacrificed, and such of the people of the State as Cannot afford to boy dair^' butter must eat their bread unbuttered. The references which have been here made to the testimony on the trial are not with the view of instituting any comparison between the relati"ve merits of oleomargarine and dairj' butter, but rather as illus- trative of the character and eflfect of the statute whose validity is in question. The indictment upon which the defendant was convicted does not mention oleomargarine, neither does the section (§ 6) of the statute, although the article is mentioned in other statutes, which will be referred to. All the witnesses who have testified as to the qualities of oleomargarine may be in error, still that would not change a par- ticle the nature of the question, or the principles by which the validity of the act is to be tested. Section 6 is broad enough in its terms to embrace not only oleomargarine, but any other compound, however wholesome, valuable, or cheap, which has been or may be discovered or devised for the purpose of being used as a substitute for butter. Every such product is rigidly excluded from manufacture or sale in this State. One of the learned judges who delivered opinions at the General Term endeavored to sustain the Act on the ground that it was intended to prohibit the sale of any artificial compound, as genuine butter or ' cheese made from unadulterated milk or cream. That it was that ' design to deceive which the law rendered criminal. If that were a correct interpretation of the Act, we should concur with the learned judge in his conclusion as to its validity, but we could not concur in his further view that such an ofience was charged in the indictment, or proved upon the trial. The express concessions of the prosecuting oflBcer are to the contrary. We do not think that section 6 is capable of the construction claimed. The prohibition is not of the manu- facture or sale of an article designed as an imitation of dairy butter or cheese, or intended to be passed oS as such, but of an article designed to take the place of dairy butter or cheese. The artificial product might be green, red, or white instead of j-ellow, and totally dissimilar in appearance to ordinary dairy butter, yet it might be de- signed as a substitute for butter, and if so, would fall within the pro- hibition of the statute. Simulation of butter is not the act prohib- ited. There are other statutory provisions fuUj- covering that subject. Chapter 215 of the Laws of 1882, entitled "An Act to regulate the Manufacture and Sale of Oleomargarine, or any Form of Imitation Butter and Lard, or any Form of Imitation Cheese, for the Prevention of Fraud, and the Better Protection of the Public Health," by its first section prohibits the introduction of any substance into imitation butter or cheese for the purpose of imparting thereto a color resembling that of yellow butter or cheese. The second section prohibits the sale of oleomargarine or imitation butter thus colored, and the third section prohibits the sale of any article in semblance of natural cheese, not the CHA.P. IV.] PEOPLE V. MAEX. 635 legitimate product of the dairy, unless plainly marked " imitation cheese." Chapter 238 of the Laws of 1882 is entitled " An Act for the Protec- tion of Dairymen, and to prevent Deception in the Sales of Butter and Cheese," and provides (§ 1) that every person who shall manufacture for sale, or offer for sale, or export any article in semblance of butter or cheese, not the legitimate product of the dair^', must distinctly and durably stamp on the side of every cheese, and on the top and side of every tub, firkin, or package, the words "oleomargarine butter," or if containing cheese, '^ imitation cheese," and chapter 246 of the Laws of 1882, entitled " An Act to prevent Fraud in the sale of Oleomarga- rine, Butterine, Suine, or other Substance not Butter," makes it a mis- demeanor to sell at wholesale or retail anj' of the above articles representing them to be butter. These enactments seem to cover the entire subject of fraudulent imitations of butter, and of sales of other compounds as-dairy products, and they are not repealed by the Act of 1884, although that Act contains an express repeal of nine other statutes, eight of which are directed against impure or adulterated dairy products, and one against the use of certain coloring matter in oleomargarine. The provisions of this last Act are covered by one of the Acts of 1882 above cited, and the provisions of the repealed Acts in relation to dairy products are covered by substituted provisions in the Act of 1884, but the statutes directed against fraudulent simula- tions of butter, and the sale of any such simulations as dairj' butter, are left to stand. Further statutes to the same effect were enacted in 1885. Consequently, if the provisions of section 6 should be held invalid, there would still be ample protection in the statutes against fraudulent imitations of dairy butter, or sales of such imitations as genuine. It appears to us quite clear that the object and effect of the enact-- ment under consideration were not to supplement the existing pro- visions against fraud and deception by means of imitations of dairy butter, but to take a further and bolder step, and by absolutely pro- hibiting the manufacture or sale of any article which could be used as a substitute for it, however openly and fairly the character of the substitute might be avowed and published, to drive the substituted article from the market, and protect those engaged in the manufac- ture of dairy products, against the competition of cheaper substances, capable of being applied to the same uses, as articles of food. The learned counsel for the respondent frankly meets this view, and claims in his points, as he did orally upon the argument, that even if it were certain that the sole object of the enactment was to protect the dairj' industry in this State against the substitution of a cheaper article made from cheaper materials, this would not be beyond the power of the legislature. This we think is the real question presented in the case. Conceding that the only limits upon the legislative power of the State are those imposed by the State Constitution and that of the United States, we are called upon to determine whether or not 636 PEOPLE V. MARK. [CHAP. IV, those limits are transgressed by an enactment of this description. These limitations upon legislative power are necessarily ver3' general in their terms, but are at the same time very comprehensive. The Constitution of the State provides (art. 1, § i), that no member of this State shall be disfranchised, or deprived of any of the rights and privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers. Section 6 of article 1 provides that no person shall be deprived of life, liberty, or property, without due pro- cess of law. And the Fourteenth Amendment to the Constitution of the United States provides that " no State sttall 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." These con- stitutional safeguards have been so thoroughly discussed in recent cases that it would be superfluous to do more than refer to the con- clusions which have been reached, bearing upon the question now under consideration. Among these no proposition is now more firmly settled than that it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pur- suit, not injurious to the community, as he may see fit. Liue-Stock Ass'n v. The Crescent City, etc. 1 Abb. [U.S.] 398 ; Slaughter-IIouse Cases, 16 Wall. 106 ; Corfieldv. Corijell,A Wash. C. C. 380; Matter of Jacobs, 98 N. Y. 98. The term " liberty," as protected by the Constitution, is not cramped into a mere freedom from phj-sical re- straint of the person of the citizen, as by incarceration, but is deemed to embrace the rigiit of man to be free in the enjoyment of the faculties •with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. In the language of Andrews, J., in Bertholfv. O'Beilly, 74 N. Y. 515, the right to liberty embraces the right of man " to exercise his faculties and to follow a lawful avocation for the support of life," and as expressed by Earl, J., in In re Jacobs, "one may be deprived of his liberty, and his constitutional right thereto violated, without the actual re- straint of his person. Liberty in its broad sense, as understood in this country', means the right not only of freedom from servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his live- lihood in any lawful calling, and to pursue any lawful trade or avocation." Who will have the temerity to say that these constitutional princi- ples are not violated by an enactment which absolutelj'' prohibits an important branch of industry for the sole reason that it competes with another, and may reduce the price of an article of food for the human race? Measures of this kind are dangerous even to their promoters. If the argument of the respondent in support of thq absolute power of CHAP. IV.] POWELL V. PENNSYLVANIA. 637 the legislature to prohibit one branch of industry for the purpose of protecting another with which it competes can be sustained, why could not the oleomargarine manufacturers, should they obtain sufficient power to influence or control the legislative councils, prohibit the manufacture or sale of dairy products? Would arguments then be found wanting to demonstrate the invalidity under the Constitution of such an act? The principle is the same in both cases. The num- bers engaged upon each side of the controversj' cannot influence the question here. Equal rights to all are what are intended to be secured by the establishment of constitutional limits to legislative power, and impartial tribunals to enforce them. Illustrations' might be indefinitely multiplied of the evils which would result from legislation which should exclude one class of citi- zens from industries, lawful in other respects, in order to protect another class against competition. We cannot doubt that such legis- lation is violative of the letter, as well as of the spirit of the consti- tutional provisions before referred to, nor that such is the character of the enactment under which the appellant was convicted. The judgment of the General Term and of the Court of Sessions should be reversed. All concur. Judgment reversed.^ POWELL V. PENNSYLVANIA. Supreme Coukt of the United States. 1887. [127 U. S. 678.] The case is stated in the opinion. Mr. J). T. Watson and Mr. Lyman B. Gilbert, for plaintiff in error. Mr. W. B. Rodgers was with them on the brief. Mr. Wayne Mac Veagh, for defendant in error. Mr. A. H. Winter- steen was with him on the brief. Me. Justice Harlan delivered the opinion of the court. This writ of error brings up for review a judgment of the Supreme Court of Pennsylvania, sustaining the validity of a statute of that Commonwealth relating to the manufacture and sale of what is com- monly called oleomargarine butter. That judgment, the plaintiflT in error contends, denies to him certain rights and privileges specially claimed under the Fourteenth Amendment to the Constitution of the United States. By Acts of the General Assembly of Pennsylvania, one approved May 22, 1878, and entitled " An Act to prevent Deception in the Sale of Butter and Cheese," and the other approved May 24, 1883, and entitled 1 And so People v. Gillson, 109 N. Y. 389 (1888). Compare People v. .Rosenberg, 138 N. Y. 410 (1893). — Ed. . 638 POWELL V. PENNSYLVANIA. [CHAP. IV. "An Act for the Protection of Dainmen, and to prevent Deception in Sales of Butter and Cheese," provision was made for the stamping, branding, or marliing, in a prescribed mode, manufactured articles or substances in semblance or imitation of butter or cheese, not the legiti- mate product of the dairy, and not made exclusively of milk or cream, but into which oil, lard, or fat, not produced from milk or cream, entered as a component part, or into which melted butter or any oil thereof had been introduced to take the place of cream. Laws of Pennsylvania, 1878, p. 87 ; 1883, p. 43. But this legislation, we presume, failed to»accomplish the objects in- tended by the legislature. For, by a subsequent Act, approved May 21, 1885, and which took effect July 1, 1885, entitled " An Act for the Protection of the Public Health and to prevent Adulteration of Dairy Products and Fraud in the Sale thereof," Laws of Pennsylvania, 1885, p. 22, No. 25, it was provided, among other things, as follows : "Section 1. That no person, firm, or corporate body shall manu- facture out of any oleaginous substance or any compound of the same, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk or cream from the same, or of anj' imita- tion or adulterated butter or cheese, nor shall sell or offer for sale, or have in his, her, or their possession, with intent to sell the same, as an article of food. " Section 2. Every sale of sneh article or substance, which is pro- hibited by the first section of this Act, made after this Act shall take effect, is hereby declared to be unlawful and void, and no action shall be maintained in any of the courts in tliis State to recover upon any contract for the sale of anj* such article or substance. " Section 3. Every person, company, firm, or corporate body who shall manufacture, sell, or offer or expose for sale or have in his, her, or their possession with intent to sell, any substance, the manufacture and sale of which is prohibited by the first section of this Act, shall, for every such offence, forfeit and pay the sum of one hundred dollars, which shall be recoverable with costs by any person suing in the name of the Commonwealth as debts of like amounts are by law recoverable ; one half of which sum, when so recovered, shall be paid to the proper county treasurer for the use of the county in which suit is brought and the other half to the person or persons at whose instance such a suit shall or may be commenced and prosecuted to recovery. " Section 4. Every person who violates the provisions of the first section of this Act, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than one hundred dol- lars, nor more than three hundred, or by imprisonment in the county jail for not less than ten nor more than thirty days, or both such fine and imprisonment for the first offence, and imprisonment for one year for every subsequent oflience." The plaintiff in error was indicted, under the last statute, in the CHAP. IV.j POWELL V. PENNSYLVANIA. 639 Court of Quarter Sessions of the Peace in Dauphin County, Pennsyl- vania. The charge in the first count of the indictment is, that he unlawfully sold, " as an article of food, two cases, containing five pounds each, of an article designed to take the place of butter produced from pure, unadulterated miliv or cream from milk, the said article so sold, as aforesaid, being an article manufactured out of certain oleaginous substances and compounds of the same other than that produced from unadulterated milk or cream from milk, and said article so sold, as aforesaid, being an imitation butter.'' In the second count the charge is that he unlawfully had in his possession, "with intent to sell the same, as an article of food, a quantit3', viz., one hundred pounds, of imitation butter, designed to take the place of butter produced from pure, unadulterated milk or cream from the same, manufactured out of certain oleaginous substances, or compounds of the same other than that produced from milk or cream from the same." It was agreed, for the purposes of the trial, that the defendant, on July 10, 1885, in the city of Harrisburg, sold to the prbsecuting witness, as an article of food, two original packages of the kind described in the first count ; that such packages were sold and bought as butterine, and not as butter produced from pure, unadulterated milk or cream from unadulterated milk ; and that each of said packages was, at the time of sale, marked with the words, " Oleomargarine Butter," upon the lid and side in a straight line, in Roman letters half an inch long. It was also agreed that the defendant had in his possession one hun- dred pounds of the same article, with intent to sell it as an article of food. This was the case made bj- the Commonwealth. The defendant then oflered to prove by Prof. Hugo Blanck that he saw manufactured the article sold to the prosecuting witness ; that it was made from pure animal fats ; that the process of manufacture was clean and wholesome, the article containing the same elements as dairy butter, the on]}' difference between them being that the manufactured article contained a smaller proportion of the fatty substance known as butterine ; that this butterine existed in dairy butter in the proportion of from three to seven per cent, and in the manufactured article in a smaller proportion, and fl^s increased in the latter by the introduction of milk and cream ; that this having been done, the article contained all the elements of butter produced from pure unadulterated milk or cream from the same except that tl^fck'centage of butterine was slightly smaller ; that the only effect of butWine was to give flavor to the butter and that it had nothing to do with its wholesomeness ; that the oleagi- nous substances in the manufactured article were substantially identical 'Umi those produced from milk or cream ; and that the article sold to the prosecuting witness was a wholesome and nutritious article of food, in all respects as wholMome as butter produced from pure unadulterated milk or cream from unSflulterated milk. The defendant also ofTelred to prove that he was engaged in the gro- cery a^ provision business In the city of Harrisburg, and that the 640 POWELL V. PENNSYLVANIA. [CHAP. IV, article sold bj' him was part of a large and valuable quantity manufac- tured prior to the 21st of May, 1885, in accordance with the laws of this Commonwealth relating to the manufacture and sale of said article, and so sold by him ; that for the purpose of pi-osecuting that business large investments were made bj' him in the purchase of suitable real estate, in the erection of proper buildings, and in the purchase of the necessarj' machinery and ingredients ; that in his traffic in said article he made large profits ; and, if prevented from continuing it, the value of his property employed therein would be entirely lost, and he be deprived of the means of livelihood. To each offer the Commonwealth objected upon the ground that the evidence proposed to be introduced was Immaterial and irrelevant. The purpose of these offers of proof was avowed to be : (1) To show that the article sold was a new invention, not an adulteration of dairy products, nor injurious to the public health, but wholesome and nutri- tious as an article of food, and that its manufacture and sale were in conformity to the Acts of May 22, 1878, and May 24, 1883. (2) To show that the statute upon which the prosecution was founded, was unconstitutional, as not a lawful exercise of police power, and, also, because it deprived the defendant of the lawful use " of his propertj-, liberty, and faculties, and destroj'S his property without making com- pensation." The court sustained the objection to each offer, and excluded the evidence. An exception to that ruling was dulj' taken by the defendant. A verdict of guilty having been returned, and motions in arrest of judgment and for a new trial having been overruled, the defendant was adjudged to pay a fine of one hundred dollars and costs of prosecution, or give bail to pay the same in ten days, and be in custodj' until the judgment was performed. That judgment was aflBrmed by the Supreme Court of the State. 114 Penn. St. 265. This case, in its important aspects, is governed by the principles announced in Mugler v. Kansas, 123 U. S. 628. It is immaterial to inquire whether the acts with which the defendant is charged were authorized by the statute of M&y 22, 1878, or by that of May 24, 1883. The present prosecution is founded upon the statute of May 21, 1885 ; and if that statute be not in conflict with the Consti- tution of the United States, the judgment of the Supreme Court of Pennsylvania must be affirmed. It is contended that the last statute is void in that it deprives all coming within its provisions of rights of liberty and property without due process of law, and denies to them the equal protection of the laws ; rights which are secured by the Fourteenth Amendment to the Consti- tution of the United States. It is scarcely necessary to say that if this statute is alegitimate exer- cise of the police power of the State for the protection of the health of the people, and for the prevention of fraud, it is not inconsistent with that amendment ; for it is the settled doctrine of this court that, as government is organized for the purpose, among others, of preserving CHAP. IV. J POWELL V. PENNSYLVAN'IA. 641 the public health and the public morals, it cannot divest itself of the power to provide for those objects ; and that the Fourteenth Amend- ment was not designed to interfere with the exercise of that power by the States. Mugler v. Kansas, 123 U. S. 663 ; Butchers' Union Co. V. Crescent City Co., Ill U. S. 746, 751 ; BarUer v. Connolly, 113 U. S. 27; Tick Wo v. Hopkuis, 118 U. S. 356. The question, therefore, i« whether the prohibition of the manufacture out of oleaginous substances, or out of an^' compound thereof other than that produced from unadulterated milk or cream from unadulterated milk, of an article designed to take the place of butter or cheese pro- duced from pure unadulterated milk or ci'eam from unadulterated milk, or the prohibition upon the manufacture of any imitation or adulterated butter or cheese, or upon the selling or offering for sale, or having in possession with intent to sell, the same, as an article of food, is a law- ful exercise by the State of the power to protect, by police regulations, the public health. The main proposition advanced by the defendant is tha,t his enjoy- ment upon terms of equahty with all others in similar circumstances of the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling propert}-, is an essential part of his rights of libert}- and property, as guaranteed by the Fourteenth Amendment. The court assents to this general proposition as embodying a sound principle of constitutional law. But it cannot adjudge that the defendant's rights of liberty and property, as thus defined, have been infringed by the statute of Pennsylvania, without holding that, although it ma}' have been enacted in good faith for the objects expressed in its title, namely, to protect the public health and to prevent the adulteration of dairy products and fraud in the sale thereof, it has, in fact, no real or sub- stantial relation to those objects. Mugler v. Kansas, 123 U. 8. 623, 661. The court is unable to affirm that this legislation has no real or substantial relation to such objects. It will be observed that the offer in the court below was to show by proof tliat the particular articles the defendant sold, and those in his possession for sale, in violation of the statute, were, in fact, wholesome or nutritious articles of food. It is entireh- consistent with that offer that many, indeed, that most kinds of oleomargarine butter in the market contain ingredients that are or may become injurious to health. The court cannot say, from anything of which it may take judicial cog- nizance, that such is not the fact. Under the circumstances disclosed in the record, and in obedience to settled rules of constitutional con- struction, it must be assumed that such is the fact. "Every possible presumption," Chief Justice Waite said, speaking for the court in Sink- ing Fund Cases, 99 U. S. 700, 718, " is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule." See, also, VOL. 1. — 41 642 POWELL V. PENNSYLVANIA. [CHAP. IV. Fletcher v. Peck, 6 Cranch, 87, 128 ; Dartmouth College v. Woodward, 4 Wheat. 518, 625 ; Livingston v. Darlington, 101 U. S. 407. Wliether the manufacture of oleomargarine, or imitation butter, of the kind described in the statute, is, or may be, conducted in such a wa^-, or with such skill and secrecj', as to baffle ordinarj^ inspection, or whether it iuvolves such danger to the public health as to require, for the protection of the people, the entire suppression of the business, rather than its regulation in such manner as to permit the manufacture and sale of articles of that class that do not contain noxious ingredients, are questions of fact and of public policy w^ich belong to the legislative department to determine. And as it does not appear upon the face of the statute, or from any facts of which the court must take judicial cognizance, that it infringes rights secured by the fundamental law, the legislative determination of those questions is conclusive upon the courts. It is not a part of their functions to conduct investigations of facts entering into questions of public policj- merely, and to sustain or frus- trate the legislative will, embodied in statutes, as thej- may happen to approve or disapprove its' determination of such questions. The power which the legislature has to promote the general welfare is very great, and the discretion which that department of the government has, in the emploj-ment of means to that end, is ver^- large. While both its power and its discretion must be so exercised as not to impair the fundamental rights of life, libertj*, and property ; and while, according to the prin- ciples upon which our institutions rest, " the very idea that one man may be compelled to hold his life, or the means of living, or anj^ material right essential to the enjoj'ment of life, at the mere will of another, seems to be intolerable in any eounfay where freedom prevails, as being the essence of slavery itself;" yet, "in manj- cases of mere adminis- tration, the responsibility is purely' political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of public opinion or by means of the suffrage." Yick Wo v. Hopkins, 118 U. S. 370. Tiie case before us belongs to the latter class. The Legislature of Pennsylvania, upon the fullest investigation, as we must conclusively presume, and upon reasonable grounds, as must be assumed from the record, has determined that the prohibition of the sale, or offering for sale, or having in possession to sell, for purposes of food, of any article manufactured out of oleaginous substances or com- pounds other than those produced from unadulterated milk or cream from unadulterated milk, to take the place of butter produced from un- adulterated milk or cream from unadulterated milk, will promote the public health, and prevent frauds in the sale of such articles. If all that can be said of this legislation is that it is unwise, or unnecessarily oppressive to those manufacturing or selling wholesome oleomargarine, as an article of food, their appeal must be to the legislature, or to the ballot-box, not to the judiciary. The latter cannot interfere without usurping powers committed to another department of government. It is argued, in behalf of the defendant, that if the statute in question CHAP. IV.] POWELL V. PENNSYLVANIA. 643 is sustained as a valid exercise of legislative power, then nothing stands in the way of the destruction bj" the legislative department of the con- stitutional guarantees of liberty and property. But the possibility- of the abuse of legislative power does not disprove its existence. That possibility' exists even in reference to powers that are conceded to exist. Besides, the judiciary department is bOund not to give effect to statutory enactments that are plainly forbidden by the Constitution. This dut^', the court has said, is always one of extreme delicacy ; for, apart from the necessity of avoiding conflicts between co- ordinate branches of the government, whether State or national, it is often difficult to determine whether such enactments are within the powers granted to or possessed b3- the legislature. Nevertheless, if the incompatibility of the Constitu- tion and the statute is clear or palpable, the courts must give effect to the former. And such would be the dnty of the court if the State legis- lature, under the pretence of guarding the public health, the public morals, or the public safety, should invade the rights of life, liberty,' or propert}', or other rights, secured by the supreme law of the land. The objection that the statute is repugnant to the clause of the Four- teenth Amendment forbidding the denial by the State to anj' person witliin its jurisdiction of the equal protection of the laws, is untenable. The statute places under the same restrictions, and subjects to like penalties and burdens, all who manufacture, or sell, or offer for sale, or keep in possession to sell, the articles embraced by its prohibitions ; thus recognizing and preserving the principle of equality among those engaged in the same business. Jiarbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 703 ; Missouri Pacific Railway Co. v. Humes, 115 U. S. 512, 519. It is also contended that the Act of May 21, 1885, is in conflict with the Fourteenth Amendment in that it deprives the defendant of his property' without that compensation required by law. This contention is without merit, as was held in Mugler v. Kansas. Upon the whole case, we are of opinion that there is no error in the judgment, and it is, therefore, Affirmed.^ [Field, J. gave a dissenting opinion in the course of which he said : " Two questions are thus distinctly presented : first, whether a State can lawfully prohibit the manufacture of a health}' and nutritious article of food designed to take the place of butter, out of any oleaginous sub- stance, or compound of the same, other than that produced from pure milk or cream, and its sale when manufactured ? and, second, whether a State can, without compensation to the owner, prohibit the sale of an article of food, in itself healthy and nutritious, which has been manu- factured in accordance with its laws ? " These questions are not presented in the opinion of the court as nakedly and broadly as here stated, but they nevertheless truly indicate the precise points involved, and nothing else. . . . 1 See Weidemanv. The State, 56 N. W. Rep. 688 (Ifinn. 1893). —Ed. 644 POWELL V. PENNSYLVANIA. [CHAP. IV. "It is the clause [of the Fourteenth Amendment] declaring that no State shall ' deprive anj' person of life, liberty-, or property without due process of law,' which applies to the present case. This provision is found in the constitutions of nearl}' all the States, and was designed to prevent the arbitrar}' deprivation of life and libertj', and the arbitrary spoliation of propert}'. As I said on a former occasion, it means that neither can be taken, or the enjo_vment thereof impaired, except in the course of the regular administration of the law in the established tribunals. It has alwajs been supposed to secure to ever^' person the essential conditions for the pursuit of happiness, and is therefore not to be construed in a narrow or restricted sense. Ex parte Virginia, 100 U. S. 339, 366. " Bj' ' libertj-,' as thus used, is meant something more than freedom from phj'sical restraint or imprisonment. It means freedom not merely to go wherever one maj- choose, but to do such acts as he may judge best for his interest not inconsistent with the equal rights of others ; that is, to fbllow such pursuits as may be best adapted to liis faculties, and which will give to him the highest enjoj'ment. As said by the Court of Appeals of New York, in People v. Marx, 'the term " liberty," as protected bj- the Constitution, is not cramped into a mere freedom from physical restraint of the person of the citizen, as b^' incarceration, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed bj- his Creator, subject only to such restraints as are necessary- for the common welfare,' 99 N. Y. 377, 386 ; and again. In the Matter of Jacobs: ' Libertj-, in its broad sense, as understood in this country, means the right not onl}- of freedom from actual servitude, imprisonment, or restraint, but the right of one to use his faculties, in all lawful ways, to live and work where he will, 'to earn his livelihood in any lawful calling, and to pursue any lawful trade or vocation.' 98 N. Y. 98. " With the gift of life there necessarily goes to every one the right to do all such acts, and follow all such pursuits, not inconsistent with the equal rights of others, as may support life and add to the happiness of its possessor. The right to pursue one's happiness is placed by the Declaration of Independence among the inalienable rights of man, with which all men are endowed, not by the grace of emperors or kings, or by force of legislative or constitutional enactments, but by their Creator ; and to secure them, not to grant them, governments are instituted among men. The right to procure healthy and nutritious food, by which life may be preserved and enjoyed, and to manufacture it, is among these inalienable rights, which, in my judgment, no State can give and no State can take away except in punishment for crime. It is involved in the right to pursue one's happiness. This doctrine is happily ex- pressed "and illustrated in People v. Marx, cited above, where the precise question here was presented."]^ I " Our American constitutions ... are historical instruments, the possessions of a people with a legal history beginning, not with the Declaration of Independence, but with that of their English brethren. They are not the beginning, but the end ; lor CHAP. IV.] POWELL V. PENNSYLVANIA. 645 they represent the last stage in a series of changes, the great landmarks of which are the Magna Charta, the Petition of Kight, tlie Habeas Corpus Act, and the Bill of Kights. " It is obvious, therefore, that one who seeks to put a true construction on any part of oar constitutions must have a constant eye to its history, and this is particularly the case when one is dealing with a clause in a bill of rights, because an American bill of rights is a collection of words and clauses, many of which have had a definite meaning for centuries. It may be true that if our constitutions are to meet all the requirements of a constantly advancing civilization, they must receive a broad and progressive inter- pretation. It is also true that upon no legal principle can an interpretation be supported, which ignores the meaning universally accorded to a word or clause for centuries, and the meaning which must, therefore, have been intended by those who inserted it in the Constitution. It is perhaps well to bear thiii in mind at a time when there is a manifest tendency to regard constitutional prohibitions as a panacea for moral and political evils, to look upon courts of law, as distinguished from legislatures, as the only real protectors of individual rights, and to trust to tlie courts for remedies for evils resulting entirely from a failure to attend to political duties, — at a time, that is to say, when there is danger of loose and uuhistorical constitutional interpre- tation. . . . "It may, however, be contended that although tlie term 'liberty' is not used in the clauses under discussion in its broadest sense to include all the rights one has in a body politic, it does include other great and important riglits besides that of personal liberty, as, for example, religious liberty, liberty of speech and of press, liberty to bear arms, of petition and discussion, liberty to obtain justice in the courts, and many others, all of which are to-day regarded as fundamental rights in this country.^ It may be argued, in other words, that the term ' liberty ' is a broader one than the terms used in Magna Charta, and may well be interpreted to include other rights besides that of personal freedom, for the reason that it was probably intended so to do by the framers of our constitutions. There are several answers to this argument. In the first place, the clauses in our American constitutions are, as we have seen, mere copies of the thirty- ninth article of Magna Charta, which knows nothing of such rights as the above. In the second place, the term 'liberty,' while it was not used in the thirty-ninth article, was used in its present connection with the terms ' life ' and ' property ' long before the framing of our American constitutions, and when so used meant simply personal liberty. It would, therefore, naturally be used by the framers of our constitutions in that sense. To establish this it is only necessary to refer to Blackstone. In one place Blackstone remarks : ' The Great Charter protected every individual of the nation in the free enjoyment of his life, liberty, and property unless declared to be forfeited by the judgment of his peers or the law of the land,' referring, of course, to the thirty- ninth article. In another place he discusses the subject more at length, and after de- fining the absolute rights of individuals, 'which are usually called their liberties,' to be ' those rights which are so in their primary and strictest sense, such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy whether out of society or in it,' he goes on to enumerate them : ' These rights may be reduced to three principal or primary articles : the right of personal security ' (under which he includes life, limb, health, and reputation, the same rights which Coke and other commentators on the thirty-ninth article include under the terms ' aliquo modo destruatur,' and which may fairly be included under the terra ' life ' in our con- stitutions), ' the right of personal liberty, and the right of private property, because, as there is no other known method of compulsion or of abridging man's natural free will but by an infringement of one or the other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.' 1 Bl. Com's, chapter on 'Absolute Rights 1 See Judge Cooley's discussion of the Fourteenth Amendment in the Appendix of his edition of Story on the Constitution. See also bis discussion of " Civil Eights " in the " Principles of Constitutional Law." 646 MISSOURI PAO. K'Y CO. V. MACKEY. [cHAP. IV. In Missouri Pac. B'y Co. v. MacJcey, 127 U. S. 205 (1888). In holding valid a law of the State of Kansas which made railroad com- panies responsible to its servants for injuries from the negligence or misconduct of their fellow-servants, Mr. Justice Field, for the court, said : " The objection that the law of 1874 deprives the raUroad com- panies of the equal protection of the laws is even less tenable than the one considered. It seems to rest upon the theory that legislation which is special in its character is necessarily- within the constitutional inhibi- tion ; but nothing can be further from the fact. The greater part of all legislation is special, either, in the objects fought to be attained hy it, or in the extent of its application. Laws for the improvement of muni- cipalities, the opening and widening of. particular streets, the intro- duction of water and gas, and other arrangements for the safet3' and convenience of their inhabitants, and laws for the irrigation and drain- age of particular lands, for the construction of levees and the bridging of navigable rivers, are instances of this kind. Such legislation does of Persons.' Blackstone defines personal liberty to be the 'power of locomotion, of changing situation, or moving one's person to whatever place one's inclination may direct, without imprisonment or restraint, unless by due course of law,' and he ob- serves that it is perhaps the most important of all civil rights. He means by personal liberty simply freedom from restraint of the person. It is instructive to note that Blackstone, in discussing each ' absolute ' right, points out that it is declared and secured by the famous article of the Great Charter. He cites the words ' nullus liber homo aliquo modo destruatur ' as the constitutional security for the right of life or personal security ; the words ' capiatur vel imprisonetur ' for the right of personal lil)erty, and the words ' dissaisiatur de libero tenemento ' for the right of private prop- erty. It is evident, therefore, that his classification of fundamental rights under the terms ' life,' ' liberty,' and ' property,' like that of all other commentators, is derived from the thirty-ninth article. It is evident, aleo, that he had no conception of religious liberty, liberty of press and speech, or political liberty (meaning thereby the right to take part in the government, e.g., the right to vote) as absolute rights of individuals. They are not mentioned in his discussion of the subject. He does, indeed, name cer- tain other important individual rights besides those of life, personal freedom, and property, such as the right of petition, of securing justice in the courts, and of bearing arms ; but he says that these 'serve principally as networks or barriers to protect and maintain inviolate the three great and primary rights.' " In ' Care's English Liberties,' a collection of important English charters which had a wide circulation in the American colonies, the fifth edition of which was pub- lished in Boston in 1721, we find the same classification of rights in the same terms, and in every case the term ' liberty' is explained to mean freedom of the person from restraint. For example, in hi.s comment on the Habeas Corpus Act, the author says : 'There are three things which the law of England (which is a law of mercy) princi- pally regards and taketh care of, viz., life, liberty, and estate. Next to a man's life the nearest thing that concerns him is freedom of his person ; for indeed, what is imprison- ment but a kind of civil death ? Therefore, saith Fortescue, cap. 42, the laws of Eng- land do, in all cases, favor liberty. The writ of habeas corpus is a remedy given by the common law, for such as were unlawfully detained in custody, to procure their liberty.' Care's English Liberties (Ed. 1721) p. 185. " Chancellor Kent made precisely the same enumeration of fundamental rights, witli religious liberty added as a distinct and separate right. Kent's Corn's, vol. 2, chap. 1. There is no suggestion of its being included in the clauses in question. '" — Meaning of the term " Liberti/ " in Federal and State Constitutions, by Charles E. SHATinOK, 4 Harv. Law Rev. 365. — Ed. CHAP. IV.] SPENCER V. MERCHANT. 647 not infringe upon the clause of the Fourteenth Amendment requiring equal protection of the laws, because it is special in its character ; if in conflict at all with that clause, it must be on other grounds. And when legislation applies to particular bodies or associations, imposing upon them additional liabilities, it is not open to the objection that it denies to them the equal protection of the laws, if all persons brought under its influence are treated alike under the same conditions. A law giving to mechanics a lien on buildings constructed or repaired by them, for the amount of their work, and a law requiring railroad corporations to erect and maintain fences along their roads, separating them from land of adjoining proprietors so as to keep cattle off their tracks, are in- stances of this kind. Such legislation is not obnoxious to the last clause of the Fourteenth Amendment, if all persons subject to it are treated alike under similar circumstances and conditions in respect both of the privileges conferred and the liabilities imposed. It is con- ceded that corporations are persons within the meaning of the amend- ment. Santa Clara County v. Southern Pacific Railroad Company, 118 U. S. 394 ; Pembina Consolidated Silver Mining and Milling Co. V. Pennsylvania, 125 U. S. 187. But the hazardous character of the business of operating a railway would seem to call for special legisla- tion with respect to railroad corporations, having for its object the protection of their employes as well as the safety of the public. The business of other corporations is not subject to similar dangers to their employes, and no objections, therefore, can be made to the legislation on the ground of its making an unjust discrimination. It meets a particular necessity, and all railroad corporations are, without distinc- tion, made subject to the same liabilities. As said by the court below, it is simply a question of legislative discretion whether the same liabili- ties shall be applied to carriers by canal and stage coaches and to persons and corporations using steam in manufactories. See Missouri Pacific Railway Co. v. Humes, 115 U. S. 512, 523 ; Barhier v. Con- nolly, 113 U. S. 27 ; Soon Hing v. Crowley, 113 U. S. 703. Judgment affirmed," SPENCER V. MERCHANT. Supreme Court of the United States. 1888. [125 V. S. 345.] 1 This case was submitted to the general term in Kings County of the Supreme Court of the State of New York under § 1279 of the Code of Civil Procedure, without process, upon an agreed statement of facts signed by the parties, the substance of which, and of the statutes therein referred to, was as follows : . . . [The plaintifl' agreed to sell certain ^ The statement of facts is shortened. — Ed. 648 SPENCER V. MERCHANT. [CHAP. IV. land to the defendant, and to give a deed with a covenant against all incumbrances. The defendant paid a part of the consideration, and in examining the title found an unpaid assessment on the land for the opening of a street.] The case stated by the parties, after setting forth the foregoing facts, continued and concluded as follows : " The plaintiff claims that said assessment of 1881 in question is not a lien or cloud on the title to said premises ; and the defendant refuses to pay the balance of said consideration until the plaintiff allows it to be deducted from the consideration moneji or paj's the same, neither of which is the plaintiff willing to do ; and the plaintiff also claims that the statute of 1881, c. 689, is unconstitutional, and therefore void, for the reason that it is an attempt made bj- the legislature of this State to validate a void assessment (and to do the same without giving the property-holders an opportunity to be heard as to the total amount of the assessment, only providing for a hearing on the apportionment), which was levied upon said premises under and pursuant to c. 217 of the laws of 1869, as amended by c. 619 of the laws of 1870 ; and that the statute of 1881 is clearly void for the further reasons that the defect in the former assessment was jurisdictional, and it has been so declared and decided by the Court of Appeals in the case of /Stuart v. Palmer, 74 N. Y. 183, and is special and invidious, and unjustly and illegally apportioned upon certain individuals without reference to a uniform standard, and is an arbitrary exaction, and is levied on an individual or individuals to the exclusion of others in the same district. The defendant doubts the said claim of the plaintiff. The question sub- - mitted to the court upon this case is as follows: " Is the assessment levied on the property in 1881 in question a good and valid lien or cloud on said property ? " If this question is answered in the affirmative, then judgment is to be rendered in favor of the defendant and against the plaintiff, requir- ing the plaintiff to pay said assessment to deliver a deed according to contract. "If it be answered in the negative, then judgment is to be rendered in favor of the plaintiff, requiring the defendant to take title to said premises in accordance with the contract above mentioned, without the plaintiff paying said assessment or tax, and without deducting the same out of the consideration money." The Supreme Court of New York gave judgment for the defendant, and the plaintiff appealed to the Court of Appeals, which affirmed the judgment and remitted the case to the Supreme Court. 100 N. Y. 585. The plaintiff sued out this writ of error, and assigned for error that it appeared by the record that both tliose courts held that the statute of 1881, 0. 689, and the proceedings under it were constitutional and valid, " whereas the said couits should have decided that the said statute and the proceedings thereunder were in violation of the Consti- tution of the United States and were void, for the reason that they CHAP. IV.] SPENCEK V. MERCHANT. 649 deprived the said plaintiff and the other persons assessed thereunder of their property without due process of law." Mr. Matthew Sale and Mr. Albert Day, for plaintifE in error. Mr. Walter -£'. Ward, for defendant in error. Mr. Justice' Gray, after stating the case as above reported, delivered the opinion of the court. The leading facts of this case are as follows : The original assess- ment of the expenses of regulating, grading and preparing the street for travel was laid by commissioners, as directed by § 4 of the statute of 1869, upon all the lands lying within three hundred feet on either side of the street, and which, in the judgment of the commissioners, would be benefited by the improvement. After the sums so assessed upon some lots had been paid, the Court^of Appeals of the State declared that assessment void, because the statute (although it made ample provision for notice of and hearing upon the previous assessment for laying out the street under § 3), provided no means by which the land-owners might have any notice or opportunity to be heard in regard to the assessment for regulating, grading, and preparing the street for travel under § 4. Stuart v. Palmer, 74 N. Y. 183. The lots, the sums assessed upon which had not been paid, were isolated parcels, not con- tiguous, and some of them not fronting upon the street. By the statute of 1881, a sum equal to so much of the original assessment as remained unpaid, adding a proportional part of the expenses of making that assessment, and interest since, was ordered by the legislature to be levied and equitably apportioned by the supervisors of the county upon and among these lots, after public notice to all parties interested to appear and be heard upon the question of such apportionment ; and that sum was levied and assessed accordingly upon these lots, one of which was owned by the plaintiff. The question submitted to the Supreme Court of the State was whether this assessment on the plaintiff's lot was valid. He contended that the statute of 1881 was unconstitutional and void, because it was an attempt by the legislature to validate a void assessment, without giving the owners of the lands assessed an opportunity to be heard upon the whole amount of the assessment. He thus directly^ and in apt words, presented the question whether he had been unconstitutionally deprived of his property without due process of law, in violation of the first section of the Fourteenth Amendment to the Constitution of the United States, as well as of art. 1, sec. 7, of the Constitution of New York ; and no specific mention of either constitutional provision was necessary in order to entitle him to a decision of the question by any court having jurisdiction to determine it. The adverse judgment of the Supreme Court, affirmed by the Court of Appeals of the State, necessarily involved a decision against a right claimed under the Four- teenth Amendment to the Constitution of the United States, which this court has jurisdiction to review. Bridge Proprietors v. Hdboken Co., 1 Wall. 116, 142 ; Murray v. Charleston, 96 U. S. 432, 442 ; Furman 650 SPEKCEE V. MERCHANT. [CHAP. IV. V. Mchol, 8 Wall. 44, 56 ; Chicago Life Ins. Co. v. Needles, 113 D. S. 574, 579. The jurisdiction of this court, as is well understood, does not extend to a review of the judgment of the State court, so far as it depended upon the Constitution of the State. Provident Institution for Savings V. Jersey City, 113 U. S. 506, 514. Yet, as the words of the two con- stitutions are alike in this respect, the decisions of tlie highest court of the State upon the effect of these words are entitled to great weight. The substance of the former decisions, and the grounds of the judg- ment sought to be reviewed, can hardlylje more compactly or forcibly stated than they have been by Judge Finch in delivering the opinion of the Court of Appeals, as follows : " The Act of 1881 deteraiiues absolutely and conclusively the amount of tax to be raised, and the property to be assessed and upon which it is to be apportioned. Each of these things was within the power of the legislature, whose action cannot be reviewed in the courts upon the ground that it acted unjustlj- or without appropriate and adequate reason. Litchfield v. Vernon, 41 N. Y. 123, 141 ; People v. Brooklyn, 4 N. Y. 427,; People v. Magg, 46 N. Y. 405 ; Horn v. New Lots, 83 N. Y. 100 ; Cooley on Taxation, 450. The legislature may commit the ascertainment of the sum to be raised and of the benefited district to commissioners, but it is not bound to do so, and ma3' settle both ques- tions for itself; and when it does so, its action is necessarily conclusive and beyond review. Here an improvement has been ordered and made, the expense of which might justly have been imposed upon adjacent property benefited by the change. By the Act of 1881, the legislature imposes the unpaid portion of the cost and expense, with the interest thereon, upon that portion of the propert}' benefited which has thus far borne none of the burden. In so doing, it necessarilj- determines two things, viz., the amount to be realized, and the propertj- specially benefited by the expenditure of that amount. The lands might have been benefited by the improvement, and so the legislative determina- tion that they were, and to what amount or proportion of the cost, even if it may have been mistakenl}' unjust, is not open to our review. The question of special benefit and the property to which it extends is of necessity a question of fact, and when the legislature determines it in a case within its general power, its decision must of course be final. We can see in the determination reached possible sources of error and perhaps even of injustice, but we are not at liberty to say that the tax on the property- covered by the law of 1881 was imposed without reference to special benefits. The legislature practically determined that the lands described in that Act were peculiarly benefited by the improvement to a certain specified amount which constituted a just pro- portion of the whole cost and expense ; and while it may be that the process by which the result was reached was not the best attainable, and some other might have been more accurate and just, we cannot for that reason question an enactment within the general legislative power CHAP. IV.J SPENCER V. MERCHANT. 651 That power of taxation is unlimited, except that it mast be exercised for public purposes. Weismer v. Douglas, 64 N. Y. 91. Certainly if the Acts of 1869 and 1870 had never been passed, but the improve- ment of Atlantic Avenue had been ordered, the legislature might have imposed one part or proportion of the cost upon one designated district and the balance upon another. Practically just that was done in this case. In He Van Antwerp, 56 N. Y. 261, an assessment for a street improvement had been declared void by reason of failure to procure necessarj' consents of property-owners. The legislature made a reas- sessment, imposing two thirds of the expense upon a benefited district and one third upon the city at large. The Act was held valid as a new assessment and not an effort to validate a void one. " These views furnish also an answer to the objection that the onlj' hearing given to the land-owner relates to the apportionment of the fixed amount among the lots assessed, and none is given as to the aggregate to be collected. No hearing would open the discretion of the legislature, or be of anj' avail to review or change it. A hearing is given by the Act as to the apportionment among the land-owners, ■which furnishes to them an opportunity to raise all pertinent and avail- able questions, and dispute their liabilitj', or its amount and extent. The precise wrong of which complaint is made appears to be that the land-owners now assessed never had opportunity to be heard as to the original apportionment, and find themselves now practically bound by it as between their lots and those of the owners who paid. But that objection becomes a criticism upon the action of the legislature and the process by which it determined the amount to be raised and the prop- erty to be assessed. Unless by special pen-mission, that is a hearing never granted in the process of taxation. The legislature determines expenditures and amounts to be raised for their payment, the whole discussion and all questions of prudence and proprietj- and justice being confided to its jurisdiction. It may err, but the courts cannot review its discretion. In this case, it kept within its power when it fixed, first, the amount to be raised to discharge the improvement debt incurred by its direction ; and, second, when it designated the lots and property, which in its judgment, by reason of special benefits, should bear the burden ; and having the power, we cannot criticise the reasons or manner of its action. The land-owners were given a hearing, aind so there was no constitutional objection in that respect. Nor was that hearing illusory. It opened to the land-owner an opportunity to assail the constitutional validity of the Act under which alone an apportion- ment could be made, and that objection failing, it opened the only other possible questions, of the mode and amounts of the apportionment itself. "We think the Act was constitutional." 100 N. Y. 587-589. The general principles^ upon which that judgment rests, have been afllrmed by the decisions of this court. The power to tax belongs exclusively to the legislative branch of the government. United States v. iVew Orleans, 98 U. S. 381, 392 ; Meri- 652 SPENCER V. MERCHANT. [CHAP. IV. wether v. Garrett, 102 U. S. 472. In the words of Chief Justice Chase, condensing what had been said long befoi'e by Chief Justice Marshall, "The judicial department cannot prescribe to the legislative depart- ment limitations upon the exercise of its acknowledged powers. The power to tax maj' be exercised oppressively' upon persons ; but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected." Veazie Bank v. Fenno, 8 Wall. 533, 548; McCulloch v. Maryland, 4 Wheat. 816, 428; Providence Bank v. Billings, 4 Pet. 614, 563. See also Kirtland v. Sotchkiss, 100 U. S. 491, 497. Whether the estimate of the value of land for the purpose of taxation exceeds its true value, this court on writ of error to a State court cannot inquire. Kelly v. Pittsburgh, lOU U. S. 78, 80. The legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, such as the laj'ing out, grading or repairing of a street, to be assessed upon the owners of lands benefited thereb}' ; and the determination of the territorial district which should be taxed for a local improvement is within the province of legislative discretion. Willard v. Presbury, 14 Wall. 676 ; Davidson v. New Orleans, 96 U. S. 97 ; Mobile County V. Kimball, 102 U. S. 691, 703, 704 ; Hagar v. Reclamation District, 111 U. S. 701. If the legislature provides for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law. McMillen v. Ander- son, 95 U. S. 37 ; Davidson v. JVew Orleans, and Sagar v. Reclama- tion District, above cited. In Davidson v. New Orleans, it was held that if the work was one which the State had the authoritj- to do, and to pay for by assessments on the property benefited, objections that the sum raised was exorbitant, and that part of the property assessed was not benefited, presented no question under the Fourteenth Amendment to the Constitution, upon which this court could review the decision of the State court. 96 U. S. 100, 106. In the absence of anj- more specific constitutional restriction than the general prohibition against taking property without due process of law, the legislature of the State, having the power to fix the sum neces- sary to be levied for the expense of a public improvement, and to order it to be assessed, either, like other taxes, upon property generally, or only upon the lands benefited by the improvement, is authorized to determine both the amount of the whole tax, and the class of lands which will receive the benefit and should therefore bear the burden, although it may, if it sees fit, commit the ascertainment of either or both of these facts to the judgment of commissioners. When the determination of the lands to be benefited is intrusted to commissioners, the owners may be entitled to notice and hearing upon the question whether their lands are benefited and how much. But the legislature has the power to determine, by the statute imposing the tax, CHAP. IV.] SPENCER V. MERCHANT. 653 what lands, which might be benefited Jjy the improvement, are in fact benefited ; and if it does so, its determination is conclusive upon the owners and the courts, and the owners have no right to be heard upon the question whether their lands are benefited or not, but onl^' upon the validity of the assessment, and its apportionment among the different parcels of the class which the legislature has conclusively determined to be benefited. In determining what lands are benefited by the improvement, the legislature may avail itself of such information as it deems sufficient, either through investigations by its committees, or by adopting as its own the estimates or conclusions of others, whether those estimates or conclusions previously had or had not any legal sanction. In § 4 of the statute of 1869, the assessment under which was held void in Stuart v. Palmer, 74 N. Y. 183, for want of any provision whatever for notice or hearing, the authority to determine what lands, lying within three hundred feet, on either side of the street, were actually benefited, was delegated to commissioners. But in the statute of 1881 the legislature itself determined what lands were benefited and should be assessed. By this statute the legislature, in substance and effect, assumed that all the lands within the district defined in the statute of 1869 were benefited in a sura equal to the amount of the original assessment, the expense of levying it, and interest thereon ; and determined that the lots upon which no part of that assessment had been paid, and which had therefore as yet borne no share of the burden, were benefited to the extent of a certain portion of this sum. That these lots as a whole had been benefited to this extent was conclusively settled by the legislature. The statute of 1881 afforded to the owners notice and hearing upon the question of the equitable apportionment among them of the sum directed to be levied upon all of tliem, and thus enabled them to contest the constitutionality of the statute ; and that was all the notice and hearing to which they were entitled. It is objected to the validity of the ))ew assessment, that it included interest upon the unpaid part of the old assessment, and a proportionate part of the expense of levying that assessment. But, as to these items, the case does not substantially differ from what it would have been if a sum equal to the whole of the original assessment, including the expense of levying it, and adding the interest, had been ordered by the statute of 1881 to be levied upon all the lands within the district, allowing to each owner, who had already paid his share of the original assessment, a credit for the sura so paid by him, with interest from the time of payment. Judgment affirmed. [The dissenting opinion of Matthews, J, (for himself and Har LAN, J.), is omitted.] 654 LENT V. TILLSON. [CHAP. IV. LENT V. TILLSON. SuPKEME Court of the United States. 1890. [140 U. S. 316.] The case, as stated by the court, was as follows : — This suit, which was commenced April 5, 1879, arises out of an Act of the Legislature of California, approved March 23, 1876, entitled "An Act to authorize the widening of*Dupont Street in the Cit\- of San Francisco." An assessment was made to meet the cost incurred in its execution. Provision was made in the Act to issue and sell bonds to meet such cost in the first instance, and for the levy of an annual tax on the lands benefited, in proportion to benefits, to paj' the interest on the bonds, and to create a sinking fund for the payment of the principal debt. Bonds, dated January 1, 1876, to the amount of one million dollars, were issued in the name of the city and county' of San Francisco, and made payable to the holder in gold coin of the United States, twenty years after date, with interest, payable half yearly, at the rate of seven per cent per annum. The bonds recited that they were issued under the above Act, were to be paid out of the fund raised by taxation as therein provided, and were taken by the holder subject to the conditions expressed in its 22d section to be hereafter re- ferred to. Thej' were signed b}' the mayor, auditor, and county- sur- vej'or, and attested by the oflScial seal of the city and county. The plaintiffs in error, who were the plaintiffs below, being owners of lots or parcels of land within the district subject to the assessment, and claim- ing that the statute was unconstitutional and void, brought this suit to obtain a decree perpetuallj' enjoining the defendant in error, tax collec- tor of the city and county of San Francisco, from selling their property under the assessment. Holders of the bonds to a large amount inter- vened and were made defendants. The court of original jurisdiction — the Superior Court of the citj- and county of San Francisco — rendered a decree giving the relief asked. Upon appeal to the Supreme Court of California that decree was reversed and the cause remanded with direc- tions to dissolve the injunction and dismiss the complaint. The statute in question contains many provisions. . . . [Here follows a long statement of these provisions.] Mr. Joseph H. Choate, for plaintiffs in error. Mr. John Garber and Mr. T. B. Bishop also filed a brief for same. Mr. A. H. Garland (with whom were Mr. John Mullan and Mr. H. J. May on the brief) , for defendant in error. Mr. Justice Harlan, after making the above statement, delivered the opinion of the court. The Chief Justice of the Supreme Court of California, under its order, made his certificate to the effect that in this suit and appeal there was drawn in question the validity of the above Act of March 23, 1876, and CHAP. IV.] LENT V. TILLSON. 655 the authority exercised and the proceedings taken under it, on the ground that the statute and said authoritj- and proceedings were repug- nant to tlie Fourteenth Amendment to the Constitution of the United States, and tiiat the decision of that court was in favor of their validity. The provisions of the statute, to which we have referred, sufficiently indicate its scope and effect, and enable us (without referring to others that relate to matters of mere detail) to determine whether or not the Act, upon its face or by its necessai-y operation, is repugnant to that clause of the Constitution declaring that no State shall deprive any person of property without due process of law. We have seen that the statute defined the district benefited by the widening of Dupont Street, and upon which the assessment to meet the cost of the work was to be imposed ; u)ade it a condition precedent to the proposed improvement that it should be declared -by resolution or order of the Board of Supervisors of the citj- and county to be expedient ; directed that, after the passage of such a resolution or order, the Du- pont Street Commissioners should publish, for not less than ten daj's, in two daily papers in San Francisco, a notice informing property owners along the line of the street of its organization, and inviting all persons interested in property sought to be taken, or that would be in- jured by the widening of that street, to present descriptions of their respective lots, and a statement in writing of their interest in them ; allowed the majority in value of owners of property within the district embracing the lands of the plaintiffs, at any time within thirtj' days after the last publication of the above notice, by written protest filed with the Board of Commissioners, to defeat altogether the proposed widening of Dupont Street ; required the board to prepare a written report showing the description and actual cash value of the ^everal lots and subdivisions of land and buildings included in the land proposed to be taken for the widening of the street, the value and damage deter- mined upon for the same respectivelj* and the amount in which, accord- ing to its judgment, each lot had been or would be benefited by reason of the widening of the street, relatively to the benefits accruing to other lots of land within the designated district ; and directed such report, as soon as completed, to be left at the office of the board daily, during ordi- nary business hours, for the free inspection of all persons interested, and notice of the same being open for inspection at such time and place pub- lished bj' the board daily, for twenty days, in two daily newspapers printed and published in the city and county. But this was not all. For anj' person interested, and who felt him- self aggrieved bj' the action or determination of the board, as indicated by its report, was permitted, at anj' time within the above thirtj' days, to apply by petition to the county court of the city and countj-, showing his interest in the proceedings of the Board of Commissioners, and his objections thereto, for an order that would bring before that court the report of the board, together with such pertinent documents or data as were in its custody, and were used in preparing its report. It was made 656 LENT V. TILLSON. [CHAP. IV. the daty of the party filing the petition to seiTe, on the same day, a copy thereof on at least one of the members of the Board of Commis- sioners, who were at libertj- to appear by counsel, or otherwise, and make answer to it. The court was also empowered to hear the petition, and set it down for heai'fng within ten days from its being filed. Pro- vision was made for the taking of testimony upon the hearing, and the court was authorized to use its process to compel the attendance of witnesses and the production of books, papers, or maps in the custody of the board, or otherwise. The discre|iou given to the court, after hearing and considering the application, to allow or to deny the order praj-ed for was, of course, to be exercised judicially, according to the showing made by the petitioners. And that complete justice might be done, the court was invested with power, not simply to approve and confirm the report of the board, but to refer it back with directions to alter or modify the same in the particulars specified by the court. Until such alterations and modifications were made, the court was under no duty to approve or confirm the report ; and until it was ap- proved and confirmed, the board was without authoritj' to proceed at all in the work committed to it bj- the statute. Were not these provisions in substantial conforraitj- with the require- ments of " due process of law" as recognized in the decisions of this court? In Davidson v. New Orleans, 96 U. S. 97, 104, it was said that " whenever, by the laws of a State, or by State authorit3-, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole State or of some more limited portion of the community, and those laws provide for a mode of con- firming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person or such proceeding in regard to the propertj' as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it maj- be to other ob- jections." So in Hagar v. Reclamation District, 111 U. S. 701, 708: " Undoubtedly, where life and liberty are involved, due process requires that there be a regular course of judicial proceedings, which imply that the part}- to be affected shall, have notice and an opportunity to be heard ; so, also, where title or possession of property is involved. But, where the taking of property' is in the enforcement of a tax, the pro- ceeding is necessarilj' less formal, and whether notice to him is at all necessary may depend upon the character of the tax and the manner nn which its amount is determinable. ... As stated bj* Mr. Justice Bradlej' in his concurring opinion in Davidson v. New Orleans, ' in judging what is due process of law, respect must be had to the cause and object of the taking, whether the taxing power, the power of eminent domain or the power of assessment for local improvements, or some of these ; and, if found to be suitable or admissible in the special case, it will be adjudged to be " due process of law ; " but if found to be arbitrary, oppressive, and nnjust, it maj' be declared to be not due CHAP. IV.] LENT V. TILLSON. 657 process of law.* " Of the different kinds of taxes which a State may impose, and of which from their nature no notice can be given, the court, in that case, enumerates poll taxes, licenses (not dependent upon tlie extent of business) and specific taxes on things, persons, or occupations, p. 709. These principles were reaffirmed in Kentucky Railroad Tax Cases. 115 U. S. 321, 331, and in Spencer v. Merchant, 125 U. S. 345, 355, in the latter of which cases it was said that " the legislature, in the exercise of its power of taxation, has the right to direct the whole or part of the expense of a public improvement, such as the laj-ing, grad- ing, or repairing [and, equally, the widening] of a street, to be assessed upon the owners of lands benefited therebj^ ; " and that, " the determi- nation of the territorial district which should be taxed for a local im- provement is within the province of legislative discretion ; " also, that, " if the legislature provides for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land, there is no taking of his prop- erty without due process of law." Tested by these principles, the statute providing for the widening of Dupont Street cannot be held to be repugnant to the constitutional re- quirement of due process of law. The notice by publication to all who owned property liable to be assessed for the cost of that improvement was appropriate to the nature of the case, and was reasonable in respect to the length of time prescribed for the publication. And ample oppor- tunity was given to all persons interested to test in a court of competent jurisdiction the fairness and legality- of any assessment proposed to be made upon their property for the purposes indicated by the statute. That court had power to require such alterations or modifications of the report of the Board of Commissioners as justice demanded. It was not bound to approve any report that did not conform to its judgment as to what was right ; and without such confirmation the board could not proceed in the execution of the work contemplated by the legislature. If we had any doubt of the correctness of these views, we should ac- cept the interpretation which the highest court of the State places upon the statute. When the inquiry is whether a State enactment under which propert3' is proposed to be taken for a public purpose accords full opportunity to the owner, at some stage of the proceedings involv- ing his property, to be heard as to their regularity or validity, we must assume that the inferior courts and tribunals of the State will give effect to such enactment as interpreted by the highest court of that State. The Supreme Court of California, speaking by Mr. Justice Temple, in this case, has said : " We are not considering here a statute which is silent as to the hearing. The provisions in question were undoubtedly inserted in view of the constitutional requirement, and for the purpose of affording that opportunity to be heard, without which the law would be void. To give the statute the construction contended for would not only defeat the evident purpose, but would make the whole proceeding VOL. I. — 42 658 LENT V. TILLSON. [CHAP: IV. farcical. And I must confess, it seems to me, it requires great industrj- in going wrong, in view of all the circumstances, to conclude that such can be the meaning. Inapt words certainly- are found in the seetioi) [§ 8], but it would not have provided so elaborately- for a thorough in- vestigation for grievances if it were not intended that redress should be awarded. The statute has apparentlj' been patched and tinkered after it was first drawn, and incongruous matter injected into the body of it. But it still provides for a full hearing, and that the court maj- alter and modify. And it seems that such action is to be based upon the hearing provided for. The word ' Siscretion ' is used in various meanings, but here, evidentlj-, it was intended to submit the whole matter to the sound judgment of the court to be exercised according to the rules of law." 72 California, 404, 421. It is said that the county court was without power to adjudge the statute to be unconstitutional, and had no discretion, except to confirm the report, or to require it to be altered or modified. We do not per- ceive that this is a material inquiry, so long as the statute is not repug- nant to the Constitution. But we do not admit that the county court was without power to hold it to be unconstitutional and void — if such was its view — and to decline, upon that gronnd alone, to confirm anj' report that the Board of Commissioners might have filed. The judge or judges of that court were obliged, bj- their oath of office, and in fidelity to the supreme law of the land, to refuse to give effect to anj- statute that was repugnant to that law, anything in the statute or the Constitution of the State to the contrary notwithstanding. Upon this subject, as well as in respect to the power of the county court to consider objections of every nature that might be made to the confirmation of an}' report from the Board of County Commissioners, the Supi'eme Court of the State said : " The statute does not expressly authorize the court to pass upon the validit}- of the Act, or whether the Board of Supervisors had passed the necessary resolution, or the notices had been given. But the power to do this is necessarily involved in the power of the court to act at all. It may be that the court could not pass upon these questions upon which its jurisdiction depended, so as to conclude all inquiry even on a collateral attack. It was a constitutional court, in- vested with jurisdiction bj- the constitution of special cases. The par- ties had full notice of the proceeding, and of their right to be heard." Again : " The statute places no limit upon the objections which might be made by those deeming themselves aggrieved by the action or deter- mination of the board as shown in the report. As all their determina- tions which could affect any person were required to appear in the report, thfs would seem to include all possible objections. The determination, for instance, might have been objected tb, because, the Act being invalid or the notices not having been given, the board had no right to proceed to act at all. If this contention were sustained^ the result would have been that the court would not have confirmed the report, and the proceedings would have CHAP. IV.] LENT V. TILLSON. 659 ended without fixing a charge upon the property of plaintiffs. They could have complained that a wrong basis was adopted in estimating damages or benefits ; that the estimated cost was too much, or for any misconduct of the commissioners which could affect them, or that the cost exceeded the estimated benefits, and it does not seem to me that the court would have found any diflSculty in granting relief." 72 Cali- fornia, 404, 422. It is contended, however, that the Act was so administered as to re- sult in depriving the plaintiffs of their property without due process of law. This contention is material only so far as it involves the inquiry as to whether the tribunals charged by the statute with the execution of its provisions acquired jurisdiction to proceed in respect to the lots or lands in question and the owners thereof. Jurisdiction was, of course, essential before the plaintiffs property could have been burdened with this assessment. But errors in the mt;re administration of the statute, not involving jurisdiction of the subject and of the parties, could not justify this court, in its re-examination of the judgment of the State court, upon writ of error, to hold that the State had deprived, or was about to deprive, the plaintiffs of their property- without due process of law. Whether it was expedient to widen Dupont Street, or whether the Board of Supervisors should have so declared, or whether the Board of Commissioners properly apportioned the costs of the work or cor- rectly estimated the benefits accruing to the different owners of prop- ertj- affected by the widening of the street', or whether the board's incidental expenses in executing the statute were too great, or whether a larger amount of bonds were issued than should have been, the ex- cess, if an3', not being so great as to indicate upon the face of the transaction a palpable and gross departure from the requirements of the statute, or whether upon the facts disclosed the report of the com- missioners should have been confirmed, are, none of them, issues pre- senting Federal questions, and the judgment of the State court, upon them, cannot be reviewed here. Upon the issue as to whether the Board of Commissioners and the county court acquired jurisdiction to proceed in the execution of the statute, the evidence is full and satisfactorj'. . . . It is contended that the notices required by the different sections of the Act to be published for a designated number of days were not so published. This contention rests, principally', upon the ground that the notices, on some of the da3-s, appeared in a " Supplement " of some of the newspapers, and not in the body of the paper where reading matter was usually found. There is no force in this objection, and it does not deserve serious consideration. Other objections have been urged by the plaintiffs which we do not deem it necessary to consider. For instance, it is said that the mayor of the city of San Francisco, one of the Board of Commissioners, was himself the owner of a lot on Dupont Street, and, for that reason, was incompetent to act as one of the Board of Street Commissioners ; that 660 CHICAGO, ETC. RAILWAY CO. V. MINNESOTA. [CHAP. IV. some of the alterations and modifications of the report of the commis- sioners made upon the hearing in the county court, of the petitions filed by different parlies were so made under private arrangements between the commissioners and those parties, of which other property owners along Dupont Street had no notice, and by which such owners were in- juriouslj- affected ; that the Board of Commissioners selected experts to " assist " it in estimating tlie damages for property taken and injured by the proposed improvement and the benefits accruing therefrom, and that the report of those experts was accepted by the commissioners, without themselves malting or attempting to make an appraisement of damages or an assessment of benefits under the statute ; and that such appraisement and assessment were not in fact correct, fair, or just, but were fraudulent. In respect to all these and like objections, it is suffi- cient to say that they do not necessarily involve any question of a Fed- eral nature, and, so far as this court is concerned, are concluded by the decision of the Supreme Court of California. We are of opinion, upon the whole case, that the Supreme Court of California correctly held that the plaintiffs had not been, or were not about to be, deprived of their property-, in violation of the Constitution of the United States. , Decree affirmed. Mb. Justice Field. I dissent. CHICAGO, ETC. KAILWAY COMPANY v. MINNESOTA. Sdpreme Court of the United States. 1889. [134 U. S. 418.] I This was a writ of error to review a judgment of the Supreme Court of the State of Minnesota, awarding a writ of mandamus against the Chicago, Milwaukee & St. Paul Railwaj' Companj'. The case arose on proceedings taken by the Railroad and Warehouse Commission of the State of Minnesota, under an Act of the Legislature of that State, approved March 7, 1887, General Laws of 1887, c. 10, entitled " An Act to regulate Common Carriers, and creating the Rail- road and Warehouse Commission of the State of Minnesbta, and defin- ing the Duties of such Commission in Relation to Common Carriers." The Act is set forth in full in the margin [of 134 U. S. Reports at pp. 418-434]. The ninth section of that Act creates a commission to be known as the " Railroad and Warehouse Commission of the State of Minnesota," to consist of three persons to be appointed by the Governor by and with the advice and consent of the Senate. The first section of the Act declares that its provisions shall apply 1 The statement of facts is shortened. — Ed. CHAP. IV.] CHICAGO, ETC. RAILWAY CO. V.. MINNESOTA. 661 to any common carrier " engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water, when both are used under a common control, management or arrangement, for a carriage or shipment from one place or station to another, both being within the State of Minnesota." The second section declares " that all charges made by any common carrier, subject to the provisions of this Act, for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, delivering, storage or handling of such property, shall be equal and reasonable ; and every unequal and unreasonable charge for such service is prohibited and declared to be unlawful." The eighth section provides that everj' common carrier subject to the provisions of the Act shall print and keep for public inspection sched- ules of the charges which it has established for the transportation of property ; that it shall make no change therein except after ten days' public notice, plainly stating the changes proposed to be made, and the time when they will go into effect ; that it shall be unlawful for it to charge or receive any greater or less compensation than that so estab- lished and published, for transporting property ; that it shall file copies of its schedules with the commission, and shall notify such commission of all changes proposed to be made ; that in case the commission shall find at any time that any part of the tariffs of charges so filed and pub- lished is in any respect unequal or unreasonable, it shall have the power, and it is authorized and directed, to compel an3- common car- rier to change the same and adopt such charge as the commission "shall declare to be equal and reasonable," to which end the commis- sion shall, in writing, inform such carrier in what respect such tariff of charges is unequal and unreasonable, and shall recommend what tariff shall be substituted therefor ; that in case the carrier shall neglect for ten daj's after such notice to adopt such tariff of charges as the com- mission recommends, it shall be the duty of the latter to immediately publish such tariff as it has declared to be equal and reasonable, and cause it to be posted at all the regular stations on the line of such car- rier in Minnesota, and it shall be unlawful thereafter for the carrier to charge a higher or lower rate than that so fixed and published by the commission ; and that, if any earner subject to the provisions of the Act shall neglect to publish or file its schedules of charges, or to carry out such recommendation made and published by the commission, it shall be subject to a writ of mandamus " to be issued by any judcre of the Supreme Court or of any of the district courts" of the State, on application of the commission, to compel compliance with the require- ments of section 8 and with the recommendation of the commission, and a failure to comply with the requirements of the mandamus shall be punishable as and for contempt, and the commission may apply also to any such judge for an injunction against the carrier from receiving or transporting property or passengers within the State until it shall 662 CHICAGO, ETC. KAILWAY CO. V. MINNESOTA. [CHAP. IV have complied with the requirements of section 8 and with the recom- mendation of the commission, and for any wilful violation or failure to comply with such requirements or such recommendation of the commis- sion, the court may award such costs, including counsel fees, by wa}' of penalty, on the return of said writs and after due deliberation thereon, as may be just. On the 224 of June, 1887, The Boards-of-Trade Union of Fg,rming- ton, Northflekl, Faribault, and Owatonna, in Minnesota, filed with the commission a petition in writing, complaining that the Chicago, Mil- waukee & St. Paul Railwa}' Company, being a common carrier engaged in the transportation of property whoU}' by railroad, for carriage or shipment from Owatonna, Faribault, Dundas, Northfield, and Farming- ton, to the cities of St. Paul and Minneapolis, all of those places being within the State of Minnesota, made charges for its services in the transportation of milk from said Owatonna, Faribault, Dundas, Northr field, and Farmington to St. Paul and Minneapolis, which were unequal and unreasonable, in that it charged four cents per gallon for the trans- portation of milk from Owatonna to St. Paul and Minneapolis, and three cents per gallon from Faribault, Dundas, Northfield, and Farming- ton to the said cities ; and that such charges were unreasonably' high, and subjected the traffic in milk between said points to unreasonable prejudice and disadvantage. The praj-er of the petition was that such rates be declared unreasonable, and the carrier be compelled to change the same and adopt such rates and charges as the commission should declare to be equal and reasonable. A statement of the complaint thus made was forwarded by the commission, on the 29th of June, 1887, to the railwaj' company, and it was called upon by the commission, on the 6th of Jul}', 1887, to satisfy the complaint or answer it in writing at the office of the com- mission in St. Paul, on the 13lh of July, 1887. . . . [On a hearing and investigation by the commissioners, the rate of two and a half cents a gallon, in ten-gallon cans, was declared by them to-be an equal and reasonable rate for carrying milk from Owatonna and Fari- bault to St. Paul and Minneapolis, and the existing rate of three cents a gallon was pronounced unequal and unreasonable, and the plaintiff in error was directed to change its rates accordingly. The company neglected to obey, and the commission duly posted the new rates along the company's road, and applied to the Supreme Court of the State for a writ of mandamus to compel the company's obedience. An alternative writ was issued. The company answered denying the power of the legislature to delegate to a commission the authority to fix rates for transportation, as was attempted in the Act in question ; alleging that the State, in this Act, was undertaking to deprive it of its property without due process of law ; and that the old rate was reasonable and the new unreasonable, and the establishing of it a taking of property without due process of law. At the hearing, the company was refused leave to take testimony as to the reasonableness of the new CHAP. IV.] CHICAGO, ETC. KAILWAY CO. V. MINNESOTA. 663 rate, and the company by a peremptory writ was ordered to change its rates as required by the commission. Costs were given against tlie company and a reargument was refused. Thereupon the company brought this writ of error.] Mr. John W. Cary, for plaintiff in error. Mr. Moses E. C'lapp and Mr. H. W. Childs, for defendant in error. Mr. W. O. Goudy, for appellant. Mr. Justice Blatchfokd, after stating the case as above reported, delivered the opinion of the court. The opinion of the Supi-eme Court of Minnesota is reported in 38 Minnesota, 281. In it the court in the first place construed the statute on the question as to whether the court itself had jurisdiction to enter- tain the proceeding, and held that it had. Of course, we cannot review this decision. It next proceeded to consider the question as to the nature and ex- tent of the powers granted to the commission by the statute in the matter of fixing the rates of charges. On that subject it said: " It seems to us that, if language means anything, it is perfectly evident that the expressed intention of the legislature is that the rates recommended and published by the commission (assuming that they have proceeded in the manner pointed out by the Act) should be not simply advisory, nor merely prima facie equal and reasonable but final and conclusive as to what are lawful or equal and reasonable charges ; that, in proceed- ings to compel compliance with the rates thus published, the law neither contemplates nor allows anj' issue to be made orinquir}' had as to their equality and reasonableness in fact. Under the provisions of the Act, the rates thus published are the only ones that are lawful, and there- fore, in contemplation of law, the only ones that are equal and reason- able ; and, hence, in proceedings like the present, there is, as said before, no fact to traverse, except the violation of the law in refusing compliance with the recommendations of the commission. Indeed, the language of the Act is so plain on that point that argument can add' nothing to its force." It then proceeded to examine the question of the validity of the Act under the Constitution of Minnesota, as to whether the legislature was authorized to confer upon the commission the powers given to the lat- ter by the statute. It held that, as the legislature had the power itself to regulate charges by railroads, it could delegate to a commis- sion the power of fixing such charges, and could make the judgment or determination of the commission as to what were reasonable charges final and conclusive. . . . [Here follows a history of the plaintiff in error, showing that it succeeded to the franchises of various other railroad companies.] It is contended for the railway company that the State of Minnesota is bound by the contract made by the Territory in the charter granted to the Minneapolis and Cedar Valley Railroad Company ; that a contract existed that the company should have the power of regulating its rates 664 CHICAGO, ETC. RAILWiCY CO. V. MINNESOTA. [CHAP. IV. of toll ; that anj- legislation by the State infringing upon that right impairs the obligation of the contract ; that there was no provision in the charter or in any general statute reserving to the Territory or to the State the right to alter or amend the charter ; and that no subse- quent legislation of the Territory or of the State could deprive the directors of the compan}- of the power to fix its rates of toll, sub- ject only to the general provision of law that such rates should be reasonable. But we are of opinion that the general language of the ninth section of the charter of the Minneapolis and Ced^' Valley Railroad Company cannot be held to constitute an irrepealable contract with that company that it should have the right for all future time to prescribe its rates of toll, free from all control bj' the legislature of the State. . . . There is nothing in the mere grant of power, by section 9 of the charter, to the directors of the company, to make needful rules and regulations touching the rates of toll and the manner of collecting the same, which can be properly interpreted as authorizing us to hold that the State parted with its general authority itself to regulate, at anj- time in the future when it might see fit to do so, the rates of toll to be col- lected b^' the company. In Stone v. Farmers' Loan and Trust Co., 116 U. S. 307, 325, the whole subject is fully considered, the authorities are cited, and the conclusion is arrived at, that the right of a State reasonably to limit the amount of charges by a railroad company for the transportation of persons and property within its jurisdiction cannot be granted away by its legislature unless by words of positive grant or words equivalent in law ; and that a statute which grants to a railroad company the right "from time to time to fix, regulate and receive the tolls and charges by them to be received for transportation," does not deprive the State of its power, within the limits of its general authority, as controlled by the Constitution of the United States, to act upon the reasonableness • of the tolls and charges so fixed and regulated. But, after reaching this conclusion, the court said (p. 331) : " From what has thus been said, it is not to be inferred that this power of limitation or regulation is itself without limit. This power to regulate is not a power to de- stroy, and limitation is not the equivalent of confiscation. Under pre- tence of regulating fares and freights, the State cannot require a railroad corporation to carry persons or property without reward ; neither can it do that which in law amounts to a taking of private property for public use without just compensation, or without due process of law." There being, therefore, no contract or chartered right in the railroad company which can prevent the legislature from regulating in some form the charges of the company for transportation, the question is whether the form adopted in the present case is valid. The construction put upon the statute by the Supreme Court of Minnesota must be accepted by this court, for the purposes of the pres- CHAP. IV.] CHICAGO, ETC. RAILWAY CO. V. MINNESOTA. 665 ent case, as conclusive and not to be re-examined here as to its propriety or accuracy. The Supreme Court authoritatively declares that it is the expressed intention of the Legislature of Minnesota, bj' the statute, that the rates recommended and published hy the commission, if it proceeds in the manner pointed out by the Act, are not simply advisory, nor merely /)n»na/aCTe equal and reasonable, but final and conclusive as to what are equal and reasonable charges ; that the law neither con- templates nor allows anj* issue to be made or inquiry to be had as to their equality or reasonableness in fact ; that, under the statute, the rates published by the commission are the only ones that are lawful, and, therefore, in contemplation of law the only ones that are equal and reasonable ; and that, in a proceeding for a mandamus under the statute, there is no fact to traverse except the violation of law in not complying with the recommendations of the commission. In other words, although the railroad company is forbidden to establish rates that are not equal and reasonable, there is no power in the courts to stay the hands of the commission, if it chooses to establish rates that are unequal and unreasonable. This being the construction of the statute by which we are bound in considering the present case, we are of opinion that, so construed, it conflicts with the Constitution of the United States in the particulars complained of by the railroad company. It deprives the company of its right to a judicial investigation, by due process of law, under the forms and with the machinery provided bj' the wisdom of successive ages for the investigation judicially of the truth of a matter in contro- versy, and substitutes therefor, as an absolute finality, the action of a railroad commission which, in view of the powers conceded to it by the State court, cannot be regarded as clothed with judicial functions or possessing the machinery of a court of justice, i Under section 8 of the statute, which the Supreme Court of Minne- sota says is the only one which relates to the matter of the fixing by the commission of general schedules of rates, and which section, it says, fully and exclusively provides for that subject, and is complete in itself, all that the commission is required to do is, on the filing with it b}' a railroad company of copies of its schedules of charges, to " find " that any part thereof is in any respect unequal or unreasonable, and then it is authorized and directed to compel the company to change the same and adopt such charge as the commission " shall declare to be equal and reasonable," and, to that end, it is required to inform the company in writing in what respect its charges are unequal and un- reasonable. No hearing is provided for, no summons or notice to the company before the commission has found what it is to find and declared what it is to declare, no opportunity provided for the company to introduce witnesses before the commission, in fact, nothing which has the semblance of due process of law ; and although, in the present case, it appears that, prior to the decision of the commission, the com- pany appeared before it by its agent, and the commission investigated the rates charged by the company for transporting milk, yet it does 666 CHICAGO, ETC. RAILWAY CO. V. MINNESOTA, [CHAP. IV. not appear what the character of the investigation was or how the result was arrived at. Bj' the second section of the statute in question, it is provided that all charges made by a common carrier for the transportation of pas- sengers or property shall be equal and reasonable. Under this pro- vision, the carrier has a right to make equal and reasonable charges for such transportation. In the present case, the return alleged that the rate of charge fixed by the commission was not equal or reasonable, and the Supreme Court held that the statute deprived the company of the right to show that judicially. The question of the reasonableness of a rate of charge for transportation by a railroad companj-, involving as it ■does the element of reasonableness both as regards the company and as regards the public, is eminently a question for judicial investigation, requiring due process of law for its determination. If the company is deprived of the power of charging reasonable rates for the use of its property, and such deprivation takes place in the absence of an investi- gation by judicial machinery, it is deprived of the lawful use of its property, and thus, in substance and effect, of the property itself, with- out due process of law and in violation of the Constitution of the United States ; and in so far as it is thus deprived, while other persons are permitted to receive reasonable profits upon their invested capital, the companj- is deprived of the equal protection of the laws. It is provided by section 4 of article 10 of the Constitution of Minne- sota of 1857, that '' lands may be taken for public waj', for the pur- pose of granting to any corporation the franchise of way for public use," and that " all corporations, being common carriers, enjoj-ing the right of way in pursuance to the provisions of this section, shall be bound to carry the mineral, agricultural and other productions and manufactures on equal and reasonable terms." It is thus perceived that the provision of section 2 of the statute in question is one enacted in conformity with the Constitution of Minnesota. The issuing of the peremptory writ of mandamus in this case was, therefore, unlawful, because in violation of the Constitution of the United States ; and it is necessary that the relief administered in favor of the plaintiff in error should be a reversal of the judgment of the Supreme Court awarding that writ, and an instruction for further proceedings by it not inconsistent with the opinion of this court. In view of the opinion delivered by that court, it may be impossible for any further proceedings to be taken other than to dismiss the pro- ceeding for a mandamus, if the court should adhere to its opinion that, under the statute, it cannot investigate judicially the reasonableness of the rates fixed by the commission. Still, the question will be open for review ; and The judgment of this court is, that the judgment of the Supreme Court of Minnesota, entered May 4, 1888, awarding a peremp- tory writ of mandamus in this case, he reversed, and the case he remanded to that court, with an instruction for further proceed- ings not inconsistent with the opinion of this court. CHAP. IV.] CHICAGO, ETC. RAILWAY CO. V. MINNESOTA. 667 Mr. Justice Miller concurnng. I concur with some hesitation in the judgment of the court, but wish to make a few suggestions of the principles which I think should govern, this class of questions in the courts. Not desiring to make a dissent, nor a prolonged argument in favor of any views I may have, I will state them in the form of propositions. 1. In regard to the business of common carriers limited to points within a single State, that State has the legislative power to establish the rates of compensation for such carriage. 2. The power which the legislature has to do this can be exercised through a commission which it may authorize to act in the matter, such as the one appointed by the Legislature of Minnesota bj' the Act now under consideration. 3. Neither the legislature nor such commission acting under the authority of the legislature, can establish arbitrarily and without regard to justice and right a tariff of rates for such transportation, which is so unreasonable as to practically- destroy the value of property of persons engaged in the carrying business on the one hand, nor so exorbitant and extravagant as to be in utter disregard of the rights of the public for the use of such transportation on the other. 4. In either of these classes of cases there is an ultimate remedy by the parties aggrieved, in the courts, for relief against such oppressive legislation, and especially in the courts of the United States, where the tariff of rates established either by the legislature or by the com- mission is such as to deprive a party of his property without due process of law. 5. But until the judiciary has been appealed to, to declare the regula- tions made, whether by the legislature or by the commission, voidable for the reasons mentioned, the tariff of rates so fixed is the law of the land, and must be submitted to both by the carrier and the parties with whom he deals. 6. That the proper, if not the only, mode of judicial relief against the tariff of rates established bj' the legislature or by its commission, is by a bill in chancery asserting its unreasonable character and its conflict with the Constitution of the United States, and asking a decree of court forbidding the corporation from exacting such fare as excessive, or establishing its light to collect the rates as being within the limits of a just compensation for the service rendered. 7. That until this is done it is not competent for each individual having dealings with the carrying corporation, or for the corporation with regard to each individual who demands its services, to raise a contest in the courts over the questions which ought to be settled in this general and conclusive method. 8. But in the present case, where an application is made to the Supreme Court of the State to compel the common carriers, namely, the railroad companies, to perform the services which their duty re- quires them to do for the general public, which is equivalent to estab- 668 CHICAGO, ETC. RAILWAY CO. V. MINNESOTA. [CHAP, IV. lishiug by judicial proceeding the reasonableness of the charges fixed by the commission, I think the court has the same right and duty to inquire into the reasonableness of the tariff of rates established by the commission before granting such relief, that it would have if called upon so to do by a bill in chancery. 9. I do not agree that it was necessary to the validity of the action of the commission that previous notice should have been given to all common carriers interested in the rates to be established, nor to any particular one of them, any more than it would have been necessary, which I think it is not, for the, legislature to have given such notice if it had established such rates b^' legislative enactment. 10. But when the question becomes a judicial one, and the validity and justice of these rates are to be established or rejected by the judg- ment of a court, it is necessary that the railroad corporations interested in the fare to be considered should have notice and have a right to be heard on the question relating to such fare, which I have pointed out as judicial questions. For the refusal of the Supreme Court of Minne- sota to receive evidence on this subject, I think the case ought to be reversed on the ground that this is a denial of due process of law in a proceeding which takes the property of the company, and if this be a just construction of the statute of Minnesota it is for that reason void, i 1 Me. Justice Bkadlet (with whom concurred Mr. Justice Gray iand Me:. Justice Lamar) dissenting. I cannot agree to the decision of the court in this case. It practically overrules Munn V. Illinois, 94 U. S. 1 13, and the several railroad cases that were decided at the same time. The governing principle of those cases was that the regulation and settle- ment of the fares of railroads and other public accommodations is a legislative prerog- ative and not a judicial one. This is a principle which I regard as of great importance. When a railroad company is chartered, it is for the purpose of performing a duty which belongs to the State itself. It is chartered as an agent of the State for fur- nishing public accommodation. The State might build its railroads if it saw fit. It is its duty and its prerogative to provide means of intercommunication between one part of its territory and another. And this duty is devolved upon the legislative depart- ment. If the legislature commissions private parties, whether corporations or indi- viduals, to perform this duty, it is its prerogative to fix the fares and freights which they may charge for their services. When merely a road or a canal is to be con- structed, it is for the legislature to fix the tolls to be paid by those who use it ; when a company is chartered not only to build a road, but to carry on public transportation upon it, it is for the legislature to fix the charges for such transportation. But it is said that all charges should be reasonable, and that none but reasonable charges can be exacted ; and it is urged that w^hat is a reasonable charge is a judicial question. On the contrary, it is pre-eminently a legislative one, involving consider- ations of policy as well as of remuneration ; and is usually determined by the legisla- ture, by fixing a maximum of charges in the charter of the company, or afterwards, if its hands are not tied by contract. If this maximum is not exceeded, the courts cannot interfere. When the rates are not thus determined, they are left to the dis- cretion of the company, subject to the express or implied condition that they shall be reasonable ; express, when so declared by statute ; implied, by the common law, when the statute is silent ; and the common law has effect by virtue of the legislative will. Thus, the legislature either fixes the charges at r^ites which it deems reasonable ; or merely declares that they shall be reasonable ; and it is only in the latter case, CHAP. IV.] CHICAGO, ETC. RAILWAY CO. V. MINNESOTA. 669 where what is reaaonable is left open, that the couits have jurisdiction of the subject. I repeat : When the legislature declares that the charges shall be reasonable, or, which is the same thing, allows the common-law rule to that effect to prevail, and leaves the matter there ; then resort may be had to the courts to inquire judicially whether the charges are reasonable. Then, and not till then, is it a judicial question. But the legislature has the right, and it is its prerogative, if it chooses to exercise it, to declare what is reasonable. This is just where I differ from the majority of the court. They say in effect, if not in terms, that the final tribunal of arbitrament is the judiciary ; I say it is the legislature. I hold that it is a legislative question, not a judicial one, unless the legislature or the law (which is the same thing), has made it judicial, by prescribing the rule that the charges shall be reasonable, and leaving it there. It is always a delicate thing for the courts to make an issue with the legislative department of the government, and they should never do so if it is possible to avoid it. By the decision now made we declare, in effect, Chat the judiciary, and not the legislature, is the final arbiter in the regulation of fares and freights of railroads and the charges of other public accommodations. It is an assumption of authority on the part of the judiciary which, it seems to me, with all due deference to the judgment of my brethren, it has no right to make. The assertion of jurisdiction by this court makes it the duty of every court of general jurisdiction. State or Federal, to entertain complaints against the decisions of the boards of commissioners appointed by the States to regulate their railroads ; for all courts are bound by the Constitution of the United States, the same as we are. Our jurisdiction is merely appellate. The incongruity of this position will appear more distinctly by a reference to the nature of the cases under consideration. The question presented before the commis- sion in each case was one relating simply to the reasonableness of the rates charged by the companies, — a question of more or less. In the one case the company charged three cents per gallon for carrying milk between certain points. The com- mission deemed this to be unreasonable, and reduced the charge to 2J cents. In the other case the company charged $1.25 per car for handling and switching empty cars over its lines within the city of Minneapolis, and $1.50 for loaded cars ; and the com- mission decided that $1.00 per car was a sufficient charge in all cases.i The companies complain that the charges as fixed by the commission are unreasonably low, and that they are deprived of their property without due process of law ; that they are entitled to a trial by a court and jury, and are not barred by the decisions of a legislative commission. The State court held that the legislature had the right to establish such a commission^ and that its determinations are binding and final, and that the courts cannot review them. This court now reverses that decision, and holds the contrary. In my judgment the State court was right, and the establishment of the commission, and its proceedings, were no violation of the constitutional prohibition against depriving persons of their property without due process of law. I think it is perfectly clear, and well settled by the decisions of this court, that the legislature might have fixed the rates in question. If it had done so, it would have done it through the aid of committees appointed to investigate the sul)ject, to acquire information, to cite parties, to get all the facts before them, and finally to decide and report. No one could have said that this wa.s not due process of law. And if the legislature itself could do this, acting by its committees, and proceeding accord-' ing to the usual forms adopted by such bodies, I can see no good reason why it might not delegate the duty to a board of commissioners, charged, as the board in this case was, to regulate and fix the charges so as to be equal and reasonable. Such a board would have at its command all the means of getting at the truth and ascertaining the reasonableness of fares and freights, which a legislative committee has. It might, or it might not, swear witnesses and examine parties. Its duties being of an administrative character, it would have the widest scope for examination and inquiry. All means of knowledge and information would be at its command,— 1 The report does not give the facts relative to this case. — Ed. 670 CHICAGO, ETC. KAILWAT CO. V. MINNESOTA. [cHAP. IV. jast as they would be at the command of the legislature which created it. Such a body, though not a court, is a proper tribunal for the duties imposed upon it. In the case of Davidson v. City of New Orleans, 96 U. S. 97, we decided that the appointment of a board of assessors for assessing damages was not only due process of law, but the proper method for making assessments to distribute the burden of a public work amongst those who are benefited by it. Kb one questions the constitu- tionality or propriety of boards for assessing property for taxation, or for the im- provement of streets, sewers and the like, or of commissions to establish county seats, and for doing many other things appertaining to the administrative management of public affairs. Due process of law does not always require a court. It merely re- quires such tribunals and proceedings as are proper to the subject in hand. In the liailroad Commission Cases, 116 U. S. 307, we held that aboard of commissioners is a proper tribunal for determining the proper rates of fare and freight on the rail- roads of a State. It seems to me, therefore, that the law of Minnesota did not pre- scribe anything that was not in accordance with due process of law in creating such a board, and investing it with the powers in question. It is complained that the decisions of the board are final and without appeal. So are the decisions of the courts in matters within their jurisdiction. There must be a final tribunal somewhere for deciding every question in the world. Injustice may take place in all tribunals. All human institutions are imperfect — courts as well as com- missions and legislatures. Whatever tribunal has jurisdiction, its decisions are final and conclusive unless an appeal is given therefrom. The important question always is, what is the lawful tribunal for the particular case 1 In my judgment, in the pres- ent case, the proper tribunal was the legislature, or the board of commissioners which it created for the purpose. If not in terms, yet in effect, the present cases are treated as if the constitutional prohibition was, that no State shall take private property for public use without just compensation, — and as if it was our duty to judge of the compensation. But there is no such clause in the Constitution of the United States. The Fifth Amendment is prohibitory* upon the Federal government only, and not upon the State governments. In this matter, — just compensation for property taken for public use, — the States make their own regulations, by constitution, or otherwise. They are only required by the Federal Constitution to provide " due process of law." It was alleged in David- son V. Nem Orleans, 96 U. S. 97, that the property assessed was not benefited by the improvement; but we held that that was a matter with which we would not inter, fere ; the question was, whether there was due process of law. p. 106. If a State court renders an unjust judgment, we caunot remedy it. I do not mean to say that the legislature, or its constituted board of commission- ers, or other legislative agency, may not so act as to deprive parties of their property without due process of law. The Constitution contemplates the possibility of such an invasion of rights. But< acting within their jurisdiction (as in these cases they have done), the invasion should be clear and unmistakable to bring the case within that category. Nothing of the kind exists in the cases before us. The legislature, in establishing the commission, did not exceed its power ; and the commission, in acting upon the cases, did not exceed its jurisdiction, and was not chargeable with fraudulent behavior. There was merely a difference of judgment as to amount, between the commission and the companies, without any indication of intent on the part of the former to do injustice. The board may have erred ; but if they did, as the matter was within their rightful jurisdiction, their decision was final and conclusive unless their proceedings could be impeached for fraud. Deprivation of property by mere arbitrary power on the part of the legislature, or fraud on the part of the commission, are the only grounds on which judicial relief may be sought against their action. There was, in truth, no deprivation of property in these cases at all. There was merely a regulation as to the enjoyment of property, made by a strictly competent authority, in a matter entirely within its jurisdiction. It may be that our legislatures are invested with too much power, open, as they are, to influences so dangerous to the interests of individuals, corporations and society. But CHAP. IV.] BUDD V. NEW YOEK. 671 such is the constitution of our republican form of government ; and we are bound to abide by it until it can be corrected in a legitimate way. If our legislatures become too arbitrary in the exercise of their powers, the people always have a remedy in their hands ; they may at any time restrain them by constitutional limitations. But so long as they remain invested with the powers that ordinarily belong to the legislative branch of government, they are entitled to exercise those powers, amongst which, in my judgment, is that of the regulation of railroads and other public means of inter- communication, and the burdens and charges which those who own them are authorized to impose upon the public. I am authorized to say that Mr. Justice Gray and Mr. Justice Lamar agree with me iu this dissenting opinion.' In Budd V. N. Y., 143 U. S. .517 (1892), the Supreme Court of the United States, after reaifirming the doctrine of Munn v. IU., 9i U. S. 113 (for which see that case, tnfra, p. 743), Blatchkokd, J., for the court said : " It is further contended that, under the decision of this court in Chicago, Sfc. Eailivai/ Co. v. Minnesota, 134 U. S. 418, the fixing of elevator charges is a judicial question, as to whether they are reason- able or not ; that the statute must permit and provide for a judicial settlement of the charges ; and that, by the statute under consideration, an arbitrary rate is fixed, and all inquiry is precluded as to whether that rate is reasonable or not. " But this is a misapprehension of the decision of this court in the case referred to. In that case, the Legislature of Minnesota had passed an Act which established a rail- road and warehouse commission, and the Supreme Court of that State had interpreted the Act as providing that the rates of charges for the transportation of property by rail- roads, recommended and published by the commission, should be final and conclusive as to what were equal and reasonable charges, and that there could be no judicial inquiry as to the reasonableness of such rates. A railroad company, in answer to an applica- tion for a mandamus, contended that such rates in regard to it were unreasonable, and, as it was not allowed by the State Court to put in testimony iu support of its answer, on the question of the reasonableness of such rates, this couri held that the statute was in conflict with the Constitution of the United States, as depriving the company of its property without due process of law, and depriving it of the equal protection of the laws. • That was a very different case from one under the statute of New York in question here, for in this instance the rate of charges is fixed directly by the legisla- ture. See Spencer v. Merchant, 125 U. S. 345, 356. What was said in the opinion of the court in 134 U- S. had reference only to the case then before the court, and to charges fixed by a commission appointed under an Act of the Legislature, under a Gon- gtitntion of the State which provided that all corporations, being common carriers, should be bound to carry 'on equal and reasonable terms,' and under a statute which provided that all charges made by a common carrier for the transportation of passengers or property should be ' equal and reasonable.' " What was said iu the opinion in 134 U. S., as to the question of the reasonableness of the rate of charge being one for judicial investigation, had no reference to a case where the rates are prescribed directly by the legislature. Not only was that the case in the statute of Illinois in Munn v. Illinois, but the doctrine was laid down by this court in Wabash, ifc. Railwai/ Co. v. Illinois, 118 U. S. 557, 568, that it was the right of a State to establish limitations upon the power of railroad companies to fix the price at which they would carry passengers and freight, and that the question was of the same character as that involved in fixing the charges to be made by persons en- gaged in the warehousing business. So, too, in Dmv v. Beidelman, 125 U. S. 680, 686, it was said that it was within the power of the legislature to declare what should be a reasonable compensation for the services of persons exercising a public employment, or to fibc a maximum beyond which any charge made would be unreasonable. "But in Dow v. Beidelman, after citing Munn v. Illinois, 94 U. S. 113 [and several 1 Compare Wellman v. Chic. ^c. Ry. Co., 83 Mich. 592 (1890) ; Clyde ei al. v. Richm. ^ D. R. R. Co., 57 Fed. Eep. 436 (1893, C. C. U. S. So. Ca.). 672 STATE V. VANDEESLUIS. [CHAP. IV. other cases], as recognizing the doctrine that the legislature may itself fix a maximum beyond which any charge made would be unreasonable, in respect to services rendered in a public employment, or for the use of property in which the public has an interest, subject to the proviso that such power of limitation or regulation is not without limit, and is not a power to destroy, or a power to compel the doing of the services without reward, or to take private property for public use without just compensation or with- out due process of law, the court said that it had no means, ' if it would under any circumstances have the power,' of determining that the rate fixed by the legislature in that case was unreasonable, and that it did not appear that there had been any such confiscation of property as amounted to a taking of it without due process of law, or that there had been any denial of the equal protection of the laws. " In the cases before us, the records do not show that the charges fixed by the statute are unreasonable, or that property has been taken without due process of law, or that there has been any denial of the equal protection of the laws ; even if under any cir- cumstances we could determine that the maximum rate fixed by the legislature was unreasonable." Compare R. R. Co. v. Maryland, 21 Wall. 456, 471 (Bradley, J.) ; Spencer v. Merchant, ante, at p. 647 ; Bradley, J. (dissenting), in Chicago, ^c. Ry. Co. v. Min- nesota, ante, at p. 660, note ; and Paulsen v. Portland, 149 U. S. 30, 38. Of that [reasonableness], said the court (Waite, C. J.), in Terry v. Anderson, 95 U. S. p. 633 (1877), "the legislature is primarily the judge; and we cannot over- rule the decision of that department of the government, unless a palpable error has been committed." See Pickering Phipps v. Land. Si- N. W. Ry. Co., 66 L. T. Rep. 721. Compare the function of the court in • revising the verdict of a jury : " Not merely must the jury's verdict be conformable to the rules of law, but it must be defensible in point of sense and reason ; it must not be absurd or whimsical. This is obviously a different thing from imposing upon the jury the judge's private standard of what is reasonable ; as, for example, when the question for the jury itself is one of reasonable conduct. In such a case, the judges do not undertake to set aside the verdict because their own opinion of what is reasonable in the conduct on trial differs from the jury's. The question for the court, it will be observed, is not whether the conduct ultimately in question, c. g., that of a party injured in a railroad accident, was reasonable, but whether the jury's conduct is reasonable in holding it to he so ; and the test is whether a reasonable person could, upon the evidence, entertain the jury's opinion. Can the conduct, which the jury are judging, reasonably be thought reasonable ? Is that a permissible view ? " — Tmw and Fact in Jury Trials, 4 Harv. Law Rev. 167, 168. And so further Origin and Scope of Am. Doct. Const, Law, 20-24. In State v. Vandersluis, 42 Minn. 129, 131 (1889), the court (Gilfillan, C. J.) said : " The. only limit to the legislative power in prescribing conditions to the right to practise in a profession is that they shall be reasonable. Whether they are reason- able, — that is, whether the legislature has gone beyond the proper limits of its power, — the courts must judge. By the term ' reasonable ' we do not mean expedient, nor do we mean that the conditions must be such as the court would impose if it were called on to prescribe what should be the conditions. They are to be deemed reasonable where, although perhaps not the wisest and best that might be adopted, they are fit and appropriate to the end in view, to wit, the protection of the public, and are manifestly adopted in good faith for that purpose. If a condition should be clearly arbitrary and capricious ; if no reason with reference to the end in view could be assigned for it ; and, especially, if it appeared that it must have been adopted for some other purpose, — such, for instance, as to favor or benefit some persons or class of persons, — it certainly would not be reasonable, and would be beyond the power of the legislature to impose." It may be doubted that there is any difference between the action of a legislature and that of a legislative commission, as regards the questions involved in such a case as Chic, ^c. Ry. Co. v. Minnesota, when once it is clear that the legislature has really CHAP, IV.] EILENBKCKEK V. PLYMOUTH COQNTY. 673 EILENBECKER v. PLYMOUTH COUNTY. Supreme Court of the United States. 1890. [134 U. S. 31.] The case is stated in the opinion. Mr. William A. McKe^iney, for plaintiffs in error. Mr. J. S. Struble, Mr. S. M. Marsh, and Mr. A. J. Baker, Attorney- General of Iowa, for defendant in error. Mr. Justice Miller delivered the opinion of the court. This is a writ of error to the Supreme Court of the State of Iowa. The judgment which we are called upon to review is one affirming the judgment of the District Court of Plymouth County in that State. This judgment imposed a fine of five hundred dollars and costs on each of the six plaintiffs in error in this case, and imprisonment in the jail of Plymouth County for a period of three months, but they were to be undertaken to confer upon the commission the power in qne.stion. If the legislature can exercise it, it would seem that it may confer on the commission a like authority. Yet, as regards subordinate bodies, there is always the question of construction, as to what authority has, in fact, been conferred on them ; and in passing on this, estab- lished common-law principles are applicable, which, ordinarily, and in the absence of clear legislative intention to the contrary, enable the courts to control their action much more readily than that of the legislature itself. If a commission or a local board acts un- reasonably, the courts may set aside their action as nut authorized by the legislature. Similar action by the legislature itself can be condemned only if it be unconstitutional. In Leader v. Moxon et ul., 2 W. Bl. 924, where paving commissioners, with general powers " to pave, repair, sink, or alter [a certain street] in such manner as the com- missioners shall think fit," proceeded to raise " the footway contiguous to the plaintiff's houses to the height of six feet, but in a regular descent from one end of the street to the other, . . . whereby the doors and windows of the ground-floors of the said houses were totally obstructed," — it was held, that "the commissioners had grossly exceeded their powers, which must have a reasonable construction. Their discretion is not arbi- trary, but must be limited by reason and law. . . . Had Parliament intended to demolish or render useless some houses for the benefit or ornament of tlie rest, it would have given express powers for that purpose and given an equivalent for the loss that individua,ls might have sustained thereby." In Sharp v. Wakefield [1891] Appeal Cases, 173, 179, Lord Chancellor Hals- BiTRT, in speaking of the authority of licensing justices in regard to the sale of intoxicating liquors, said : " An extensive power is confided to the justices in tlieir capacity as justices, to be exercised judicially; and ' discretion ' means, when it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion, Rooke's Case, 5 Kep. 100 a; according to law, and not humor. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself. Wilson v. Bastall, 4 T. R. at p. 757." As to the general question of the legislative power over railroads, see also Ch., B. ^ Q. R. R, Co. V. Iowa, 94 U. S. 155 (1876), and R. R. Com. Cases, 116 TJ. S. 307 (1885). — Ed. VOL. I. — 43 674 EILENBECKER V. PLYMOUTH COUNTY. [cHAP. IV. released from conflnement if the fine imposed was paid within thirty da3's from the date of the judgment. This sentence was pronounced by the court as a punishment for contempt in refusing to obey a writ of injunction issued by that court, enjoining and restraining each of the defendants from selling, or keeping for sale, any intoxicating liquors, including ale, wine and beer, in Plymouth County, and the sentence was imposed upon a hearing by the court, without a jury, and upon evidence iu the form of affidavits. It appears that on the 11th day of June, 1885, separate petitions in equity were filed in the District Court of Plymouth County against each of these plaintiffs in error, praying that they should be enjoined from selling, or keeping for sale, intoxicating liquors, including ale, wine and beer, in that county. On the 6th of July the court ordered the issue of preliminary injunctions as prayed. On the 7th of July the writs were served on each of the defendants in each proceeding by the sherifl" of Plymouth County. On the 2-4th of October complaints were filed, alleging that these plaintiffs in error had violated this injunction by selling intoxicating liquors contrarj' to the law and the terms of the injunction served on them, and asking that they be required to show cause why they should not be punished for contempt of court. A rule was granted accordingly, and the court, having no personal knowledge of the facts charged, ordered that a hearing be had at the next term of the court, upon afladavits ; and on the 8th day of March, 1886, it being at the regular term of said District Court, separate trials were had upon evidence in the form of affidavits, by the court without a jury, upon which the plaintiffs were found guiltj' of a violation of the writs of injunction issued in said cause, and a sentence of fine and imprison- ment, as already stated, entered against them. Each plaintiff obtained from the Supreme Court of the State of Iowa, upon petition, a writ of certiorari, in which it was alleged that the Dis- trict Court of Plymouth County had acted withont jurisdiction and illegallj' in rendering this judgment, and by agreement of counsel, and with the consent of the Supreme Court of Iowa, the cases of the six appellants in this court were submitted together and tried on one tran- script of record. That court affirmed the judgment of the District Court of Plymouth County, and to that judgment of affirmance this writ of error is pi-osecuted. . . . [Four assignments of ei-ror are here stated.] The first three of these assignments of error, as we have stated them, being the first and second and fourth of the assignments as num- bered in the brief of the plaintiffs in error, are disposed of at once bj- the principle often decided by this court, that the first eight articles of the amendments to the Constitution have reference to powers exercised by the government of the United States and not to those of the States. Livingston v. Moore, 7 Pet. 469 ; The Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall. 532; United States v. Gruik- CHAP. IV.J EILENBECKER V. PLYMOUTH COUNTY. 675 shank, 92 U. S. 542 ; Walker v. Sauvinet, 92 U. S. 90 ; Fox v. Ohio, o How. 410 ; Holmes v. Jennison, 14 Pet. 540 ; Presser v. Illinois, 116 D. S. 252. ... This leaves us alone the assignment of error tiiat tiie Supreme Court of Iowa disregarded the provisions of section 1 of Article XIV. of the amendments to the Constitution of the United States, because it upheld the statute of Iowa,* which it is supposed by counsel deprives persons charged with selling intoxicating liquors of the equal protection of the law, abridges their rights and privileges, and denies to them the right of trial by jury, while in all other criminal prosecutions the accused must be presented by indictment, and tlien liave the benefit of trial by a jury of his peers. The first observation to be made on this subject is, that the plaintiflfs in error are seeking to reverse a judgment of the District Court of Plj-mouth County, Iowa, imposing upon them a fine and imprisonment for violating the injunction of that court, which had been regularly issued and served upon them. Of the intentional violation of this injunction by plaintiffs we are not permitted to entertain an}' doubt, and, if we did, the record in the case makes it plain. Neither is it doubted that they had a regular and fair trial, after due notice, and opportunity to defend themselves in open court at a regular term thereof. The contention of these parties is, that thej' were entitled to a trial by jury on the question as to whether they were guilty or not guilty of the contempt charged upon them, and because they did not have this trial by jury they say that thej' were deprived of their liberty' without due process of law within the meaning of the Fourteenth Amendment to the Constitution of the United States. If it has ever been understood that proceedings according to the common law for contempt of court have been subject to the right of trial by jury, we have been unable to find any instance of it. It has ^ Section 1543 of the Code of Iowa, as amended by c. 143 of the Acts of the Twen- tieth General Assembly, is as follows : Sec. 1543. In case of violation of the provisions of either of the three preceding sections or of section fifteen hundred and twenty-five of this chapter, the building or erection of whatever kind, or the ground itself in or upon which such unlawful manu- facture, or sale, or keeping, with intent to sell, use or give away, of any intoxicating liquors, is carried on or continued or exists, and the furniture, fixture, vessels and contents, is hereby declared a nuisance, and shall be abated as liereinafter pro^aded, and whoever shall erect or establish, or continue, or use any building, erection or place for any of the purposes prohibited in said sections, shall be deemed guilty of a nuisance, and may be prosecuted and punished accordingly, and upon conviction, shall pay a fine of not exceeding one thousand dollars and costs of prosecution, and stand committed until the fine and costs are paid ; and the provisions of chapter 47, title 25 of this Code, shall not be applicable to persons committed under this section. Any citizen of the county where such nuisance exists, or is kept or maintained, may maintain an action in equity, to abate and perpetually enjoin the same, and any person violating the terras of any injunction granted in such proceeding shall be punished as for con- tempt, by fine of not less than five hundred nor more than one thousand dollars or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment in the discretion of the court. 676 EILENBECKER V. PLYMOUTH COUNTY. [CHAP. IV, always been one of the attributes — ^one of the powers necessarily incident to a court of justice — that it should have this power of vindi- cating its dignit)-, of enforcing its orders, of protecting itself from insult, without the necessity of calling upon a jury to assist it in the exercise of this power. In the case in this court of Ex parte Terry, 128 U. S. 289, this doc- trine is full}' asserted and enforced ; quoting the language of the court in the case of Anderson v. Dunn, 6 Wheat. 204, 227, where it was said tliat "courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect and decorum in their presence, and submission to their lawful mandates ; " citing also with approbation the language of the Supreme Judicial Court of Massachusetts in Cartwright' s Case, 114 Mass. 230, 238, that "the summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice is inherent in courts of chan- cery and other superior coui'ts, as essential to the execution of their powers and to the maintenance of their authoritj', and is part of the law of the land, within the meaning of Magna Charta and of the twelfth article of our Declaration of Eights." And this court, in Terry's case, held that a summarj' proceeding of the Circuit Court of the United States without a jury, imposing upon Terr}' imprisonment for the term of six months, was a valid exercise of the powers of the court, and tliat the action of the Circuit Court was also without error in refusing to grant him a writ of habeas corpus. The case of Terry came into this court upon application for a writ of habeas corpus, and presented, as the case now before us does, the question of the authority of the Circuit Court to impose this imprison- ment on a summary hearing without those regular proceedings which include a trial b.yjury — which was affirmed. The still more recent cases of Ex parte Savin, 131 U. S. 267, and Ex parte Guddy, 131 U. S. 280, assert verj' strongly the same principle. In Ex parte Bohinson, 19 Wall. 505, 510, this court speaks in the following language : " The power to punish for contempts is inherent in all courts. Its existence is essential to tlie preservation of order in judicial proceed- ings, and the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over anj- subject, they' became possessed of 1 this power. But the power has been limited and defined bj- the Act of Congress of March 2d, 1831. 4 Stat. 487." The statute, now embodied in § 725 of the Revised Statutes, reads as follows : " The power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court shall not be construed to extend to any cases except the misbe- havior of anj' person or persons in the presence of the said courts or so near thereto as to obstruct the administration of justice, the mis- CHAP. IV.] EILENBECKER *. PLYMOUTH COUNTY. 677 behavior of any of the oflScers of the said courts in their ofHcial transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons to any lawful writ, process, order, rule, decree, or command of the said courts." It will thus be seen that even in the Act of Congress, intended to limit the power of the courts to punish for contempts of its authority bj' summary proceedings, there is expressly left the power to punish in this summary manner the disobedience of any party, to any lawful writ, process, order, rule, decree or command of said court. This statute was only designed for the government of the courts of the United States, and the opinions of this court in the cases we have already referred to show conclusively what was the nature and extent of the power inherent in the courts of the States by virtue of their organization, and that the punishments which the3' were authorized to inflict for a disobedience to their writs and orders were ample and sum- mary, and did not require the interposition of a jury to find the facts or assess the punishment. This, then, is due process of law in regard to contempts of courts ; was due process of law at the time the Four- teenth Amendment of the Federal Constitution was adopted ; and nothing has ever changed it except such statutes as Congress may have enacted for the courts of the United States, and as each State may have enacted for the government of its own courts. So far from any statute on this subject limiting the power of the courts of Iowa, the Act of the Legislature of that State, authorizing the injunction which these parties are charged with violating, expressly declares that for violating such injunction a person doing so shall be punished for the contempt by a fine of not less than five hundred or more than a thousand dollars, or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment, in the discretion of the court. I So that the proceeding by which the fine and imprisonment imposed upon these parties for contempt in violating the injunction of the court, regularly issued in a suit to which they were parties, is due process of law, and always has been due process of law, and is the process or proceeding by which courts have from time im- memorial enforced the execution of their orders and decrees, and cannot be said to deprive the parties of their liberty or property without due process of law. The counsel for plaintiffs in error seek to evade the force of this reasoning by the proposition that the entire statute under which this injunction was issued is in the nature of a criminal proceeding, and that the contempt of court of which these parties have been found guilty is a crime for the punishment of which they have a right to trial by jury. We cannot accede to this view of the subject. Whether an attach- ment for a contempt of court, and the judgment of the court punishing the party for such contempt, is in itself essentially a criminal proceed- \ 678 EILENBECKEE V. PLYMOUTH COUNTY. [CHAP. IV. ing or not, we do not find it necessary to decide. We simply hold that, whatever its nature may be, it is an oflfence against the court and against the administration of justice, for which courts have always had the right to punish the party by summary proceeding and without trial by jury ; and that in that sense it is due process of law within the meaning of the Fourteenth Amendment of the Constitution. We do not suppose that that provision of the Constitution was ever intended to interfere with or abolish the powers of the courts in proceedings for contempt, whether this contempt occurred in the course of a criminal proceeding or of a civil suit. We might rest the case here ; but the plaintiffs in error fall back upon the proposition that the statute of the Iowa Legislature concern- ing the sale of liquors, under which this injunction was issufed, is itself void, as depriving the parties of their propertj- and of their libertj' without due process of law. We are not prepared to say that this question arises in the present case. The principal suit in which the injunction was issued, for the contempt of which these parties have been sentenced to imprisonment and to pay a fine, has never been tried so far as this record shows. We do not know whether the parties demanded a trial bj' jury on the question of their guilty violation of that statute. We do not know that they would have been refused a trial by jury if they had demanded it. Until the trial of that case has been had they are not injured by a refusal to grant them a jurj- trial. It is the well-settled doctrine of this court that a part of a statute may be void and the remainder may be valid. That part of this statute which declares that no person shall own or keep, or be in anj- waj- con- cerned, engaged or employed in owning or keeping any intoxicating liquors with intent to sell the same within this State, and all the pro- hibitory clauses of the statute, have been held by this court to be within the constitutional powers of the Stafe Legislature, in the cases of Mugler v. Kansas, 123 U. S. 623, and PoweU v. Pennsylvania, 127 U. S. 678. If the objection to the statute is that it authorizes a proceeding in the nature of a suit in equity to suppress the manufacture and sale of intoxicating liquors which are bj"^ law prohibited, and to abate the nuisance which the statute declares such acts to be, wherever carried on, we respond that, so far as at present advised, it appears to us that all the powers of a court, whether at common law or in chancery, may be called into operation by a legislative body for the purpose of sup- pressing this objectionable traffic ; and we know of no hindrance in the Constitution of the United States to the form of proceedings, or to the court in which this remedy shall be had. Certainly it seems to us to be quite as wise to use the processes of the law and the powers of the court to prevent the evil, as to punish the offence as a crime after it has been committed. We think it was within the power of the court of Plymouth County to issue the writs of injunction in these cases, and that the disobedience CHAP. IV.] CAKLETON V. EUGG. 679 to them by the plaintiffs in error subjected them to the proceedings for contempt which were had before that court. The judgment of the Supreme Court of Iowa is Afflrmed. In Carleton v. Bugg^ 149 Mass. 550 (1889), on a petition in equity, for the abatement of a nuisance, and an injunction restraining the con- tinuance of it, the court (Knowlton, J.) said: "The St. of 1887, c. 380, § 1, is as follows: 'The Supreme Judicial Court and Superior Court shall have jurisdiction in equity upon information filed by the district attorney for the district, or upon the petition of not less than ten legal voters of any town or city, setting forth the fact that any building, place, or tenement therein is resorted to for prostitution, lewdness, or illegal gaming, or is used for the illegal keeping or sale of intoxicating liquors, to restrain, enjoin, or abate the same as a common nuisance, and an injunction for such purpose may be issued by any justice of either of said courts.' " The first question reported for our decision is, whether this statute is constitutional. The respondents contend that it is in conflict with Article XII. of the Declaration of Eights, which provides that ' no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, . . . but by the judgment of his peers, or the law of the land.' . . . " We do not understand the respondents to contend that the provi- sions of the Pub. Sts., c. 100, which regulate the sale of intoxicating liquors, or those of the Pub. Sts., c. 101, § 6, which declare that ' all buildings, places, or tenements . . . used for the illegal keeping or sale of intoxicating liquor shall be deemed common nuisances,' are unconstitutional. But the argument is, that, by a process in equity for the abatement of an alleged common nuisance of the kind named in this statute, they are liable to be deprived of their property, immu- nities, and privileges otherwise than by the judgment of their peers or the law of the land. " The fallacy of the argument lies in part in disregarding the distinc- tion between a proceeding to abate a nuisance, which looks only to the property that in the use made of it constitutes the nuisance, and a pro- ceeding to punish an offender for the crime of maintaining a nuisance. These two proceedings are entirely unlike. The latter is conducted under the provisions of the criminal law, and deals only with the person . who has violated the law. The former is governed by the rules which relate to property, and its only connection with persons is through property in which they may be interested. That which is declared by a valid statute to be a nuisance, is deemed in law to be a nuisance in fact, and should be dealt with as such. The people, speaking through their representatives, have proclaimed it to be offen- sive and injurious to the public, and the law will not tolerate it. The fact that keeping a nuisance is a crime, does not deprive a court of 680 CAKLETON V. EUGG. [CHAP, IV. equity of the power to abate the nuisance. Attorney- General \. Hunter, 1 Dev. Eq. 12. People v. St. Louis, 5 Gilman, 351. Hwell V. Greenwood, 26 Iowa, 377. Minke v. Sopeman, 87 111. 450. . . . " It should be borne in mind, tliat this is not a statute which professes to look to the conduct of persons to prevent the commission of crime. If it were, it would have no legitimate place in our jurisprudence. There is no doubt that in hearings upon applications for preliminary injunctions and ovA&rs pendente, lite in suits in equity, and in proceed- ings for the punishment of contempt of court, the parties have no constitutional right to a trial by jury. It wtuld be an anomalous pro- ceeding for a court to enjoin a defendant from committing the crime of larceny, or of selling intoxicating liquors, with a view to punish as disobedience of the injunction and contempt of court the samp act which was before punishable as a crime. If that could be done, an accused person through a mere change of form in the proceedings might be punished for a crime without a trial by jury, and in violation of both the Federal and State constitutions. There would be- strong ground for contending that a statute which should attempt to authorize such a method of preventing or punishing ordinary crimes would be unconstitutional. Indeed, even where a plaintiff seeks the aid of a court of equity to protect him from irreparable injury through the threatened publication of a libel, or the commission of some other like crime, the courts decline to interfere. Brandreth v. Lance, 8 Paige, 24 ; Fleming v. Newton, 1 H. L. Cas. 363, 376 ; Boston Diatite Co. V. Florence Manuf. Co., 114 Mass. 69." . . . Injunction to issue J*- 1 And so State v. Saunders, 25 Atl. Eep. 588 (N. H. December, 1889). In Car,kton v. Rugg, Field, J., gave a dissenting opinion in the course of which he said ; " The phrase ' due process of law,' contained in the Fourteenth Amendment of the Constitution of the United States, has not been construed to mean that parties shall be entitled to a jury trial in civil suits at common law, or that a person shall be tried for a felony or a capital crime only on presentment of a grand jury, and it is doubtful, even, if it would be held that the amendment secures a trial by jury in criminal cases. The clause of that amendment we are considering is a restraint on all the States of the United States, and the Supreme Court of the United States has taken notice that there are considerable diversities in the jurisprudence of the different States. . . . Apparently any mode of procedure duly established by a State, which provides for an impartial trial, and does not violate the fundamental principles of general juris- prudence, would be due process of law within the meaning of that amendment. A different construction has been given by this court to the phrase 'the law of the land,' contained in Article XII. of our Declaration of Rights, and Kansas v. Ziebold is not an authority upon the meaning of our Constitution. See Hurtado v. People, 110 U. S. 516; Jones v. Rohbins, and other Massachusetts cases cited uhi supra. It will hardly be contended that intoxicating liquors can be destroyed in this Common- wealth because they are kept for sale in violation of law, unless this fact has been found by a jury. Fisher v. McGirr, 1 Gray, 1 ; Brown v. Perkins, 12 Gray, 89. See E!;/ V. Supervisors, 36 N. Y. 297 ; Grai/ v. Ayres, 7 Dana, 375 ; Welch v. Stowell, 2 Doug. (Mich.) 332 ; Rex v. Pappineau, Strange, 686. . . . "The Massachusetts Statute of 1887, c. 380, was not passed for the abatement of a nuisance by destroying or changing the character or condition of tangible property, or by removing obstructions to the exercise of a public right. Its purpose was, I CHAP. IV.] IN EE CONVERSE. 681 In In re Converse, 137 U. S. 624 (1890), in affirming a judgment of a circuit court which denied a petition for the writ of habeas corpus on the part of a lawyer who had been sentenced in a State court for embezzlement on his own confession, Chief Justice Fuller, after stating the case, delivered the opinion of the court as follows : " The Supreme Court of Michigan held that the information charged the re- spondent with the crime of embezzlement ; that the defendant was think, to prevent the illegal sale of intoxicating liquors by punishing by fine or im- prisonment, or by both, without limit, in the discretion of the court, any person who sells or keeps such liquors for sale after he has been enjoined by the court. The pre- vention of crime by the punishment of persons found guilty of an offence against a general law is the end aimed at. The keeping or selling of intoxicating liquors with- out a license was a well-known offence when our Constitution was adopted, and the procedure for punishing it, or for forfeiting the liquors, was also well known. Articles XII. and XV. were inserted in the Declaration of Kights as a protection to every individual in his life, liberty, and property. If a statute had given jurisdiction in equity to hear without a jury an information like this, and had authorized the court, on finding the respondent guilty, to punish him in its discretion, without limit, by fine, or imprisonment, or both, in what substantial respect would such a statute differ from this ? The legislature cannot do indirectly what it cannot do directly ; it cannot change the nature of things by affixing to them new names. If the legislature, by statute, can authorize a court in a public prosecution to enjoin any person from illegally keeping or selling intoxicating liquors Tu any specified place within the Commonwealth, why cannot it authorize a court to^^join any person from illegally keeping or selling intoxicating liquors anywhere within the Commonwealth ? and, if this can be done, why can it not authorize a court at the suit of the Commou'^vealth to enjoin any person from doing any illegal or criminal act anywhere within the Commonwealth, and to try without a jury any person so enjoined, on a charge of having violated the injunction, and to punish him by fine and imprisonment, without limit, if the court find him guilty ? " Except for constitutional limitations, the legislature could deal with all crimes by way of injunctions in equity. Indeed, if this jurisdiction were confined to crimes having some direct relation to a particular building, place, or tenement, the number of such crimes is large, and all crimes have some relation to place, as they must be committed somewhere. The harboring or concealing of criminals ; the receiving or concealing of stolen or embezzled property; the making or keeping of instruments intended for criminal use ; the violation of the provisions of criminal statutes regu- lating trade ; burglary, arson, and other similar offences, — have a direct relation to a particular building, place, or tenement, and the building, place, or tenement in which these offences are committed may be said to be used for the purpose. In the prosecution of crimes by way of injunctions in equity, the existing Statute of Limita- tions would not be a defence, and the whole course of criminal procedure would be changed. It was not the intention of the Constitution that persons should be pun- ished for violating general laws by proceedings in equity, or by a court acting witliout a jury, and subject to no limitations upon its power to fine and imprison except its own discretion. The safeguards of the common law were carefully secured by the Declaration of Rights, both in public prosecutions and in private suits, 'except in cases in which it has heretofore been otherways used and practised.' This is not such a case, and the only thing novel about it is the procedure. Statutes against ille- gally selling or keeping for sale intoxicating liquors, from the earliest times, have been enforced by criminal complaints or indictments, or by penal actions. Such statutes were never enforced in equity anywhere when the Constitution was adopted. I think that the statute under which the present proceedings were brought is incon- sistent with Article XII. of the Declaration of Rights. "Me. Justice ©evens and Ms. eTDSTicB William Allen concur in this dissent." 682 IN EE CONVERSE. [[CHAP. IV. called upon to plead to this charge when arraigned ; that he pleaded guilty of embezzlement, and undoubtedl3- understood when he made his plea that he was pleading guilty to the felony charged ; that this con- clusion was fortified by the private examination required b^' statute to be made by the judge before sentencing upon a plea of guiltj', which was shown to have been had in this case ; that the fact that the respon- dent collected the money as an attorney was immaterial ; that if the act contained all the elements of embezzlement, he was guilty of the crime and was properly convicted ; that an attorney when he collects money for his client acts as the agent of his clienf as well as his attornej', and if, after making the collection, he appropriates the money to his own use with the intention of depriving the owner of the same, he is guilty of the crime of embezzlement ; that the conviction was warranted by the plea ; and that the judgment should therefore be affirmed. As re- marked by Judge Brown, it is no defence to an indictment under one statute that a defendant might also be punished under another. And as the highest judicial tribunal of the State of Michigan ruled that the word ' agent' in section 9151 of the statutes of that State applied to attor- neys-at-law, and as the information charged the defendant with embez- zlement under that section, and he pleaded guilty to embezzlement as an attorney-at-law, the affirmance of the conviction necessarily followed. In the view of the statute taken by the court, the plea admitted the truth of the charge. " It is not our province to inquire whether the conclusion reached and announced by the Supreme Court was or was not correct, for we are not passing upon its judgment as a court of error, nor can we consider the contention that the decision was not in harmony with the State Consti- tution and laws. " The single question is whether appellant is held in custody in viola- tion of the Fourteenth Amendment to the Constitution of the United States, in that the State thereby deprives him of libertj' without due process of law ; for there is no pretence of an abridgment of his privi- leges and immunities as a citizen of the United States, nor of a denial of the equal protection of the laws. But the State cannot be deemed guilty of a violation of its obligations under the Constitution of the United States because of a decision, even if erroneous, of its highest court, while acting within its jurisdiction. And, conceding that an unconstitutional conviction and punishment under a valid law would be as violative of a person's constitutional rights as a convtction and pun- ishment under an unconstitutional law, we fail to perceive that this con- viction and judgment are repugnant to the constitutional provision. Appellant has been subjected, as all persons within the State of Michi- gan are, to the law in its regular course of administration through courts of justice, and it is impossible to hold that a judgment so arrived at is such an unrestrained and arbitrary exercise of power as to be utterly void. "We repeat, as has been so often said before, that the Fourteenth CHAP. IV.J MOKLEY V. LAKE SHORE, ETC. EY. CO. 683 Amendment undoubtedly forbids any arbitrary deprivation of life, lib- erty, or property, and in the administration of criminal justice requires that no different or higher punishment shall be imposed on one than is imposed on all for like offences, but it was not designed to interfere with the power of the State to protect the lives, liberty, and property of its citizens ; nor with the exercise of that power in the adjudications of the courts of a State in administering the process provided by the law of the State. The Supreme Court of Michigan did not exceed its jurisdiction or deliver a judgment abridging appellant's privileges or immunities or depriving him of the law of the land of his domicil. Arrowsmith v. Harmoning, 118 U. S. 194 ; Baldwin v. Kansas, 129 U. S. 52 ; In re Kemmler, 136 U. S. 436." Judgment affirmed. In Caldwell v. Texas, 137 U. S. 692 (1890), in dismissing a case brought upon error to the Court of Appeals of Texas, Chief Justice Fuller, for the court, said, "By the Fourteenth Amendment the powers of the States in dealing with crime within their borders are not limited, but no State can deprive particular persons or classes of per- sons of equal and impartial justice under the law. Law, in its regular course of administration through courts of justice, is due process, and when secured by the law of the State, the constitutional requisition is satisfied. 2 Kent Comm. 13. And due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice. Bank of Columbia v. Okely, 4 Wheat. 235, 244. The power of the State must be exerted within the limits of those principles, and its exertion cannot be sustained when special, partial, and arbitrary. Hurtado v. California, 110 U.S. 516, 535. No question of repugnancy to the Federal Constitution can be fairly said to arise when the inquiry of the State courts is directed to the sufficiency of an indictment in the ordinary administration of criminal law, and the statutes authorizing the form of indictment pur- sued are not obviously violative of the fundamental principles above adverted to." In Morley v. Lalce Shore &c. By. Co., 146 U. S. 162 (1892), on error to the Court of Appeals of New York, where the validity of a State enactment reducing the rate of interest on judgments was in question, as applied to a judgment obtained before its passage, Mb. Justice Shibas, for the court, said : " The further contention of the plaintiff irl error, that he has been deprived of his property without due process of law, can be more readily disposed of. If, as we have seen, the plaintiff has actually received on account of his judgment all that he is entitled to receive, he cannot be said to have been deprived of his property ; and whether or not a statutory change in the rate of interest thereafter to accrue on the judgment can be regarded as a deprivation of property, the adjudication of the plaintiff's claims by the courts of 684 CHARLOTTE, ETC. KAILROAD CO. V. GIBBES. [CHAP. IV. his own State must be admitted to be due process of law. Nor are we authorized by the Judiciary Act to review this judgment of the State court, because this judgment refuses to give effect to a valid contract or because such judgment in its effect impairs the obligation of a con- tract. If we did, every case decided in the State courts could be brought here, when the party setting up a contract alleged that the court took a different view of its obligation from that which he held. Knox v. Ex. change Bank, 12 Wall. 379, 383." i In Charlotte, die. Bailroad Co. v. Oilbbes, 142 U. S. 386 (1892), Mr. Justice Field, after stating the case, delivered the opinion of the court. Notwithstanding the several objections taken in the complaint to the assessment and tax upon the railroad companies to meet the expenses and salaries of the railroad commissioners, the argument of counsel on the hearing was confined to the supposed conflict of the laws authoriz- ing the tax with the inhibition of the Fourteenth Amendment of the Constitution of the United States. All other objections were deemed to be disposed of by the decision of the Supreme Court of the State, that the laws complained of are not in conflict with its Constitution. The property of railroad companies in South Carolina is subjected by the general law to the same tax as similar propertj- of individuals, in proportion to its value, and like conditions of uniformity and equality in its assessment are imposed. The further tax laid upon them to. meet the expenses and salaries of the railroad commissioners is not in proportion to the value of their property, but according to their gross ^income, proportioned to the number of miles of their roads in the State. This tax. is stated to be bej-ond any which is levied upon other corpora- tions to meet an expenditure for State officers, and, therefore, it is contended, constitutes an unlawful discrimination against railroad cor- porations, imposing an unequal burden upon them, in conflict with the constitutional amendment which ordains that no State shall deny to any person the equal protection of the laws. Private corporations are per- sons within the meaning of the amendment ; it has been so held in sev- eral cases by this court. Santa Clara County v. Southern Pacific Bailroad Co., 118 U. S. 394 ; Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 189 ; Jliinneapolis & St Louis Bailroad Co. v. Beck- with, 129 U. S. 26. If the tax were levied to pay for services in no waj' connected with the railroads, as, for instance, to pay the salary of the executive or judi- cial ofBcers of the State, whilst railroad corporations were at the same time subjected to taxation upon their property equally with other cor- porations for such expenses, and other corporations were not taxed for the salaries mentioned, there would be just ground of complaint of un- 1 See also In re Kefnmler, 136 U, S. 436, 448 ; York v. Texas, 137 U. S. 15 ; In re Manning, 139 U. S. 504. — £d. CHAP. IV.] CHAELOTTE, ETC. RAILROAD CO. V. GIBBES. 685 lawful discrimination against the railroad corporations, and of their not receiving the equal protection of the laws. But there is nothing of this nature in the tax in question. The railroad commissioners are charged with a variety of duties in connection with railroads, the performance of which is of great importance in the regulation of those instruments of transportation. . . . It is evident, from these and many other provisions that might be stated, that the duties of the railroad commissioners, when properly discharged, must be in the highest degree beneficial to the public, secur- ing faithful service on the part of the railroad companies, and safety, convenience, and comfort in the operation of their roads. That the > State has the power to prescribe the regulations mentioned there can be no question. Tliough railroad corporations are private corporations as distinguished from those created for municipal and governmental purposes, their uses are public. They are formed for the convenience of the public in the transportation of persons and merchandise, and are invested for that purpose with special privileges. Thej' are allowed to exercise the State's right of eminent domain that they may appropriate for their uses the necessary property of others upon paying just com- pensation therefor, a right which can only be exercised for public pur- poses. And they assume, by the acceptance of their charters, the obligations to transport all persons and merchandise upon like condi- tions and at reasonable rates ; and they are authorized to charge rea- sonable compensation for the services they thus perform. Being the recipients of special privileges from the State, to be exercised in the interest of the public, and assuming the obligations thus mentioned, their > business is deemed affected with a public use, and to the extent of that use is subject to legislative regulation. Georgia Railroad <& Banking Co. V. Smith, 128 U. S. 174, 179. That regulation may extend to all measures deemed essential not merely to secure the safety of passengers and freight, but to promote the convenience of the public in the trans- action of business with them, and to prevent abuses by extortionate charges and unjust discrimination. It may embrace a general super- vision of the operation of their roads, which may be exercised hy direct legislation commanding or forbidding, under severe penalties, the doing or omission of particular acts, or it may be exercised through commis- sioners specially appointed for that purpose. The mode or manner of regulation is a matter of legislative discretion. When exercised through commissioners, their services are for the benefit of the railroad corpora- tions as well as of the public. Both are served by the required super- vision over the roads and means of transportation, and there would seem to be no sound reason why the compensation of the commissioners in such case should not be met bj- the corporations, the operation of whose roads and the exercise of whose franchises are supervised. In exacting this there is no encroachment upon the Fourteenth Amend- v ment. Requiring that the burden of a service deemed essential to the public, in consequence of the existence of the corporations and the ex- 686 CHARLOTTE, ETC. RAILROAD CO. V. GIBBES. [CHAP. IV. ercise of privileges obtained at their request, should be borne bj' the corporations in relation to whom the service is rendered, and to whom it is useful, is neither denying to the corporations the equal protection of the laws or making any unjust discrimination against them. All - railroad corporations in the State are treated alike in this respect. The necessity of supervision extends to them all, and for that supervision the like proportional charge is made against all. There is no occasion for similar regulations for the government of. other than railroad corpo- rations, and therefore no charge is made against them for the expenses and salaries of the commissioners. The fule of equality is not invaded where all corporations of the same kind are subjected to like charges for similar services, though no charge at all is made against other cor- porations. There is no charge where there is no service rendered. The legislative and constitutional provision of the State, that taxation of property shall be equal and uniform and in proportion to its value, is not violated by exacting a contribution according to their gross income in proportion to the number of miles of railroad operated in the State to meet the special service required. Barbier v. Connolly, 113 U. S. 27 ; Soon Hing v. Crowley, 113 U. S. 703 ; Missouri Pacific Railway, V. Humes, 115 U. S. 512. There are many instances where parties are compelled to perform certain acts and to bear certain expenses when the public is interested in the acts which are performed as much as the parties themselves. Thus in opening, widening, or improving streets the owners of adjoin- ing property are often compelled to bear the expenses, or at least a por- tion of them, notwithstanding the work done is chiefly for the benefit of the public. So, also, in the draining of marsh lands, the public is di- rectly interested in removing the causes of malaria, and 3'et the expense of such labor is usually thrown upon the owners of the property. Quar- antine regulations are adopted for the protection of the public against the spread of disease, yet the requirement that the vessel examined shall paj' for the examination is a part of all quarantine systems. Mor- gan v. Louisiana, 118 U. S. 455, 466. So, the expense of a compul- sory examination of a railroad engineer, to ascertain whether he is free from color blindness, has been held to be properlj' chargeable against the railroad company. Nashville, Chattanooga & St. Louis Railway V. Alabama, 128 U. S. 96, 101. So, where work is done in a particu- lar county for the benefit of the public, the cost is oftentimes cast upon the county itself instead of upon the whole State. Thus, in County of Mobile V. Kimball, 102 U. S. 691, it was held that a provision for the issuing of bonds bj' a county in Alabama could not be declared in\alid, although it imposed upon one county the expense of an improvement in which the whole State was interested. In such instances, where the interests of the public and of individuals are blended in any work or service imposed bj- law, whether the cost shall be thrown entirely upon the individiials, or upon the State, or be apportioned between them, is matter of legislative direction. CHAP. IV.] NEW YOEK, ETC. RAILROAD CO. V. BRISTOL ET AL. 687 We see no error in the ruling of the court below upon the Federal question presented, and the conclusion we have reached renders it un- necessary to consider how far the obligation of the corporation was affected by the alleged amendment made to its charter. Judgment affirmed. Justices Bradley and Gray did not sit in this case nor take part in its decision. NEW YORK, ETC., RAILROAD COMPANY v. BRISTOL et al. Supreme Court of the United States. 1894. [14 Sup. Court Rep. 437.] i In error to the Supreme Court of Errors of the State of Connecticut. In pursuance of an Act of the Legislature of Connecticut approved June 19, 1889, relating to the grade crossings of railroads, the railroad commissioners of that State, on September 2, 1890, made an order reciting that whereas the directors of the New York & New England railroad company had failed to remove, or apply for the removal, dur- ing the year ending August 1, 1890, of any grade crossing of a highway which crossed or was crossed by their railroad, and whereas, in their opinion, said directors should have applied for the removal of the grade crossing of their road and the highway known as " Main Street," in the town of Bristol, and directing a hearing upon the matter, with notice to the railroad company, the town, and the owners of land adjoining that portion of the highway. The hearing was had on several days, from September 24, 1890, to February 11, 1891 ; and the commissioners, being of opinion that the financial condition of the company warranted the order, and that public safety required it, ordered the crossing re- moved, and determined and directed the alterations, changes, and removals to be made and done, and that they be executed by the rail- road company at its sole expense, including damages occasioned there- ' by. The companj' appealed from this order to the Superior Court of the County of Hartford, the petition for appeal setting forth various grounds therefor. That court, upon hearing the parties and their evi- dence, found as facts that the railroad company was financiall}' able to execute the commissioners' order, and that the safety of the public re- quired the removal of the grade crossing ; and affirmed the order. The company appealed to the Supreme Court of Errors of Connecticut, which decided that there was no error in the judgment appealed from (62 Conn. 527, 26 Atl. 122) ; and thereupon a writ of error was allowed to this court, and errors assigned, as follows : — " (1) The said court erred in holding that the statute under which * The statement of facts is shortened. This case will appear in 151 U. S. 556. — Ed. 688 NEW YOIIK, ETC. EAILROAD CO. V. BRISTOL ET AL. [OHAP. IT. were bad the proceedings as set forth in the order of the railroad com- missioners exemplified in the record of the case justified said order, and in affirming the judgment of the Superior Court in and for Hartford Count}-, affirming said order, and in overruling plaintiff's claim that said statute was void as violating the Constitution of the United States, in . that it impaired the obligation of the contracts made bj- said company with the holders of its bonds and preferred stock, by making it impos- sible for said companj' to paj' the interest on its bonds and dividends on its preferred stock, as agreed between them and said company, and yet maintain and operate its railroad effici^tly ; and, further, in that it took the propertj" of the company without due process of law, and ' denied to it the equal protection of the law. " (2) The said court erred in overruling the claim of the plaintiff in error in the twelfth paragraph of its petition of appeal from the railroad commissioners to the Supreme Court, as set forth in the record, that said statute was void, and was no justification of said order, under the Constitution of the United States and the Fourteenth Amendment thereof." Chas. E. Perkins, for plaintiff ; John J. Jennings and H. C. Hobin- son, for defendants. Me. Chief Jtjstice Fuller, after stating the facts in the foregoing language, delivered the opinion of the court. . . . It must be admitted that the Act of June 19, 1889, is directed to the extinction of grade crossings, as a menace to public safetj-, and that it is therefore within the exercise of the police power of the State. And, as before stated, the constitutionality of similar prior statutes, as well > as of that in question, tested by the provisions of the State and Federal Constitutions, has been repeatedly sustained by the courts of Connecti- cut. Woodmff v. CaUin, 54 Conn., 277, 6 Atl. 849 ; Westbrook's Appeal, bl Conn. 95, 17 Atl. 368 ; New York But the date is quite immaterial, and the onlj^ purpose of making this explanation is to show why these two subjects, separate in their origin, were so connected together in the publication of the colony laws, that it seems necessary now to consider them together as one act. The whole article, as it stands in the Ancient Charters and in the edition of the cojonj- laws of 1660, is as follows : — " Sect. 2. Ever}' inhabitant who is an householder shall have free fishing and fowling in any great ponds, bays, coves, and rivers, so far as the sea ebbs and flows within the precincts of the town where they dwell, unless the freemen of the same town, or the General Court, have otherwise appropriated them : provided, that no town shall appropriate to anj' particular person or persons, any great pond, containing more than ten acres of land, and that no man shall come upon another's proprietj' without their leave, otherwise than as hereafter expressed. " The which cleai'lj- to determine ; Sect. 3. It is declared, that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietor, or the land adjoining shall have propriety to the low water-mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further : provided, that such proprietor shall not by this libertj' have power to stop or hinder the passage of boats or other vessels, in or through any sea, creeks, or coves, to other men's houses or lands. " Sect. 4. And for great ponds lying in common, though within the bounds of some town, it shall be free for any man to fish and fowl there, and may pass and repass on foot through any man's propriety for that end, so they trespass not upon any man's corn or meadow. [1641,47.]" . . . We have thought it proper to examine, with some care, the founda- tion, on which the right of property in land, situated between high and CHAP. V.J COMMONWEALTH V. ALGER. 697 low water-mark in Massachusetts, rests, though it has not been much contested in reference to these harbor lines, except indirectly, and in vague and general terms. And we think it is entirely clear that, since the adoption of the colony ordinance, every grant of land, bounding upon the sea, or any creek, oove, or arm of the sea, and either in terms including flats to low water-mark, or bounding the land granted on the sea or salt water, with no terms limiting or restraining the oper- ation of the grant, and where the land and flats have not been severed by any intervening conveyance, has had the legal effect to pass an estate in fee to the grantee, subject to a limited right of way for boats and vessels. We have seen that the entire right of property in the soil was granted by the charter to the colonists, with a full power of dis- posal, and that the colonial government was clothed with so much of the royal prerogative and power, as was necessary to maintain and regulate all public rights and immunities in the same. If land so situated had, previously to the ordinance, been conveyed bj- the govern- ment, to companies of proprietors or individuals, the Act was in the nature of a grant of the flats to such prior grantees. It is said that it . was not of itself a grant, but a general law affecting the character of' property. Be it so. It was an authoritative declaration of owners, having a full right of property and power of disposal, annexing addi- tional land to that previously granted, to hold in fee, subject to a reserved easement ; and, if not strictly a grant, it partook of most of the characteristics of a grant, and could not be revoked by the power that gave it. In regard to aU grants made by the government after the ordinance, the terms of the grant, bounding the lands granted upon the sea, or arm of the sea, or places where the tide ebbed and flowed, would, ex vi termini, c&tvy a fee to low water-mark, or one hundred rods ; so that in one or the other alternative, this ordinance must govern and control the shore rights of riparian proprietors in every part of the Commonwealth. II, Assuming, then, that the defendant was owner in fee of the soil and flats upon which the wharf in question was built, it becomes neces- sarj' to inquire whether it was competent for the legislature to pass the Acts establishing the harbor lines, and what is the legal validity and effect of those Acts. v» . . The manifest object of these statutes is to prevent injurious obstruc- tions in the harbor of Boston, and to secure the free, common, and unobstructed use thereof, for the citizens of the Commonwealth, and all other persons, for navigation with ships, boats, and vessels of all kinds, as a common and public right. If this can be done, without an unwarrantable encroachment on the rights of private propertj', it is an object of great importance, and one in which the holders of riparian rights, as well as all other holders of real estate, and the whole com- munity, have a deep and abiding interest. We think it is a settled principle, growing out of the nature of well- ordered civil society, that every holder of property, however absolute 698 COMMONWEALTH V. ALGEE. [CIUP. V. and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others, having an equal right to the enjoyment of their projjertj-, nor injurious to the rights of the community All property in this Commonwealth, as well that in the interior as that bordering on tide-waters, is derived directly or indirectly from the gov- ernment, and held subject to those genei'al regulations which are neces- sary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall p«event them from being inju- rious, and to such reasonable restraints and regulations established bj- law, as the legislature, under the governing and controlling power vested in them by the Constitution, may think necessary' and expedient This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use, whenever the public exigency requires it ; which can be done only on condition of providing a reasonable compensation therefoi^ The .power we allude to is rather the police power, the power vested in the "llegislature hy the Constitution, to make, ordain, and establish all man- ^ner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the Commonwealth and of the subjects of the same* It is much easier to perceive and realize the existence and soui'ces of this power, than to mark its boundaries, or prescribe limits to its exer- cise. There are many cases in which such a power is exercised bj' all well-ordered governments, and where its fitness is so obvious, that all well-regulated minds will regard it as reasonable. Such are the laws to prohibit the use of warehouses for the storage of gunpowder near habi- tations or highways ; to restrain the height to which wooden buildings may be erected in populous neighborhoods, and require them to be covered with slate or other incombustible material ; to prohibit build- ings from being used for hospitals for contagious diseases, or for the carrying on of noxious or offensive trades ; to prohibit the raising of a dam, and causing stagnant water to spread over meadows, near in- habited villages, thereby raising noxious exhalations, injurious to health and dangerous to life. Nor does the prohibition of such noxious use of propertj', a prohibi- tion imposed because such use would be injurious to the public, although it ma3' diminish the profits of the owner, make it an appropriation to a public use, so as to entitle the owner to compensation. If the owner of a vacant lot in the midst of a city could erect thereon a great wooden building, and cover it with shingles, he might obtain a larger profit of his land, than if obliged to build of stone or brick, with a slated roof. If the owner of a warehouse in a cluster of other buildings could store quantities of gunpowder in it for himself and others, he might be saved the great expense of transportation. If a landlord could let his building CHAP, v.] COMMONWEALTH V. ALGEE. 699 for a small-pox hospital, or a slaughter-house, be might obtain an in- creased rent. But he is restrained ; not because the public have occa- sion to make the like use, or to make anj' use of the property-, or to take any benefit or profit to themselves from it ; but because it would be a noxious use, contrary to the maxim, Sic utere tuo, ut alienum non Icedas. It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner, and is therefore not within the principle of property taken under the right of eminent domain! The distinction, we think, is manifest in principle, although the facts and circumstances of different cases are so various, that it is often difHcult to decide whether a particular exercise of legislation is properly attributable to the one or the other of these two acknowledged powers. These principles were somewhat discussed, and similar views were substantial!}- adopted, in the case of Commonwealth v. Tewkshury^ 11 Met. 65. Perhaps the facts in that case were imperfectly stated, or some of the positions and illustrations were expressed in too broad and unqualified a manner ; but we are of opinion that the principle on which that judgment proceeded was correct. It assumes that all real estate, inland or on the sea-shore, derived immediately or remotely from the government of the State, is taken and held under the tacit understand- ing that the owner shall so deal with it as not to cause injury to others ; that when land is so situated, or such is its conformation, that it forms a natural barrier to rivers or tidal watercourses, the owner cannot justi- fiably remove it, to such an extent as to permit the waters to desert their natural channels, and overflow, and perhaps inundate fields and vil- lages, render rivers, ports, and harbors shaWow, and consequently deso- late, and thereby destroy the valuable rights of other proprietors, both in the navigation of the stream, and in the contiguous lands. It expresses nearly the same legal truth, which is expressed in the familiar maxim, that no owner, through whose land a natural watercourse runs, can lawfully divert it to the damage of others. But what is the diversion of a watercourse? Ordinarily, and when no such circumstances exist, the owner of land has a perfect right to use and remove the earth, gravel, and clay of which the soil is composed, as his own interest or conve- nience may require. But can he do this when the same materials form the natural embankment of a watercourse ? He may saj-, perhaps, that he merely intends to make use of materials which are his own, and to which he has a right, and for which he has other uses. But we think the law will admit of no such excuse ; he knows that, when these mate- rials, are removed, the water, bj' the law of gravitation, will rush out, 1 In this case it was held, in 1846, that a statute of Massachusetts of 1845, imposing a penalty for removing stones, grarel, or sand from any beach in the town of Chelsea, was passed for the purpose of protecting the harbor of Boston, that it applied to the owner of the beach as well as others, and that it was not a taking of property for pub- lic use, within the meaning of the Constitution, but a legitimate exercise of legislative power. — Ed. 700 COMMONWEALTH V. ALGER. [CHAP. V. and all the mischievous consequences of diverting the watercourse will follow. He must be presumed to have intended all the necessary and natural consequences of his own acts ; of course, that he intended, by those acts, to divert the watercourse ; and the law holds him responsible for them, accordingly. Principles are tested by taking extreme cases. Take the case of the river Mississippi, where large tracts of country, with cities and villages, depend for their protection upon the natural river-bank, which is private property. Perhaps, under such circum- stances, it might not be too much to say, not only that the owner can- not do any positive act towards removing«the embankment, but that he may properly be held responsible for the permissive waste of it, by negligence and inattention. And the other cases hereinbefore stated, though verj' different in their facts, are similar in principle, all being cases in which the specific use prohibited, is so prohibited because it would be noxious, and cause or threaten damage to the lives, health, comfort, or property of other members of the community, equally en- titled to protection. We think, therefore, that that case was rightly decided. Supposing the principle itself to be w>ell established, the great question then is, whether the Act in question, fixing certain harbor lines, was within it ; and we are of opinion that it is, although it may in some cases seem to trench somewhat largely' on the profitable use of indi- vidual property. This opinion is founded on several considerations. We have already alluded to the point, that a particular use of land, as well inland as on the sea-shore, which, in one situation, would be greatlj' injurious to common and public rights, in another position would be wholly harmless. A man hKVing a hill of gravel on his farm, not con- stituting the embankment of a stream, may remove the earth at his pleasure, because such use. can injure no one ; when under other cir- cumstances, it would be greatly injurious. Whether any restraint upon the use of land is necessary to the preservation of common rights and the public security, must depend upon circumstances, to be judged of by those to whom all legislative power is intrusted by the sovereign authoritj' of the State, so to declare and regulate as to secure and preserve all public rights.— We think it is a consideration entitled to some weight, that the colony ordinance itself, which changed the tenure and extended the title of riparian proprietors to low water-mark, so as to include the shore, was not absolute and unqualified. It contained a reservation, to the effect that riparian proprietors should not, by this extension of their territorial limits, have power to stop or hinder the passage of boats and vessels, in or through any sea, creeks, or coves, to other men's houses or lands. From these very general words, it is certainly diflScuFt to prescribe exact limits to this reservation. That it was designed to impose some restriction in favor of the right of navigation is quite clear. To say, as it has sometimes been contended, that the reservation was intended to prohibit any restraint upon the pre-existing right of navigation, and CHAP, v.] COMMONWEALTH V. ALGER. VOl that all persons should have the same right of passing over it, with boats and vessels, as thej' had before, would seem to restrain any build- ing thereon, and to render the Act nugatory and of no practical effect. Besides, if the purpose was, as it has often been declared to be, to enable proprietors bounding on the shore to erect and build quays, wharves, and warehouses thereon, for purposes incident to the great interests of commerce and navigation, such a construction of the Act would defeat the purposes for which it was designed. Again, the construction which has been put upon this Act, in all the judicial decisions which have been made upon it, many of which are cited in the former part of this opinion, has been, that, notwithstanding the Act vests a fee in the soil in the riparian proprietor, analogous to the jus privatum, or right of property, which at the common law the Crown could grant to a subject, yet that the land between high water and low water, until it was enclosed, built upon, or so occupied by the riparian proprietor, so far partook of its original character, that whilst covered by the tide-water the public and all persons might lawfully use it, might sail over it, anchor upon it, fish upon it, and by so doing no per- son should be held to commit a trespass, or disseise the owner, or take adverse possession. The public used only a common right, by so using these lands when covered with tide-water. In putting a construction upon any statute, everj' part shall be re- garded, and it shall be so expounded, if practicable, as to give some effect to every part of it. Looking at the terms of this law, and the purposes for which it was intended, the object seems to have been, to secure to riparian proprietors in general, without special grant, a prop- erty in the land, with full power to erect such wharves, embankments, and warehouses thereon, as would be usually required for purposes of commerce, subordinate only to a reasonable use of the same, by other individual riparian proprietors and the public, for the purposes of navigation, through any sea, creeks, or coves, with their boats and vessels. . . . But the use which we think may be justly made of these principles, and of these views of the law of England, as it had existed long anterior to the emigration of our ancestors to America, is this : They had been accustomed to regard the use of the sea-shores, for navigation and fish- ing, as publici juris, to be held and regulated for the common and general benefit ; and this, although in many cases the right of soil was vested by private grant in an individual. They had long been familiar with the practice of the Crown to make grants of the jus privatum, or right of property in the soil, in the sea-shore over which the tide ebbed and flowed, which would warrant the grantee of the Crown in erecting thereon wharves, quays, and warehouses, for facilitating navigation and commerce, provided such erections did not hinder or obstruct naviga- tion, or become a nuisance. If such a wharf or other erection were such as to interfere essentially with the common right of navigation, it would be held by the common law to be a common nuisance, and could 702 COMMONWEALTH V. ALGEK. [CHAP. V. not be justified, even by tlie king's grant, unless sanctioned by an Act of Parliament. Tiiese rules and practices were familiar to the minds of our English ancestors at their emigration, and we may presume that the colonial government had them in view when, by a general Act, it an- nexed the sea-shore to the upland, and made it the private property of the riparian proprietor. It must have well understood that all estate granted by the government to individuals is subject, by reason- able implication, to such restraints in its use, as shall make the enjoj'- raent of it by the grantee consistent with the equal enjoyment by others, of their several and common rights. When therefore the government did, by such general Act, grant a right of separate property in the soil of the sea-shore, to enable the riparian proprietor to erect quays and wharves for a better access to the sea, and b3- the same Act reserved some right to individuals and the public of passing and repassing with vessels, but without defining it, it seems just and reasonable to construe such reservation much more liberally in favor of the right reserved, than it otherwise would be under other circumstances. And so in the exercise of the more general power of government, so to restrain the injurious use of propertj-, it seems to apply more sig- niflcanth' and more directly' to real estate thus situated on the sea-shore, separating the upland from the sea, to which the public have a common and acknowledged right, so that such estate should be held subject to somewhat more restrictive regulations in its use, than interior and up- land estate remote from places in which the public have ^ common right. The circumstances are diffei-ent. In respect to land lying in the interior, and used for agricultural purposes, there is little occasion to impose any restraint upon the absolute dominion of the owner, be- cause such restraint is not necessary to prevent it from being injurious. But the circumstances are entirely diflTerent in regard to the sea-sliore, which lies between the sea, admitted to be common to all, and the use of which is of vast importance to the public, and ports and places, without access to which, the use of the sea for navigation would be of little value. * Considering, therefore, that all real estate derived from the govern- ment is subject to some restraint for the general good, whether such restraint be regarded as a police regulation or of any other character ; considering that sea-shore estate, though held in fee by the riparian proprietor, both on account of the qualified resei'vation under which the grant was made, and the peculiar nature and character, position, and relations of the estate, and the great public interests associated with it, is more especially subject to some reasQaable restraints, in order that the exercise of full dominion over it, by the proprietor, may not be noxious to others, and injurious to the public, Aie court are of opinion that the legislature has power, by a general mw affecting all riparian proprietors on the same line of shore equally and alike, to make reasonable regulations, declaring the public right, and provid- ing for its preservation by reasonable restraints, and to enforce these restraints by suitable penalties.^ CHAP, v.] COMMONWEALTH V. ALGEK. 703 .Wherever there is a general right on the part of the public, and a general dut^' on the part of a land-owner, or any other person, to respect such right, we think it is competent for the legislature, bj- a specific enactment, to prescribe a precise, practical rule for declaring, establish- ing, and securing such right, and enforcing respect for it^ It may be said in general terms, independently of any positive enactment, that it is the right of society, in the midst of a populous settlement, to be exempt from the proximity of dangerous and noxious trades ; and that it is the duty of the owner of real estate, in the midst of many habita- tions, to abstain from erecting buildings thereon, or otherwise using it, for carrying on a trade dangerous to the lives, health, or comfort of the inhabitants of such dwellings ; although a trade in itself useful and beneficial to the public. But such general duty and obligation not being fixed by a rule precise enough foi- practical purposes, we think it is competent for the legislature to interpose, and by a specific enactment to declare what shall be deemed a dangerous or noxious trade, under what circumstances and within what distance of habitations it may or shall not be set up, how the use of it shall be regulated, and to prohibit any other than such regulated use, by specific penalties. This principle of legislation is of great importance and extensive use, and lies at the foundation of most enactments of positive Jaw, which de- fine and punish mala prohibita. Things done may or may not be wrong in themselves, or necessarily injurious and punishable as such at com- mon law ; but laws are passed declaring them offences, and making them punishable, because they tend to injurious consequences ; but more especially for the sake of having a definite, known, and authori- tative rule which all can understand and obey. In the case already put, of erecting a powder magazine or slaughter-house, it would be indictable at common law, and punishable as a nuisance, if in fact erected so near an inhabited village as to be actually dangerous or noxious to life or health. Without a positive law, everybody might agree that two hundred feet would be too near, and that two thousand feet would not be too near; but within this wide margin, who shall say, who can know, what distance shall be too near or otherwise? An authoritative rule, carrying with it the character of certainty and preci- sion, is needed. The tradesman needs to know, before incurring ex- pense, how near he may build his works without violating the law or committing a nuisance ; builders of houses need to know, to what dis- tance they must keep from the obnoxious works already erected, in order to be sure of the protection of the law for their habitations. This requisite certainty and precision can only be obtained by a positive enactment, fixing the distance, within which the use shall be prohibited as noxious, and beyond which it will be allowed, and enforcing the rule thus fixed, by penalties. Many cases will suggest themselves, where the legislature interposes by statute to declare, protect, and regulate public rights, although those rights are public easements only, over lands of which the fee of the soil 704 COMMONWEALTH V. ALGEK. [CHAP. V. is in private proprietors. Sucii are laws regulating the construction a^id repairs of roads, highwaj-s, and bridges ; declaring how they shall be gi-aded, what barriers shall be erected to guard travellers against dan- gerous places, and what obstructions shall be removed. . . . But in reference to the present case, and to the Act of the Legislature, establishing lines in the harbor, bej-ond which private proprietors are prohibited from building wharves, it is urged that such a restraint upon the estate of an individual, debarring him to some extent from the most beneficial use of it, is in effect taking his estate. If such restraint were in fact imposed upon the estate of one peoprietor only, out of several estates on the same line of shore, the objection would be much more formidable. But we are to consider the subject-matter, to which such restraint applies. The value of this species of estate, that of shore and flats, consists mainly in the means it affords of building wharves from the upland towards deep water, to place merchandise and build wharves upon, and principally to afford access, to vessels requiring considerable depth of water, from the sea to suitable landings. Now, if along a shore where there are flats of considerable extent, one were restrained to a certain le;igth, whilst others were allowed to extend further, the damage might be great. So if one were allowed to extend, and the coterminous proprietors adjacent were restrained, it would be obviously more injurious. The one extended would stop or check the current along the others, cause mud to accumulate near them, and thus render the water shoal at those wharves. But where all are permitted to ex- tend alike, and all are restrained alike, bj- a line judiciously adapted to the course of the current, so that all have the benefit of access to their wharves, with the same depth of water, and the same strength of current at their heads, the damage must be comparatively less. But of this the legislature must judge. Having once come to the conclusion that a case exists, in which it is competent for the legisla- ture to make a law on the subject, it is for them, under a high sense of duty to the public and to individuals, with a sacred regard to the rights of propertj' and all other private rights, to make such reasonable reg- ulations as they may judge necessarj- to protect public and private rights, and to impose no larger restraints upon the use and enjoyment of private propertj-, than are in their judgment strictly necessary to preserve and protect the rights of others. In regard to the case of Mr. Alger, the report states that a certain piece of wharf, called a triangular piece, was erected and placed in its position beyond the line, after the law fixing the line had been passed ; but that some other portions, though actually beyond the line, were erected, and the obstructions complained of actuallj' placed in their position, before the law was passed ; and also that the wharf complained of does not obstruct the navigation of boats and vessels. In regard to the first suggestion, it may be necessary to examine the facts more minutelj- before any final judgment is entered. If any por- tion of this erection, described in the indictment, had been actually made CHAP, v.] COMMONWEALTH V. ALGEK. 705 and placed in its position before the Act was passed, the court are all of opinion that the owner is not liable to its penalties. These laws were future and prospective in their terms and in their operation. They pro- ceed on the assumption, that before they were passed, every man had a right to build on his own flats, if the erection did not in fact operate to impede navigation, and render him indictable as at common law ; and that the common law, in thus lending its aid in the prosecution of actual injuries to navigation, to be proved in each case as nuisances, would be sufficient to secure the public against encroachments without legislation. But, for the reasons hereinbefore given, it seems to us highly important to have a more precise and definite law made and promulgated, by which all persons maj- more certainly know their own and the public rights, aud goveru themselves accordingly. If, indeed, before the passing of these laws, anj- one had so built into navigable water as to cause a public nuisance, he may be liable to in- dictment and punishment, but not b}- these laws, fixing harbor lines. It follows, therefore, that all persons who built on their own soil before these laws, in a manner not amounting to a public nuisance, indepen- dently of them, had exercised only their just and lawful right ; and any laws, made to punish acts lawful at the time they were done, would be ex post facto, contrary to the Constitution and to the plainest principles of justice, and of course inoperative and void. In regard to the other suggestion, that it is found bj' the case that the particular wharf of Mr. Alger did not obstruct or impede navigation, it is proper to say, that if we are right in principle, we are bound to hold tiiat this circumstance can afford no defence. A consideration of this fact illustrates the principles we have been discussing. The reason whj- it is necessary to have a certain and authoritative law, is shown by the difficult^', not to say impracticability, of inquiring and deciding as a fact, in each particular case, whether a certain erection in tide-water is a nuisance at common law or not ; and when ascertained and adjudged, it affords no rule for any otlier case, and can have little effect in main- taining and protecting the acknowledged public right. It is this con- sideration (the expediency and neeessitj' of defining and securing the rights of the public), which creates the exigency, and furnishes the legislatui'e with the authority to make a general and precise law ; but when made, because it was just and expedient, and because it is law, it becomes the dutj' of every person to obey it and comply with it. The question under the statute tlierefore is, not whether any wharf, built after the statute was made and promulgated, was an actual obstruction to na,vigation, but whether it was within the prohibited limit. On the whole, the court are of opinion that the Act fixing a line within the harbor of Boston, beyond which no riparian proprietor should erect a wharf or other permanent structure, although to some extent it prohibited him from building such structure on flats of which he owned the fee, was a constitutional law, and one which it was com- TOL. I — 45 706 THORPE V. RUTLAND, ETC. RAILROAD CO. [CHAP. V. petent for the legislature to make ; that it was binding on the defend- ant, and rendered him obnoxious to its penalties, if he violated its provisions." THOEPE V. RUTLAND AND BURLINGTON RAILROAD COMPANY. Supreme Court of Verijont. 1855. [27 Vt. 140.] D. A. SmaWey, for the defendants. J. Maeck, for the plaintiff. [For the statement of facts and the beginning of the opinion, see ante, p. 157. The statute in question is given in the note.* The opinion con- tinues as follows :] Redfield, Ch. J. . . . II. It being assumed then, that the legisla- ture may control the action, prescribe the functions and duties of cor- porations, and impose restraints upon them to the same extent as upon natural persons, that is, in all matters coming witliin the general range of legislative authoritj', subject to the limitation of not impair- ing the obligation of contracts, provided the essential franchise is not taken without compensation, it becomes of primar}- importance to deter- mine the extent to which the charter of a corporation maj- fairly be regarded as a contract within the meaning of the United States Con- stitution. . . . [Here the reasoning in the case of Dartmouth College V. Woodward, 4 Wheat. 518, is stated.] But it has sometimes been supposed that corporations possess a kind of immunity and exemption from legislative control, extending to everything materially affecting their interest, and where there is no ex- press reservation in their charters. It was upon this ground that a per- petual exemption from taxation was claimed in Providence Sank v. Hillings, 4 Peters, 514, their charter being general, and no power of taxation reserved to the State. The argument was, that the right to tax either their property or tlieir stock was not ox\\y an abridgment of the beneficial use of the franchise, but if it existed, was capable of being so exercised as virtually to destroj' it. This was certainly plausible, and the court do not deny the liability to so exercise the power of tax- ation as to absorb the entire profits of the institution. But still they deny the exemption claimed. Chief Justice Marshall there says: 1 Compare Grand Rapids v. Powers, 89 Mich. 94 ; Summermlle v. Presslei/, 33 So. Ca. .56 (1890) ; St. Louis t. Hill, 22 S. W. Rep. 861 (1893). —Ed. 2 The statute is as follows : " Each railroad corporation shall erect and maintain fences on the lines of their road, . . . and also construct and maintain cattle-guards at all farm and road crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad. Until such fences and cattle-guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses, or other animals thereon, if occasioned by want of such fences and cattle-guards." — Comp. Stat. 200, § 41. CHAP, v.] THOIiPE V. KUTLAND, ETC. RAILROAD CO. 707 " The great object of an incorporation is, to bestow the character and pioperlies of individuality on a collected and changing body of men. Any privileges which may exempt it from the burdens common to indi- viduals, do not flow necessarily from the charter, but must be expressed in it, or they do not exist." This is sufficiently explicit, and upon examination will be found, I think, to have placed the matter upon its true basis. In reason, it would seem that no*fault could be found with the rule here laid down by the great expounder of American constitutional law. As to the general liability to legislative control, it places natural persons and corporations precisely upon the same ground. And it is the true ground, and the only one upon which equal rights and just liabilities and duties can be fairly based. To apply this rule to the present case, it must be conceded that all which goes to the constitution of the corporation and its beneficial op- eration is granted bj- the legislature, and cannot be revoked, either directly or indirectly, without a violation of the grant, which is regarded as impairing the contract, and so prohibited b}- the United States Con- stitution. And if we suppose the legislature to have made the same grant to a natural person which they did to defendants, which they may undoubtedly do (Moor v. Veazie, 32 Maine, 343 ; s. c. in error in the Sup. Ct. U. S., 4 Peters, 565), it would scarcely be"^supposed that thej' thereby parted with any general legislative control over such person, or the business secured to him. Such a supposition, when applied to a single natural person, sounds almost absurd. But it must, in fact, be the same thing when applied to a corporation, however extensive. In either case, the privilege of running the road, and taking tolls, or fare and freight, is the essential franchise conferred. Any act essentially paralyzing this franchise, or destroying the profits therefrom arising, would.no doubt be void. But beyond that, the entire power of the legislative control resides in the legislature, unless such power is ex- pressly limited in the grant to the corporation, as by exempting their propeity from taxation, in consideration of a share of the profits, or a bonus, or the public duties assumed. And it has been questioned how far one legislature could, in this manner, abridge the general power of every sovereignty to impose taxes to defray the expense of public func- tions. Brewster v. Hough. 10 New Hamp. 138 ; Mechanics' and Traders' Bank v. BeboU, 1 Oliio St. 591 ; Toledo Bank v. Bond, Ibid., 622. It seems to me there is some ground to question the right of the legislature to extinguish, bj- one act, this essential right of sovereignty. I would not be surprised to find it brought into general doubt. But at present it seems to be pretty generally acquiesced in. State of iVeio Jersey v. Wilson, 7 Cranch, 164 ; reaffirmed in Gordon v. Appeal Tax Court, 3 Howard, 133. But all the decisions in the United States Su- preme Court, allowing the legislature to grant irrevocablj- anj- essential prerogative of sovereignty, require it to be upon consideration, and in the case of corporations, contemporaneous with the creation of the fran- 708 THOErE V. RUTLAND, ETC. RAILROAD CO. [CHAP. T. chise. Richmond H. Co. v. The Xiouisa B. Co., 13 Howard, 71. Similar decisions in regard to the i-ight of the legislature to grant per- petual exemption from taxation to corporations and propertj', the title to which is derived from the State, have been made bj- this court (Iler- rick V. Mandolph, 13 Vt. 525) ; and in some of the other States (Landon V. Litchfield, 11 Conn. 251, and cases cited, O'Donnell v. JiaUey, 24 Miss. 386). But these cases do not affect to justify even this express exemption from taxation being held inviolable, except upon the ground that it formed a part of the value of the grant, for which the State re- ceived or stipulated for a consideration, ^t, But in the present case the question arises upon the statute of 1850, requiring all railways in the State to make and maintain cattle-guards at farm-crossings, and until they do so, making them liable for damage done to cattle by their engines, by reason of defect of fences or cattle- guards. The defendant's charter required them to fence their road, but no express provision is made in regard to cattle-guards. There is no pretence of anj- expi'ess exem|)tion in the charter upon this subject, or that such an implied exemption can fairl3- be said to form a condition of the Act of Incorporation, unless everything is implied hy grant, which is not expressl}- inhibited, whereas the true rule of construction in re- gard to the powers of corporations is, that they are to take nothing by intendment, but what is necessary to the enjoj-ment of that which is expressly granted. . . . But upon the principle contended for in Providence Bank v. Bil- lings, supra, and sometimes attempted to be maintained in favor of other corporations, most of the railways in this State would be quite bej'ond the control of the legislature, as well as to their own police, as that of the State generally. For in ver}' few of their charters are these matters defined, or the control of them reserved to the legislature. Many of the charters do not require the roads to be fenced. But in Quimby v. 77)6 Vermont Cent. R. Co.. 23 Vt. 387, it was considered that the corporation were bound, as part of the compensation to land-owners, either to build fences or pay for them. The same was also held in Morss v. Boston and Maine R., 2 Cush. 636. Any other construction will enable railroad corporations to take land without adequate compen- sation, which is in violation of the State Constitution, and would make the charter void to that extent. So, too, in regard to farm-crossings, the charters of many roads are silent. And it has been held that the provision for restoring private ways does not apply to farm-crossings. But the railways, without exception, built farm-crossings, regard- ing them as an economical mode of reducing land damages, and they are now bound to maintain them, however the case might have been if none had been stipulated for, and the damages assessed accordinglj-. 3[anning v. Eastern Counties Railway Co., 12 M. & W. 237. So, too, many of the charters are silent as to cattle-gnards at road-cross- ings, but the roads generally acquiesced in their necessity, both for the security of property and persons upon the railroad and of cattle in the CHAP, v.] THORPE V. RUTLAND, ETC. RAILROAD CO. 709 highway. For it has been held that this provision is for the protection of all cattle in the highwa}-. Fawcett v. 2%e York and North Mid- land R. Co., 2 Law & Eq. 289 ; Trow v. Vermont Cent. R. Co., 24 Vt. 487. Thus making a distinction in regard to the extent of the lia- bility of railways for damages arising through defect of fences, and farm-crossings, and cattle-guards, at those points, and those which arise from defect of fences, and cattle-guards at road-crossings, the former being only for the protection of cattle, rightfully in the adjoining fields, as was held in Jackson v. Rutland & B. R. Co., 25 Vt. 150, and the other for the protection of all cattle in the highway, unless,' perhaps, in some excepted cases, amounting to gross negligence in the owners. And there can be no doubt of the perfect right of the legislature to make the same distinction in regard to the extent of the liability- of rail- ways in the Act of 1850, if such was their purpose, which thus becomes a matter of construction. But the present case resolves itself into the narrow question of the right of the legislature, by general statute to require all railways, whether now in operation, or hereafter to be chartered, or built, to fence their roads upon both sides, and provide sufficient cattle-guards at all farm and road crossings, under penalty of paj-ing all damage caused by their neglect to comply with such requirements. It might be contended that cattle-guards are a necessarj- part of the fence at all crossings; but that has been questioned, and we think the matter should be decided upon the general ground. It was supposed that the question was settled by this court, in Nelson v. V. & C. R. Co., 26 Vt. 717. The general views of the court are there stated as clearly as it could now be done, but as the general question is of vast importance, both to the roads and the public, and has again been urged upon our consideration, we have examined it very much in detail. We think the power of the legislature to control existing railwa3's in this respect, maj' be found in the general control over the police of the country, which resides in the law-making power in all free States, and which is, by the fifth article of the bill of rights of this State, expressly declared to reside perpetually and inalienably in the legislature, which is, perhaps, no more than the enunciation of a general principle appli- cable to all free States, and which cannot, therefore, be violated so as to deprive the legislature of the power, even by express grant to any mere public or private corporation. And when the regulation of the poUce of a city or town, by general ordinances, is given to such towns and cities, and the regulation of their own internal police is given to railroads to be carried into effect by their by-laws and other regulations, it is, .of course alwa3-8, in all such cases, subject to tlie superior control of the legislature. That is a responsibility which legislatures cannot divest themselves of, if they would. This police power of tiie State extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State. According to the maxim. Sic utere tuo ut 710 THORPE V. RUTLAND, ETC. RAILROAD CO. [CHAP, V. alienum non Icedas, which being of universal application, It must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others. So far as railroads are concerned, this police power which resides pri- marily and ultimately in the legislature is twofold : 1. The police of the roads, which, in the absence of legislative control, the corporations themselves exercise over tiieir operatives, and to some extent over all who do business with them, or come upon their grounds, through their general statutes, and by their officers. We apprehend there can be no manner of doubt that the legislature may, if they deem the jjubliG good requires it, of which they are to judge, and in all doubtful cases their judgment is final, require the several railroads in the State to establish and maintain the same kind of police which is now observed upon some of the more important roads in the country for their own security, or even such a police as is found upon the English railways, and those upon the continent of Europe. No one ever questioned the right of the Connecticut Legislature to require trains upon all their railroads to come to a stand before passing draws in bridges ; or of the Massachusetts Legislature to require, the same thing before passing another railroad. And by parity of reason may all railways be required so to conduct them- selves, as to other persons, natural or corporate, as not unreasonably to injure them or their propertj-. And if the business of railways is specially dangerous, they may be required to bear the expense of erect- ing such safeguards as will render it ordinaril3' safe to others, as is often required of natural persons under such circurastancesi There would be no end of illustrations upon thissubject, -which, in the detail, are more familiar to others tlian to us. It may be extended to the supervision of the track, tending switches, running upon the time of other trains, running a road with a single track, using improper rails, not using proper precaution b3- way of safety beams in ease of the breaking of axle-trees, the number of brakemen upon a train with refer- ence to the number of cars, emplojnng intemperate or incompetent engi- neers and servants, running bej'ond a- given rate of speed, and a thousand similar things, most of which have been made the subject of legislation or judicial determination, and all of which may be. JBege- man V. Western It. Corp., 16 Barbour, 353. 2. There is also the general police power of tlie State, by which per- sons and property are subjected to all kinds of restraints and burdens, in order to secure the gener-al comfort, health, and prosperity of the State, of the perfect right in the legislature to do which no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned. And it is certainly calculated to excite surprise and alarm, that the right to do the same in regard to railways should be made a serious question. This objection is made generally upon two grounds : 1. That it subjects corporations to vir- tual destruction by the legislature ; and 2. That it is an attempt to con- trol the obligation of one person to another, in matters of merely pri- vate concern. • CHAP, v.] THOKPE V. RUTLAND, ETC. EA'ILROAD CO. 711 The first point has already been somewhat labored. It is admitted that the essential franchise of a private corporation is recognized by the best authoritj' as private propertj-, and cannot be taken without com- pensation, even for public use. Armington v. Barnet, 15 Vt. 745 ; West River Bridge Co. v. Dix, 16 Vt. 446, s. c. in error in the United States Sup. Ct. ; 6 Howard, 507; 1 Shelford (Bennett's ed.),441, and cases cited. All the cases agree that the indispensable franchises of a corporation cannot be destroyed or essentially modified. This is the verj' point upon which the leading case of Dartmouth College v. Woodward was decided, and which every well-considered case in this country maintains. But when it is attempted upon this basis to deny the power of regulat- ing the internal police of the railroads'; and their mode of transacting their general business, so far as it tends unreasonably to infringe the rights or interests of others, it is putting the whole subject of railway control quite above the legislation of the country Many analogous subjects may be adduced to show the right of legislative control over matters chiefly of private concern. It was held, that a statute making the stockholders of existing banks liable for the debts of the bank was a valid law as to debts thereafter contracted, and binding to that extent upon all stockholders, subsequent to th'e passage of the law. Stanley v. Stanley, 26 Maine, 191. But where a bank was chartered with power to receive money on deposit, and pay away the same, and to dis- count bills of exchange, and make loans, and a statute of the State sub- sequentl3^ made it unlawful for any bank in the State to transfer by indorsement or otherwise, any bill or note, etc., it was held that the Act was void, as a violation of the contract of the State with the bank in granting its charter. Planters' Bank v. Sharp, and Baldwin v. Payne, 6 Howard, 301, 326, 327, 332; Jamison v. Planters' and Merchants' Bank, 23 Alabama, 168. It is true that any statute de- stroying the business or profits of a bank, and equally of a railroad, is void. Hence a statute prohibiting banks from taking interest, or dis- counting bills or notes, would be void, as striking at the verj' founda- tion of the general objects and beneficial purposes of the charter. But a general statute reducing the rate of interest, or punishing usury, or prohibiting speculations in exchange or in depreciated paper, or the issuing of bills of a given denomination, or creating other banks in the same vicinitj', have always been regarded as valid. And while it is conceded the legislature could not prohibit existing railwa3's from earrj-- ing freight or passengers, it is believed that beyond all question, it may so regulate these matters as to impose new obligations and restric- tions upon these roads materially affecting their profits, as hy not allow- ing them to run in an unsafe condition, as was held as to turnpikes. State V. Bosworth, 13 Vt. 402. But a law allowing certain classes of persons to go toll free is void. Pingrey v. Washburn, 1 Aiken, 268. So, too, chartering a railroad along the same route of a turnpike is no violation of its rights ( White River Turnpike Co. v. Yermont Cent. R. 712 THORPE V. EUTLAND, ETC. EAILEOAD CO. [CHAP. V. Co., 21 Vt. 590 ; Turnpike Co. v. Railway Co., 10 Gill & Johnson, 392) ; or chartering another railway along the same route of a former one, to whom no exclusive rights are granted in terms. Matter of Hamilton Avenue, 14 Barbour, 405 ; or the establishment of a free way by the side of a toll bridge ( Charles River Bridge v. Warren Bridge, 11 Peters, 420). The legislature, may no doubt, prohibit railroads from carrying freight which is regarded as detrimental to the public health or morals, or the public safety generally, or they might probably be made liable as insur- ers of the lives and limbs of passengers as they virtually are of freight. The late statute giving relatives the right to recover damages where a person is killed, has wrought a very important change in the liabilit}- of railwaj's, ten times as mucli, probabl}', as the one now under considera- tion ever could do. And I never knew the right of the legislature to imppse the liability to be brought in question. ffiut the argument that these cattle-guards at farm-crossings are of so private a character as not to come within the general range of legisla- tive .cognizance, seems to me to rest altogether upon a misapprehension. It makes no difference how few or how manj* persons a statute will be likely to affect. If it professes to regulate a matter of public concern, and is in its terms general, applying equally to all persons or property coming within its provisions, it makes no difference in regard to its character or validit3-, whether it will be likely to reach one case or ten thousandX A statute requiring powder-mills to be built remote from the villages or highways, or to be separated from the adjoining lands by anj- such muniment as ma3' be requisite to afford security to others' property or business, would probablj' be a valid law if there were but one powder-mill in the State, or none at all, and notwithstanding the whole expense of the protection should be imposed upon the proprietor of the dangerous business. And even where the State legislature have created a coi-poration for manufacturing powder at a given point, at the time, remote from inhabitants, if in process of time dwellings approach the localitj-, so as to render the further pursuit of the business at that point destructive to the interests of others, it may be required to be sus- pended or removed, or secured from doing harm, at the sole expense of such corporation. This very point is, in effect, decided in regard to Trinity churchyai'd, which is a roj-al grant for interment, securing fees to the proprietors, in the case of Coates v. Tlie City of New York, 7 Cowen, 585 ; and in regard to 7%e Presbyterian Church, in their case V. The City of New York, 5 Cowen, 538. So, too, a statute requiring division fences between adjoining land proprietors, to be built of a given height or quality, although differing from the former law, would bind natural persons and equally corpora- tions. But a statute requiring land-owners to build all their fences of a given qualitj- or height, would no doubt be invalid, as an unwarrant- able interference with matters of exclusively private concern. But the farm-crossings upon a railway are by no means of this character. They CHAP, v.] THOKPE V. RUTLAND, ETC. KAILEOAD CO. 713 are division fences between adjoining occupants, to all intents. In addition to this, they are the safeguards which one person, in the exer- cise of a dangerous business, is required to maintain in order to pre- vent the liability to injure his neighbor. This is a control by legislative action coming within the obligation of the maxim. Sic utere tuo, and ■which has always been exercised in this manner in all free States, in regard to those whose business is dangerous and destructive to other persons' property or business. Slaughter-houses, powder-mills, or houses for keeping powder, unhealthy manufactories, the keeping of wild animals, and even domestic animals, dangerous to persons or prop- erty, have always been regarded as under the control of tlie legislature. It seems incredible how any doubt should have arisen upon the point now before the court. And it would seem it could not, except from some undefined apprehension, which seems to have prevailed to a considerable extent, that a corporation did possess some more exclusive powers and privileges upon the subject of its business, than a natural person in the same business, with equal power to pursue and to accomplish it, which, I trust, has been suflBciently denied. , I do not now perceive any just ground to question the right of the legislature to make railways liable for all cattle killed by their trains. It might be unjust or unreasonable, but none the less competent. Oirt- man v. Central Railroad, 1 Kelly (Georgia), 173, is sometimes quoted as having held a different doctrine, but no such point is to be found in the case. The British Parliament for centuries, and most of the Ameri- can legislatures, have made the protection of the lives of domestic ani- mals, the subject of penal enactment. It would be wonderful if they could not do the same as to railwaj's or if thej' could not punish the killing, by requiring them to compensate the owner, or, as in the pres- ent case, to do it until they used certain precautions in running their trains, to wit, maintained cattle-guards at roads and farm-crossings. There are some few cases in the American courts bearing more di- rectly upon the very point before us. In Suydamv. Moore, 8 Barbour, 358, the ve;-v same point is decided against the rsiilway ; Willard, J., compares the requirement to the law of the road, the passing of canal- boats, and keeping lights at a given elevation in steamboats, and says it comes clearly within the maxim Sic utere tuo ; and in Waldron v. The Rensselaer & Saratoga R. Co., Ibid. 390, the same point is de- cided, and the same judge says the requirements of the new Act, which is identical with our statute of 1850, as applied to existing railways, " are not inconsistent with their charter, and are. in our judgment, such as the legislatui-e had the right to make." They were designed for the public safety, as well as the protection of property. In Milliman v. The Oswego & Syracuse R., 10 Barbour, 87, the ground is assumed that the new law was not intended to apply to existing roads. And no doubt is here intimated of the right of the legislature to impose similar regulations upon existing railways. The N. Y. Revised Statutes sub- ject all corporate charters to the control of the legislature, but it has 714 THORPE V. KUTLAND, ETC. RAILROAD CO. [CHAP. V. been there considered, that this reservation does not extend to matters of this kind, but that the right depends upon general legislative authoritj-, The case of The Galena and Chicago Union B. Co. v. Loomis, 13 Illi- nois, 548, decides the point that the legislature may pass a law, requiring all railways to ring the bell or blow the whistle of their engines imme- diately before passing highways at grade. The court say, " The legis- lature has the power, by general laws, from time to time as the public exigencies may require, to regulate corporations in their franchises, so as to provide for the pubUe safety. The provision in question is a mere police regulation, enacted for the protecfion and safety of the public, and in no manner interferes with, or impairs the powers conferred on the defendants in their Act of Incorporation." All farm-crossings in England are required to be above or below grade, so as not to endanger passengers upon the road, and so of all road-crossings there, unless protected by gates. I could entertain no doubt of the right of the legislature to require the same here as to all railways, or even to subject their operations to the control of a board of commissioners, as has been done in some States. In Benson v. New York City, 10 Barbour, 223, it was held, that a ferry, the grant to which was held, not under the authority of the State, but from the city of New York, and which was a private corporation, as to the stock- might be required by the legislature to conform to such regulations, re- strictions, and precautions as were deemed necessary for the public benefit and security. The opinion of Woodbury, Justice, in JEast Hart- ford V. Hartford Bridge Co., 10 Howard, 511, assumes similar grounds, although that case was somewhat different. The case of Swan V. Williams, 2 Michigan, 427, denies that railways are private corpora- tions. But that proposition is scarcel3' maintainable so far as the pe- cuniary interest is concerned. If the stock is owned by private persons, the corporation is private so far as the right of legislative control is concerned, however public the functions devolved upon it rBa3' be. The language of Marshall, Chief Justice, in Dartmouth College v. Wood- ward, 4 Wheaton,_518, 629, seems pertinent to the general question of what laws are prohibited on the ground of impairing the obligation of contracts : " That the framers of the Constitution did not intend to re- strain the States in the regulation of their civil institutions, adopted for internal government, and that the instrument thej' have given us is not to be so construed, may be admitted." And equallj' pertinent is the commentary of Parsons on Contracts, 2 vol. 511, upon the provision of the United States Constitution in relation to the obligation of contracts. " We may say that it is not intended to apply to public property, to the discharge of public duties, to the possession or exercise of public rights, nor to anj' changes or qualificatious in any of these, which the legisla- ture of a State may at any time deem expedient." We conclude then, that the authority of the legislature to make the requirement of existing railwa3-s may be vindicated, because it comes fairly within the police of the State ; 2. Because it regards the division CHAP, v.] WYNEHAMEE V. THE PEOPLE. 715 fence between adjoining proprietors ; 3. Because it properly concerns the safe mode of exercising a dangerous occupation or business ; and 4. Be- cause it is but a reasonable provision for the protection of domestic animals, all of which interests fall legitimateh' within the range of legis- lative control, both,in regard to natural and artificial persons. Judgment affirmed.^ Bennett, J., dissenting. WYNEHAMER v. THE PEOPLE. THE PEOPLE V. TOYNBEE. New York Court of Appeals. 1856. [13 N. Y. 378.] Wynehamer, the defendant in the court below in the case first above entitled, was, in July, 1855, indicted at a court of general sessions, held in and for the county of Erie, for selling intoxicating liquors, contrary to the provisions of the statute entitled " An Act for the Pre- vention of Intemperance, Pauperism, and Crime." ^ The indictment 1 There are some analogous subjects where legislative control has been sustained by the courts which may properly be here alluded to. The expense of sidewalks and curbstones in cities and towns has been imposed upon adjacent lots, chiefly for general comfort and convenience. Paxson v. Sweet, 1 Green, 196; City of Lowell v. Hadley, 8 Metcalf, 180. Unlicensed persons not allowed to remove house-dirt and offal from the streets. Vandine's Case, 6 Pick. 187. Prohibiting persons selling produce not raised upon their own farms, from occupying certain stands in the market. Nightin- gale's Case, 11 Pick. 168. See also Buffalo v. Webster, 10 Wendell, 99 ; Bush v. Sea- bury, 8 Johns. 327. Prohibiting the driving or riding horses faster than a walk in certain streets. Commonwealth v. Wirrcester, 3 Pick. 462. Prohibiting bowling-alleys. Tanner v. The Trustees of the. City of Albion, 5 Hill, 121, or the exhibition of studhorses or stallions in public places. Nolan v. Mayor of Franklin, 4 Yerger, 163." The same may be said of all statutes regulating the mode of driving upon the highway or upon bridges, the validity of which have long been acquiesced in. The destruction of private property in cities and towns, to prevent the spread of con- flagrations, is an extreme application of the rule, compelling the subserviency of pri- vate rights to public security, in cases of imperious necessity. But even this has been fully sustained after the severest scrutiny. Hale v. Lawrence, and other cases upon the same subject; 1 Zabri,skie, 714, 3 Zabriskie, 590, and cases there referred to from the New York Reports. There is, in short, no end to these illustrations, when we look critically into the police of the large cities. One in any degree familiar with this sub- ject would never question the right depending upon invincible necessity, in order to the maintenance of any show of administrative authority among the class of persons with which the city police have to do. To such men afty doubt of the right to subject persons and property to such regulations as the public security and health may require, regardless of merely private convenience, looks like mere badinage. They can scarcely regard the objector as altogether serious. And generally, these doubts in regard to the extent of governmental authority come from those who have had small experience. [This appears to be the Chief Justice's note. See also Minneapolis, Spc. Ry. Co. v. Em- mons, 149 U. S. 364 (1893). — Ed.] 2 The reporter does not give the terms of the statute. The following summary of it is taken from the opinion of A. S. Johnson, J., at pp. 406-409 : " The sections which 716 WYNEHAMEE V. THE PEOPLE. [CHAP. V. contained several counts, each of which charged in substance that the defendant, on a day subsequent to the 4th of Jul3-, 1855, at the city of particularly relate to it are substantially these, omitting such parts as do not hear upon this case : ' It shall he the duty of every sheriff, under sheriff, deputy sheriff, con- stable, marshal, or policeman, to arrest any person whom he shall see actually engaged in the commission of any offence in violation of the 1st section of this Act, and to seize all liquor kept in violation of said section, at the time and place of the commis- sion of such offence, together with the vessels in which the same is contained, and forthwith to convey such person before any magistrate of the same city or town, to be dealt with according to law, and to store the liquor and vessels so seized in some con- venient place, to he disposed of as hereinafter provided. It shall be the duty of every officer by whom any arrest and seizure shall be made, under this section, to make com- plaint on oath against the person arrested, and to prosecute such complaint to judg- ment and execution.' — Laws of 1855, p. 340, § 12. 'All liquors and vessels in which they are contained, which shall have been found and seized in the possession of any person who shall have been arrested for violating any provision of the 1st section and not claimed by any other person, shall, upon conviction of such person of such offence, be adjudged forfeited.' § 13. When any liquor seized under any provision of the Act sball be adjudged forfeited, as provided in any section of the Act, it shall be the duty of the magistrate (after the determination is become final) forthwith to issue a warrant, commanding that the liquor he destroyed. The officer to whom the warrant shall be delivered is to destroy it and make a return of the destruc- tion, and then an execution is to be issued to sell the vessels which contained the liquor. § 10. Every justice of the peace, police justice, county judge, city judge (certain other officers in New York), and in all cities where there is a recorder's court, the recorder, has power to issue process, to hear and determine charges, and punish for all offences under the Act, and to hold courts of special sessions for the trial of such offences. The section proceeds : ' Such court of special sessions shall not be required to take the examination of any person brought before it upon charge of an offence under the Act, but shall proceed to trial as soon thereafter as the complainant can be notified.' Power to adjourn, for good cause, is given for not exceeding twenty days. At the time of joining issue, and not after, either party may demand trial by jury, in which case the magistrate is to cause a jury to be summoned and empanelled, as in other criminal cases in courts of special sessions. § 5. No person who shall have been convicted of any offence against any provision of the Act, or who shall be engaged in4he sale or keeping of intoxicating liquors, contrary to the Act, shall be competent to act as a juror upon any trial under any provision of the Act. § 16. Upon the trial of any complaint under the Act, proof of the sale of liquor shall be sufficient to sustain an averment of an unlawful sale, and proof of delivery shall be prima facie evidence of sale. § 17. A iMolation of any provision of the 1st section is made a mis- demeanor. The guilty party is to forfeit all liquors kept by him in violation of the section, and is to be further punished by a fine of $50 for the first offence ; for the sec- ond, by a fine of $100 and thirty days' imprisonment ; for the third and every subse- quent offence, by a fine not less than |100, nor more than $250, and by imprisonment for not less than three, nor more than six months. The defendant is likewise to pay all costs and. fees provided in the Act; and in default of payment of any such fine, costs, and fees, or any part thereof, the defendant is to be committed until the same are paid ' not less than one day per dollar of the amount unpaid.' § 4. . . . " The prohibitory clause itself, upon which these proceedings are founded, consti- tutes the 1st section. Omitting certain exceptions from the prohibition, which will be afterwards noticed, it provides that intoxicating liquor shall not be sold, or kept for sale, or kept with intent to be sold, by any person, in any place whatsoever ; that it shall not he given away, nor be kept with intent to be given away, in any place what- soever, except in a dwelling-house, in no part of which any tavern, store, grocery, shop, boarding-house or victualling-house, or room for gambling, dancing, or other public amusement or recreation of any kind is kept ; that it shall not be kept or deposited in CHAP, v.] WYNEHAMER V. THE PEOPLE. 717 Buffalo, wilfully and unlawfully and contrary to the form of the stat- ute, sold to persons unauthorized by law to sell intoxicating liquor to the jury unknown, intoxicating liquor, to wit, a gill each of rum, brandy, gin, wine, whiskey, and strong beer, without having filed in the office of the clerk of the county of Erie any undertaking approved by the county judge of that county, according to the provisions of the 2d section of the Act. It was further alleged in each count of the indict- ment that the liquor so sold was not alcohol manufactured by the defendant, or pure wine manufactured by him from grapes grown by himself; and that the sale of the liquor was not authorized, nor was any right to sell the same given by any law or treaty of the United States. The defendant pleaded not guilty ; and the issues were tried in the court of general sessions by a common-law jury duly empan- elled. On the trial the counsel for the people gave evidence tending to prove that after the 4th day of July, 1855, and before the finding of the bill of indictment, the defendant on several occasions had sold and delivered to different persons at his bar, in Buffalo, brandy-, in quan- tities less than a pint, which was drank on his premises. When the people rested, the counsel for the defendant requested the court to dis- charge the defendant, or to direct the jury to render a verdict of not any place whatsoever, except in such a dwelling-house as is above described, or for sacramental purposes in a church or place of worship ; or in a place where either some chemical, or mechanical, or medicinal art, requiring the use of liquor, is carried on as a regular branch of business, or while in actual transportation from one place to an- other, or stored in a warehouse prior to its reaching the place of its destination. By au exception in this same section, liquor may be given away as a medicine by physicians pursuing the practice of medicine as a business, or for sacramental purposes. The sec- tion concludes with a provision that it shall not apply to liquor, the right to sell which in this State is given by any law or treaty of the United States. " By §§ 2 and 3, persons answering the description, doing the acts, and taking the oaths prescribed therein, may be licensed to keep for sale, and sell intoxicating liquor and alcohol for mechanical, chemical, or medicinal purposes, and wine for sacramental use. By § 22, the Act is not to be construed to prevent the sale of cider in quantities not less than ten gallons ; nor to prevent the manufacturer of alcohol, or of pure wine from grapes grown by him, from keeping or from selling such alcohol or wine, nor the importer of foreign liqnor from keeping or selling the same in the original packages to any person authorized by the Act to sell such liquors ; nor to prohibit the manu- facture or keeping for sale, nor the selling burning fluids of any kind, perfumery, essences, drugs, varnLiihes, nor any other article which may be composed in part of alcohol or other spirituous liquors, if not adapted to use as a beverage, or in evasion of this Act. " The foregoing clauses contain, in substance, the prohibition of the Act, with the exceptions which qualify its effect. " Two other provisions are necessary to be quoted, as they bear upon the rights which the owner of liqnor has in it, and the modes in which he may assert those rights. The first is at the close of § 16, and declares ' that no person shall maintain au action to recover the value or possession of any intoxicating liquor sold or kept by him, which shall be purchased, taken, detained, or injured by any other person, unless he shall prove that such liquor was sold according to the provisions of the Act, or was law- fully kept and owned by him.' The other clause is at the end of § 25, and provides that ' all liquor kept in violation of any provision of the Act shall he deemed and is hereby declared to be a public nuisance.'" — Ed. 718 WYNEHAMEE V. THE PEOPLE. [CHAP. V. guilty, on the following grounds, viz.; 1. That it was not shown that any offen(!e had been committed by the defendant ; 2. That it did not appear but that the liquor alleged to have been sold was liquor, the right to sell which was given by laws or treaties of the United States, nor but that it was imported by defendant from foreign countries in pursuance of the United States laws ; 3. That the 1st and 4th sections of the aforesaid Act were respeetivelj- in violation of the constitutions of the United States and of this State, and void ; 4. That the said Act was unauthorized by and in conflict with the laws and treaties of the United States and the Constitution of thi* State, and therefore void ; 6. That it was not shown but that the liquor alleged to have been sold by the defendant was authorized to be sold by the Act of the Legislature above referred to. The court overruled each of the objections, and decided that the case must be submitted to the jury, and the counsel for the defendant excepted. Thereupon the counsel for the defendant offered to prove that the liquor alleged to have been sold was imported into this State from a foreign country, under and in pursuance of the revenue laws of the United States, and that the legal duties thereon were paid ; that the defendant purchased such liquor from the import- ers in the package in which it was imported ; and that it was drawn from such package and sold to the persons and at the times proved bj- the witnesses for the prosecution. The counsel for the people admitted the truth of the facts so offered to be proved, but objected to their admissibility as evidence, on the ground that they were irrelevant and immaterial. The court so held and excluded the evidence, and the defendant's counsel excepted. The counsel for the defendant also offered to prove that the liquor sold by the defendant was owned and possessed by him previous to and on the 3d of Julj', 1855 ; the counsel for the people admitted the fact to be so, but objected to it as evi- dence on the ground that it was immaterial. The objection was sus- tained, and the evidence excluded, and the defendant's counsel excepted. At the close of the evidence the counsel for the defendant requested the court to direct tlie jury to acquit the defendant, on the grounds stated at the close of the evidence for the prosecution. The court declined and the defendant's counsel excepted. The counsel for the defendant also requested the court to charge the jury that the people must prove that the liquor sold by the defendant was intoxicating ; the court as to this request charged, that if it was proved that the defend- ant sold brandy-, this was intoxicating liquor within the meaning of the Act ; and the defendant's counsel again excepted. The jury found the defendant guilty ; and the court sentenced him to pay a fine of fifty dollars, and to be committed until the same was paid. The judgment was aflBrraed by the Supreme Court sitting in the eighth district. See 20 Barbour, 567. The defendant sued out a writ of error. Toynbee, the defendant in the case secondly above entitled, was, on the 17th of July, 1855, arrested by Mathews, a police ofBcer of the city of Brooklyn, and brought before a police justice of that city, with- CHAP, v.] WYNEHAMEK V. THE PEOPLE. 719 out any precept for his arrest having been issued. When he brought him before the justice, Mathews made a complaint in writing, verified bj' his oath, which stated that on the da^- of the arrest the complainant saw the defendant at a place which was specified, in Brookl^-n, sell and keep for sale, and have in his possession, with intent to sell, intoxicat- ing liquors, to wit, brandy* and champagne ; that the complainant saw the defendant engaged in selling liquor, to wit, brandj', in violation of the Act for the prevention of intemperance, pauperism, and crime ; that the offence consisted in selling one glass of brandy' and one bottle of champagne ; that the complainant had arrested the defendant and brought him before the justice to answer the charge, and to be dealt with according to law ; and that at the time and place of the offence, he, the complainant, seized the said brandj' and champagne, with' the bottles in which they were contained, and had stored them in a con- venient place, to be disposed of as provided by the aforesaid Act. The defendant.asked to be discharged, on the ground that the Act was unconstitutional, and on the further ground that the complaint did not set forth facts sufficient to constitute an offence by the defendant. His application was denied. He then objected to being tried by a court of special sessions, and oJtpred to give bail for his appearance at the next court having criminal jurisdiction. The justice overruled the objection, refused to take bail, and required the defendant to plead to the charge. The defendant pleaded not guiltj', and thereupon the complainant was sworn and testified that the defendant kept a hotel in Brooklyn, in the basement of which he kept a bar-room ; that on the 17th of July, he, the witness, saw the defendant sell a glass of brand}' and a bottle of champagne, which were intoxicating liquors, and that the defendant kept for sale in his bar-room such liquors. He further testified that the champagne was imported liquor ; and that he, the witness, on the occasion aforesaid, seized and took into his possession the bottle of brandy from which the defendant sold, and the bottle of champagne which he had sold and was in the act of delivering. The foregoing is the substance of all the evidence. The court found the defendant guilty of selling and having in his possession with intent to sell, in- toxicating liquors, as charged in the complaint, adjudged him gniltj' of a misdemeanor, and sentenced him to pay a fine of $50, and $5.87 costs of the proceedings, and that he be imprisoned until the same were paid, not exceeding fifty-six days. The court further adjudged that the liquor seized be forfeited, and that a warrant for its destruction be issued. On appeal by the defendant, the judgment was reversed by the Supreme Court at a general term in the second district. See 20 Barb. 168. The people appealed to this court. . . . A. J. Parker, for the plaintiff in error, in the case first entitled. A. Sawin, for the people. tT. M. Van Oott, for the people, in the case secondly entitled. John A. XiOtt, for the defendant. . . . Hubbard, J. The first ground assumed by the appellant's [Toj'n- 720 WYNEHAMER V. THE PEOPLE. [CHAP. V. bee's] counsel on the argument was, that the sale of imported liquor in a less quantity than the package of importation was contrary to the provisions of the Act under which the defendant was convicted. This is clearly a tenable position. In the view which I take of the law in this case, it is not very essential that this proposition be considered at much length. . . . The Act in question, by the exception alluded to, expresslj' refrains from all interference with the operation of the laws of Congress or with the right of sale of the importer as above stated, and hence is not obnoxious to the objection I am consideritg.^ The next question to be considered relates to the prohibitory char- acter of the law, and its vindicator3' provisions as it respects existing rights of property in liquor at the time the Act took effect. This ia purely a question of legislative power, under the fundamental law. It is needless to say that the courts have no concern with the wisdom or expediency of the enactment to accomplish the beneficent ends indi- cated by the title. The policj' of this government, from its foundation, certainly vindicates the political necessitj- and economy of stringent laws circumscribing the sale of spirituous liquors. ^ entertain no doubt of the constitutional competency of the legislature to prohibit entirely the commerce, within the State, in liquor as a beverage, by laws pro- spective in their operation! If, in the judgment of the legislature, the public welfare required it, the future production, manufacture, or acqui- sition of liquor might be prohibitedj The sovereign power of the State in all matters pertaining to the public good, the health, good order, and morals of the people, is omnipotent. Laws intended to promote the welfare of society are within legislative discretion, and cannot be the just subject of judicial animadversion, except when it is seen that the constitutional guarantees of private property have been invadedJ The police power is, of necessitj-, despotic in its character, commen- surate with the sovereignty of the State; and individual rights of property, bejond the express constitutional limits, must yield to its exercise. And in emergencies, it may be exercised to the destruction of property, without compensation to the owner, and even without the formalit}- of a legal investigationV It is upon this principle that health and quarantine laws are established; that a building is blown up to arrest a conflagration in a populous town ; that the public market is purged of infectious articles ; that merchandise on ship-board, infested with pestilence, is cast into the deep, and public nuisances are abated. It is the public exigency which demands the summary destruction, upon the maxim that the safety of society is the paramount law. It is the application of the personal right or principle of self-preservation to the body politic. I know of no limits to the exercise of the police power vested in the legislature, except the restrictions contained in the written constitution. Under our system of government, with co-or- 1 See Brown v. Md., 12 Wheat. 419. — Ed. CHAP, v.] WYNEHAMEK V. THE PEOPLE. 721 dinate branches, each independent within its sphere, and all deriving their powers from a common source, the fundamental law, one cannot exercise a supremacy over the other, except as it finds its warrant for it in that law. The judiciarj- possesses no legitimate authority- over Acts of the Legislature, aside from the constitutional grant ; and even this authority is exercised in an indirect manner, when its i)0wers are appealed to, to carry a statutory law into effect ; and then only as it respects the individual rights of property or person. It is said that this idea of the omnipotency of the legislature, aside from the express constitutional restrictions, is a fallacy. It is con- ceded that all power emanates from the people, and that the written Constitution clothes the legislature with all the power it possesses. But the grant of power in that instrument is general, of all the legis- lative power of the State ; what this is preciselj', is not and cannot well be defined. Aside from the express limitations, it is believed to embrace all, the common-law power which the legislature would have possessed had the fundamental law remained, as in England, a part of the unwritten law of the State. This is by no means an alarming propo- sition. The Declaration of Eights, forming the guarantee of personal liberty and property in the first article of the Constitution, when con- strued according to its full spirit and intent, is quite ample to protect the citizen against the unauthorized encroachments of the legislature ; to protect against aU sumptuary laws and laws of kindred character, which have not the public good for their object. I am opposed to the judiciary attempting to set bounds to legislative authority, or declaring a statute invalid upon any fanciful theory' of higher law or first prin- ciples of natural right outside the Constitution. If the courts may imply limitation, there is no bound to implication except judicial dis- cretion, which must place the courts above the legislature and also the. Constitution itself. This is hostile to the theory of the government. The Constitution is the only standard for the courts to determine the question of statutory validity. /There is no constitutional restriction upon the power of the legisla- ture in the regulation of the sale or trafBc in intoxicating drinks, whether affecting existing rights of propertj- in liquor or not. As a scheme of regulation, the degree of the limitation of the sale or traflSc is a matter of legislative discretion. The fault of the present law is, that it does not profess to be a scheme of regulation. There is no attempted discrimination between liquor owned at the time the law took eflTeet and that acquired afterwards. I have reflected with much atten- tion to see whether the courts could not make the discrimination, for instance, as a question of fact, to be ascertained in a given case, but I have encountered the insurmountable diflttculty, that the legislature plainly intended that there should be no such distinction. No defence on a trial could be admitted on such ground, for the reason that it would be against the manifest policyof the Act. It is the intent of the statute alone which the courts are authorized to execute. VOL. I — 46 722 WYNEHAMER V. THE PEOPLE. [CHAP. V. The prohibitory feature of the law must, therefore, be regarded as extending to all liquor in the State at the time the Act took effect. In this aspect I will, in a few words, give mj- views of its unconstitutioh- alitj- as it respects vested rights of propertj- in liquor, under the organic law, which forbids the citizen being deprived of his property without due process of law.i That liquor is recognized by the law as propertj-, that the Constitution knows no distinction in its guarantees of the rights of property cf all kinds, that the constitutionality of the law is to be tested the same as though it related to some other and perhaps better species of property, is not questioned. The Constitution sur- rounds liquor, as propertj', with the same inviolability as anj- other species of property. There can be no room, I think, for difference of opinion as to the meaning of the phrase, "due process of law," as used in the Constitutiori. It means an ordinary judicial proceeding. In a criminal case, an arraignment, formal complaint, confronting of wit- nesses, a trial, and regular conviction and judgment. When a for- feiture of property is made a part of the punishment, as in this case, the judgment embracing it would, in its e&ect, deprive the offender of his property in the constitutional method. I think it competent for the legislature to declare a forfeiture of liquor, which an offender may have in possession, as a mode of punishment ; and if the law in question was in other respects constitutional, I should uphold the judgment of for- feiture in this case as entirely proper. But the portion of the law which authorizes the seizure and desti'uction of liquor, where the pro- secution or conviction of the owner is not contemplated, I should not \ hesitate to pronounce void, as property is thus destroj-ed or the citizen deprived of it without process of law. It is not pretended, nor can it be, that property which is not per se a nuisance can be annihilated by force of a statute alone, or by proceeding in rem for the punishment of a personal offence. Liquor is not a nuisance per se, nor can it be made so by a simple legislative declaration. It 'does not stand in the cate- gorj- of common nuisances which of themselves endanger the welfare or safety of soeietj'. It is its use and abuse as a beverage which gives it its offensive character. Otherwise it is entirely inoffensive. In my judgment, therefore, it cannot be confiscated to prevent its misuse, except through a prosecution against the owner in personam^ But it is said that this law does not assume to deprive any one of his property in liquor ; that the owner is allowed to retain the unmolested custodj' and personal use of it, according to his pleasure. It is true that the owner may not be molested in this enjoyment, provided he keeps it in his dwelling-house, if fortunate enough to possess a domicil. I apprehend that by a fair construction of the law he is forbidden, under a severe penaltj', from keeping it elsewhere, except for mechan- ical and other specified uses, although innocent of any intent to sell. I have examined the 1st section of the law with care, to see if it could not be construed in such manner as to make the keeping in any place except a dwelling-house, criminal only when accompanied CHAP, v.] WYNEHAMER V. THE PEOPLE. 723 with an intent to sell. But the section cannot be so construed. The language is too clear to admit of a doubt as to the intention of the legislature. The keeping or deposit in any place, except in a dwelling-house, or place where some trade or business is carried on requiring its use, is prohibited, and by the 4th section of the Act such keeping or deposit is a crime. This, certainly, is a most extraordinary provision, which must have the effect to render a person a criminal who was so unfortunate as to have a quantity of liquor on hand in a for- bidden place at the time the law took effect, although he had no intent to violate the laV by selling. A person thus circumstanced would have but one of two alternatives to avoid criminality, either just before the law took effect to remove the liquor to a dwelling-house, or to a shop for mechanical and other prescribed uses, or destroy it with his own hand. I can scarcely credit that the legislature designed the law to have this effect ; but no other construction can be put upon the lan- guage of the 1st section of the law, and we are bound to suppose, judi- cially-, that the legislature intended what their words import. The law does not even countenance the exportation of the liquor after it took effect. The plain design of the law seems to have been to cut off the liquor itself, to insure its destruction, by circumscribing the keeping of it, and authorizing its seizure, if kept in a forbidden place, or with a criminal intent to sell. The entire right of sale, within the State at least, is prohibited, and in this, in my judgment, consists the error of the law as it respects liquor owned when the law went into operation. If there had been any right of sale within the State pre- served, for instance, to a licensed vendor, although of minor importance, it would have been sufficient, perhaps, to have impressed the law with a character of i-egulation, and saved its validity. JBut the abolition of all right' of sale in the State is eqiuival6nt to and is a substantial deprivation of the owner of his property^ The right of sale is of the very essence of property in anj' article olf merchandise ; it is its chief characteristic ; take away its vendible quality and the article is practically destroyed. As applied to merchandise of any description, this effect can be judicially seen. Even if the law al- lowed exportation, that would be of such minor importance as not to save the law from the charge of effectually depriving the owner of his propert3' in the liquor. It is but of trifling value after the entire domes- tic market is closed against it. jl am unable, therefore, to avoid the conclusion that the prohibition in the 1st section of the law is invalid, inasmuch as it makes no discrimina- tion, nor allows the courts to make any, but extends to all liquor, irrespective of the time of its acquisition ; and that, b}' closing the domestic or State market, it in effect substantially deprives the owner of liquor, acquired before the law took effect, of his vested right of prop- erty therein, without due process of law.J At the trial before the police justice, the defendant 'offered bail for his appearance before a higher court having criminal jurisdiction. Ij^l was an error for the court to refuse to receive it. I am well satisfied 724 WYNEHAMEE V. THE PEOPLE. [CHAP. T. that the defendant had a constitutional right to be tried bj- a common- law jurj- of twelve men, and that to this end he should have been allowed to give bail to appear before a tribunal where such a jury could be obtained. . . . I am of the opinion, therefore, that the judgment of the Supreme Court ought to be affirmed. . . . [Other opinions are reported, by Comstock, A. S. Johnson, Selden, Mitchell, and T. A. Johnson, JJ., and a brief summaiy of an opinion by Denio, C. J. The reporter then add^the following 'statement :] On deciding these cases, the court passed upon and affliraed the fol- lowing propositions : 1. That the prohibitor}- Act, in its operation upon property- in in- toxicating liquors existing in the hands of any person within this State when the Act took eflfect, is a violation of the provision in the Consti- tution of this State whicli declares that no person shall be " deprived of life, liberty, or propert3-, without due process of law." That the various provisions, prohibitions, and penalties contained in the Act do substantiall}' destroy the property in such liquors in violation of the terms and spirit of the constitutional provision. 2. That inasmuch as the Act does not discriminate between such liquors existing when it took effect as a law, and such as might there- after be acquired by importation or raanufaetare, and does not counte- nance or warrant sxiy defence based npon the distinction referred to, it cannot be sustained in respect to any such liquor, whether existing at the time the Act took effect or acquired subsequently ; although all the judges were of opinion that it would be competent for the legisla- ture to pass such an Act as the one under consideration (except as to some of the forms of proceeding to enforce it), provided such Act should be plainly and distinctly prospective as to the property on which it should operate. 3. That the criminal proceeding in a court of special sessions authorized by the said Act is unconstitutional and void because the accused is thereby deprived of the right of trial by jury, guaranteed by the Constitution. Denio, C. J., A. S. Johnson, Comstock, Selden, and Hubbaed, Js., concurred in the foregoing propositions. Mitchell, J., dissented from the first and second, and concurred in the third. T. A. Johnson and Wright, Js., dissented from all of them. All the judges, except T. A. Johnson, "Wright, and Mitchell, were in favor of reversing the judgment of the Supreme Court, and of the court of general sessions in the case of Wynehamer. All the judges, except T. A. Johnson and Wright, were in favor of affirming the judgment of the Supreme Court, which reversed that of the court of special sessions in the case of Toynbee. Judgments accordingly.^ > Compare State v. Gilman, 33 W. Va. 146 (1889). — Ed. CHAP. T.] BEETHOLF V. O'KEILLY. 725 BERTHOLF v. O'REILLY. New York Codrt of Appeals. 1878. [74 N. Y. 509.] Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 8 Hiin, 16.) The nature of the action and the facts are set forth suflSciently in the opinion. Lewis JE. Carr, for appellant. W. J. Groo, for respondent. Andrews, J. . . . This action is brought by the plaintiff against the defendant, as the landlord of hotel premises, let with knowledge that intoxicating liquors were to be sold therein by the lessee, to recover the value of a horse owned by the plaintiff, which died in consequence of having been overdriven by the plaintiffs son wbile in a state of intoxi- cation, produced in part by liquor sold him by the lessee at his bar on the leased premises. . . . All the elements of the landlord's liability under the Act [the Civil Damage Act of April 29, 1873] exist in this case, viz. : the leasing of premises with knowledge that intoxicating liquors were to be sold thereon ; the sale by the tenant, producing intoxication ; and the act of the intoxicated person, causing injury to the propertj- of the plaintiff. The question we are now to determine is whether the legislature has the power to create a cause of action for damages, in favor of a person injured in person or property by the act of an intoxicated person, against the owner of real property, whose only connection with the injury is that he leased the premises where the liquor causing the intoxication was sold or given away, with knowledge that intoxicating liquors were to be sold thereon. To realize the full force of this inquiry it is to be observed that the leasing of premises to be used as a place for the sale of liquors is a law- ful act, not prohibited by this or any other statute. The liability of the landlord is not made to depend upon the nature of the act of the tenant, but exists irrespective of the fact whether the-sale or giving away of the liquor was lawful or unlawful, that is, whether it was authorized by the license law of the State, or was made in violation of that law. Nor does the liability depend upon any question of negligence of the landlord in the selection of the tenant, or of the tenant in selling the liquor. Although the person to whom liquor is sold is at the time apparently a man of sober habits and, so far as the vendor knows, one whose appe- tite for strong drink is habitually controlled by his reason and judgment, yet if it turns out that the liquor sold causes or contributes to the intoxi- cation of the person to whom the sale or gift is made, under the influence of which he commits an injury to person or property', the seller and his 726 BEETHOLF V. O'EEILLY. [CHAP. V. landlord are by the Act made jointly and" severally responsible. The element of care or diligence on the part of the seller or landlord does not enter into the question of liability. The statute imposes upon the dealer and the landlord the risk of any injury which may be caused by the traffic. It cannot be denied that the liability sought to be imposed by the Act is of a very sweeping character and may, in man3- cases, entail severe peeuniarj* liability, and its language m&y include cases not within the real purpose of the enactment. The owner of a building who lets it to be occupied for the sale of genei'al merchandise, including wines and liquors, may, under the Act, life made liable for the acts of an intoxicated person, where his onlj- fault is that he leased the premises for a general business, including the sale of intoxicating liquors, in the same way as other merchandise. The liability is not restricted to the results of intoxication from liquors sold or given away to be drank on the premises of the seller. There is no way by which the owner of real property can escape possible liability for the results of intoxication where he leases or permits the occupation of his premises, with the knowledge that the business of the sale of liquors is to be carried on on the premises, whether alone or in connection with other merchandise, or whether they are to be sold to be drank on the premises or to be car- ried away and used elsewhere. His onlj- absolute protection against the liability imposed by the Act is to be found in not using or permitting the premises to be used for the sale of intoxicating liquors. The question' whether the Act under consideration is a valid exercise of legislative power is to be determined solel}'' bj' reference to constitu- tional restraints and prohibitions. The legislative power has no other limitation. . . . There are two general grounds upon which the Act in question is claimed to be unconstitutional ; first, that it operates to restrain the lawful use of real property- by the owner, inasmuch as it attaches to the particular use a liability, which substantially amounts to a prohibition of such use, and, as to the seller, imposes a pecuniary responsibilitj', which interferes with the traffic in intoxicating liquors, although the business is authorized bj' law ; and second, that it creates a right of action unknown to the common law, and subjects the propertj' of one person to be taken in satisfaction of injuries sustained b^' another remotely resulting from an act of the person charged, which act may be neither n^ligent or wrongful, but may be, in all respects, in conformity with law.J The Act, it is said, in effect authorizes the taking of private property^ithout "due process of law," contrary to article 1, section 6, of the Constitution, and is also a violation of the first section of the same article, which declares that " no member of this State shall be disfranchised, or deprived of anj- of the rights or privileges secured to any of the citizens thereof, unless by the law of the land or the judgment of his peers." If the Act is "due process of law," within the sixth section of the first article, it is manifest that it is valid within the other section to which reference is made. CHAP, v.] BEETHOLF V. O'KEILLY. 727 The right of the State to regulate the traffic in intoxicating liquors, within its limits, has been exercised from the foundation of the govern- ment, and is not open to question. The State may prescribe the persons by whom and the conditions under which the traffic may be carried on. It may impose upon those who act under its license such liabilities and penalties as in its judgment are proper to secure society against the dangers of the traffic and individuals against injuries committed by intoxicated persons under the influence of or resulting from their intoxication/ The licensee, by accepting a license and acquiring thereby a privilege from the State to engage in the traffic, a privilege confined to those who are licensees and withheld from all other citizens, takes it subject to such conditions as the legislature may attach to its exerci^^ He con- sents to be bound by the conditions when he accepts the license, and the State is the sole judge of the reasonableness of tlie conditions im- posed. And the power of the legislature, as a part of the excise system, to impose the liabilities, imposed by the Act in question, upon licensed dealers, as a condition of granting the license, cannot, we think, be questionedL/. . . The Act of 1873 cannot, however, b6 sustained in all its aspects upon the theory that the liability imposed by the Act is a condition of a privilege granted by the State. This cannot be affirmed in respect of the liability of the landlord, whose right to lease his property belongs to him, as an incident to ownership. The responsibilitj' imposed is not confined to cases of unlawful sales of liquors or to sales made by licensed vendors. Any person selling or giving awaj- liquor, which causes intoxi- cation and consequent injury, is made liable under the Act. The broad question is presented, whether the Act transcends the limits of legislative power, in subjecting a landlord to liability, under- the circumstances mentioned in the Act. Does the Act, in effect, deprive him of his property without "due process of law,'' in the sense of the Constitution. If the Act can be sustained as to the landlord, it is clearly valid as to all other persons ; and its validity as to the landlord is the question directly presented in this casei^ We need not enter into any elaborate discussion of the meaning of the words "due process of law." This has been done in numerous judicial decisions. They are held, under the liberal interpretation given to them, to protect the life, liberty and property of the citizens against acts of mere arbitrary persons, in any department of the government. Denio, J., in Westervelt v. Gregg, 12 N. Y. 212. These are the funda- mental civil rights, for the security of which societj' is organized, and all acts of legislation which contravene them are within the prohibition of the constitutional guarantee. In judicial proceedings, due process of law requires notice, hearing and judgment ; in legislative proceedings, conformity to the settled maxims of free governments, observance of constitutional restraints and requirements, and an omission to exercise powers appertaining to the judicial or executive departments. It is as 728 BEETHOLF V. O'KEILLY. [CHAP. V. difficult, as it would be unwise to attempt an exact definition of their scope. Their application, in a particular case, must be determined when the question arises, and, in the absence of exact precedents, courts must determine the question, upon a consideration of the general scope of legislative power, the practice of governments, and in view of the conceded principle that individual rights may be curtailed and limited to secure the public welfare and the equal rights of all. . . . If the legislature was impotent to deal with the traffic in intoxica- ting liquors or powerless to restrain or regulate it in the interest of the community at large, because legislatJbn on the subject might, to some extent, interfere witli the use of property or the prosecution of private business, the legislature would be shorn of one of its most usual and important functions. But, as we have said, the right of the legis- lature to regulate the traffic is shown b3- the uniform practice of the government. It may not only regulate, but it may prohibit it. This was declared after solemn argument and mature deliberation, in one of the propositions adopted bj- this court in Wynehamer v. The People, subject only to the qualification that the prohibition shall not interfere with vested rights of propert\-. The same principle was declared in the case of Metropolitan Board of Excise v. Barrie, 34 N. Y. 657 ; and that the legislative power extends to the entire prohibition of the traffic has been recently' recognized by the Supreme Court of the United States. It is quite evident that the Act of 1873 may seriously interfere with the profitable use of real property- bj- the owner. This is especiallj' true with respect to a building erected to be occupied as an inn or hotel, and specially adapted to that use, where the rental value may largely depend upon the right of the tenant to sell intoxicating liquors. The owner of such a building maj- well hesitate to lease his propertj', when, b}- so doing, he subjects himself to the onerous liability imposed by the Act. (^he Act, in this way, indireotlj- operates to restrain the absolute freedom of the owner in the use of his propertj', and maj- justlj' be said to impair its value. But this is not a taking of his propertj-, within the meaning of the Constitution"^ He is not deprived either of the title or the pos- session]}, The use of his property for anj^ other lawful purpose is unre- stricted, and he maj' let or use it as a place for the sale of liquors, subject to the liabilit}' \^hich the Act impose^. The objection we are now con- sidering would apply with greater force to a statute prohibiting, under any circumstances, the traffic in intoxicating liquors, and as such a statute must be conceded to be within the legislative power, and would not interfere with any vested rights of the owner of real property, although absolutelj- preventing the particular use, a fortiori the Act in question does not operate as an unlawful restraint upon the use of property. ^hat a statute impairs the value of property does not make it uncon- straitional. All property' is held subject to the power of the State to regulate or control its use, to secure the general safety- and the public CHAP, v.] ^iERTHOLF V. O'BEILLY. 729 welfare. . . . [Here follow quotations from Com. v. Alger, 7 Cush. 84, and Thorpe v. £. & R. R. R. Co., 27 Vt. 140, and statements of The Slaughter-House Cases, 16 Wall. 36, and Munn v. III., 94 U. S. 113.] The right of the legislature to control the use and traffic in intoxi- cating liquors being established, its authority to impose liabilities upon those who exercise tiie traffic, or who sell or give away intoxicating drinks, for consequential injuries to third persons, follows as a necessary incident]? And the Act of 1873 is not invalid because it creates a right of action and imposes a liability not known to the common law. There is no such limit to legislative power. The legislature may alter or repeal the common law. It may create new offences, enlarge the scope of civil remedies, and fasten responsibilitj' for injuries upon persons against whom the common law gives no remedy. We do not mean that the legislature may impose upon one man liability for an injury suffered by another, with which he had no connection. But it may change the rule of the common law, which looks only to the proximate cause of the mischief, in attaching legal responsibility, and allow a recovery to be had against those whose acts contributed, although remotely, to produce it. This is what the legislature has done in the Act of 1873. That there is or may be a relation, in the nature of cause and effect, between the act of selling or giving away intoxicating liquors, and the injuries for which a remedy is given, is apparent, and upon this relation the legislature has proceeded in enacting the la,w in question. It is an extension, by the legislature, of the principle expressed in the maxim, Sic utere tuo ut alienum non Icedas, to cases to which it had not before been applied, and the propriety of such an application is a legislative and not a judicial question. It is said that the statute imposes a liability for the consequences of a lawful act. But the legislature, having control of the subject of the traffic in and use of intoxicating liquors, may make such regulations to prevent the public evils and private injuries resulting from intoxication as in its judgment are calculated to accomplish this end. It maj^ pro- hibit the selling or giving away of liquors, or it may, while not inter- fering with the liberty of sale or use, guard against the dangers of an indiscriminate traffic, and induce caution, on the part of those who engage in the business, by subjecting them to liabilities for consequential injuries. The Act of 1873 does not deprive the seller, who is made liable under the Act, of his property, without due process of law. It authorizes it to be appropriated, in the due course of judicial proceedings, for the satisfaction of injuries resulting from intoxication caused by his act. The legislature has said that the seller maj' be treated as the author of the injuries, and we think this was within the legislative power. The liability imposed upon the landlord for the acts of the tenant is not a new principle in legislation. \His liability only arises when he has consented that the premises may be used as a place for the sale of liquors^ He selects the tenant, and he maj', without violating any con- 730 GIBBONS V. OGDEN.pf,, [CHAP. V. stitutional provision, be made responsible for the tenant's acts connected with the use of the leased property. In Dobbins v. The United States, recentlj- decided by the United States Supreme Court, a distillery, with the real and personal property used in connection therewith, had been seized and condemned to be forfeited, for the violation, by a lessee, of certain provisions of the Act of Congress, regulating the business of distilling. No fraud was imputed to the owner of the premises, and he was not charged with any complicity with the tenant in violating the law. The owner objected that his property could not be forfeited for the acts of the tenant, committed without^his knowledge or consent. But the court affirmed the decree of condemnation ; and, in his opinion, Clifford, J., says: "The legal conclusion must be that the unlawful acts of the distiller bind the owner of the propertj', in respect to the management of the same, as much as if thej- were committed by the owner himself. Power to that effect the law vests in him by virtue of his lease ; and, if he abuses his trust, it is a matter to be settled between him and his lessor ; but the acts of violation as to the penal consequences to the property are to be considered just the same as if they were the acts of the owner." Our conclusion is that the Act of 1873 is a constitutional enactment. It is doubtless an extreme exercise of legislative power, but we cannot saj' that it violates any express or implied prohibition of the Constitution. There are some subordinate questions presented, as grounds for the reversal of the judgment. Thej- were considered by the General Term, and we concur in its conclusions in respect to them. The judgment must be affirmed, with costs. All concur. Judgment affirmed} In Gibbons v. Ogden, 9 Wheat. 1, 209 (1824), Marshall, C. J., for the court, said : " Since, however, in exercising the power of regulating their own purely internal affairs, whether of trading or police, the States may sometimes enact laws, the validity of which depends on their interfering with, and being contrarj' to, an Act of Congress passed in pursuance of the Constitution, the court will enter upon the inquiry, whether the laws of New York, as expounded by the highest tribunal of that State, have, in their application to this case, come into collision with an Act of Co.ngress, and deprived a citizen of a right to which that Act entitles him. Should this collision exist, it will be immaterial whether those laws were passed in virtue of a concurrent power ' to regulate commerce with foreign nations and among the several States,' or, in virtue of a power to regulate their domestic trade and police. In one case and the other, the acts of New York must yield to the law of Congress ; and the decision sustaining the privilege thej' confer, against a right given by a law of the Union, must be erroneous. " This opinion has been frequently expressed in this court, and is 1 Compare Howes v. Maxwdl, 157 Mass. 333 — Ed. CHAP, v.] ' UNITED STATES V. HOLLIDAY. 731 founded as well on the nature of the government as on the words of the Constitution. In argument, however, it has been contended that, if a law passed by a State, in the exercise of its acknowledged sovereignt}', comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject, and each other, like equal oppos- ing powers. " But the framers of our Constitution foresaw this state of things, and provided for it by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of any Act, inconsist- ent with the Constitution, is produced by the declaration that the Con- stitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the State legislatures as do not transcend their pow- ers, but, though enacted in the execution of acknowledged State powers, interfere with, or are contrary -to the laws of Congress, made in pursu- ance of the Constitution, or some treaty made under the authority of the United States. In every such ease the Act of Congress, or the treatj-, is supreme ; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it." In U. S. v. Holliday, 3 Wall. 407, 416 (1865), it was a question whether an Act of Congress of 1862, forbidding the sale of intoxicating liquor to an Indian under the charge of an agent, anywhere in the United States, was valid. Miller, J., for the court, in sustaining the enactment, said : " We are not furnished with any argument by either of the defendants on this branch of the subject, and may not therefore be able to state with entire accuracy the position assumed. But we understand it to be substantially this : that so far as the Act is intended to operate as a police regulation to enforce good morals within the limits of a State of the Union, that power belongs exclusively to the State, and there is no warrant in the Constitution for its exercise by Congress. If it is an attempt to regulate commerce, then the commerce here regulated is a commerce wholly within the State, among its own inhiabitants or citi- zens, and is not within the powers conferred on Congress by the com- mercial clause. "The Act in question, although it may partake of some of the qualities of those acts passed by State legislatures, which have been referred to the police powers of the States, is, we think, still more clearly entitled to be called a regulation of commerce. 'Commerce,' says Chief Justice Marshall, in the opinion in Gibbons v. Ogden, to which we so often turn with profit when this clause of the Constitution is under consideration, ' commerce undoubtedly is traffic, but it is some- thing more : it is intercourse.' The law before us professes to regulate traffic and intercourse with the Indian tribes. It manifestly does both. It relates to buying and selling and exchanging commodities, which is the essence of all commerce, and it regulates the intercourse between the citizens of the United States and those tribes, which is another branch of commerce, and a very important one. 732 IN RE RAPIER. IN RE DUPR^ [CHAP. V. " If the Act under consideration is a regulation of commerce, as it undoubtedly is, does it regulate that kind of commerce which is placed within the control of Congress by the Constitution? The words of that instrument are : ' Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.' Commerce with foreign nations, without doubt, means com- merce between citizens of the United States and citizens or subjects of foreign governments, as individuals. And so commerce with the Indian tribes, means commerce with the individuals composing those tribes. The Act before us describes this precise kind of trafBc or commerce, and, therefore, comes within the terms of the constitutional provision. " Is there anything in the fact that this power is to be exercised within the limits of a State, which renders the Act regulating it unconstitutional ? "In the same opinion to which we have just before referred. Judge Marshall, in speaking of the power to regulate commerce with foreign States, says, ' The power does not stop at the jurisdictional limits of the several States. It would be a very useless power if it could not pass those lines.' ' If Congress has power to regulate it, that power must be exercised wherever the subject exists.' It follows from these propositions, which seem to be incontrovertible, that if commerce, or traffic, or intercourse, is carried on with an Indian tribe, or with a member of such tribe, it is subject to be regulated by Congress, although within the limits of a State. The locality of the traffic can have nothing to do with the power. The right to exercise it in refer- ence to any Indian tribe, or any person who is a member of such tribe, is absolute, without reference to the locality of the traffic, or the locality of the tribe, or of the member of the tribe with whom it is carried on. It is not, however, intended by these remarks to imply that this clause of the Constitution authorizes Congress to regulate any other commerce, originated and ended within the limits of a single State, than commerce with the Indian tribes." In ee RAPIEE, Petitioner. In re DUPRE, Petitionee. Supreme Court op the United States. 1892. [143 U. S. 110.] These were three applications to this court for leave to file peti- tions for writs of habeas corpus. Leave was granted, March 9, 1891, and the petitions were made returnable on the third Monday of the next April. They were duly returned, and were, on the 27th of April, assigned for argument at the present term. The prayer in each case was for a discharge from arrest for an alleged violation of the pro- visions of section 3894 of the Revised Statutes, as amended by the Act of September 19, 1890, 26 Stat. 465, c. 908, generally known as CHAP. V.J IN- KE RAPIER. IN RE DUPRI 733 the Anti-lottery Act, which is printed in the margin. [It is omitted here. J Rapier was arrested under an information in the District Court for the Southern District of Alabama. Dupr^ was arrested under two indictments in the Circuit Court for the Eastern District of Louisiana. The charge against Rapier, and against Dupre in one indictment, was the mailing of a newspaper containing an advertisement of the Louisiana Lottery, and in the other indictment against Diiprd was for the mailing of a letter concerning it. As a cause for the issue of the writ Rapier said, in his application : "Your petitioner avers that he is now in the custody of said marshal under or by color of the authority of the United States and in viola- tion of the Constitution of the United States. Your petitioner is advised that the pretended statute under which he is being prose- cuted and held is in violation of the Constitution of the United States, and that the said District Court is without jurisdiction in the premises." Dupr^ in No. 8 averred that he was "deprived of his liberty under and by color of the authority of the United States and of said court and in violation of the Constitution of the United States and of his rights as a citizen thereof, because he saj-s that he is advised and therefore avers that the statute of the United States under which he is held and being prosecuted upon said indictment is unconstitutional, null and void, and particularly obnoxious to and in violation of the First Amendment to said Constitution, which forbids Congress passing any law abridging the freedom of the press, and that therefore said Circuit Court is ^nd was without jurisdiction in the premises, and he is deprived of his liberty without authority of law." His petition in No. 9 contained substantially the same averment. Mr. Hannis Taylor, for Rapier. Mr. James C. Carter and Mr. Thomas Semmes, for Dupre. Mr. Attormy- General and Mr. Assist- ant Attorney-General Maury, for the United States. Mr. Chief Justice Fuller delivered the opinion of the court. We are constrained by the circumstances in which we find our- selves placed by the illness and death of Mr. Justice Bradley, to whom the preparation of the opinion in these cases was committed, to waive any elaboration of our views, and confine ourselves to the expression of the general grounds on which our decision proceeds. These are appUcations for discharge by writ of habeas corpus from arrest for alleged violations of an Act of Congress, approved Sep- tember 19, 1890, entitled " An Act to amend Certain Sections of the Revised Statutes relating to Lotteries, and for other Purposes." 26 Stat. 465, c. 908. The question for determination relates to the constitutionality of section 3894 of the Revised Statutes as amended by that Act. In JEx parte Jackson, 96 U. S. 727, it was held that the power vested 734 IN EE EAPIEK IN KE DUPE^. [cHAP. V. in Congress to establish post-offices and post-roads embraced the regu- lation of the entire postal system of the country-, and that under it Congress vasxy designate what n^aj' be carried in the mail and what excluded ; that in excluding vario\\s articles from the mails the object of Congress is not to interfere with the freedom of the press or with anj' other rights of the people, but to refuse the facilities for the dis- tribution of matter deemed injurious by Congress to the public morals ; and that the transportation in any other way of matters excluded from the mails would not be forbidden. Unless we are prepared to overrule that decision, it is decisive of the question l»efore us. It is argued that in Jackson's case it was not urged that Congress had no power to exclude lotterj' matter from the mails ; but it is con- ceded that the point of want of power was passed upon in the opinion. This wa|S necessarily so, for the real question was the existence of the power and not the defective exercise of it. And it is a mistake to suppose that the conclusion there expressed was not arrived at without deliberate consideration. It is insisted that the express powers of Congress are limited in their exercise to the objects for which they were intrusted, and that in order to justifj- Congress in exercising any incidental or implied powei'S to carry into effect its express author- ity, it must appear that there is some relation between the means employed and the legitimate end. This is true, but while the legiti- mate end of the exercise of the power in question is to furnish mail facilities for the people of the United States, it is also true that mail facilities are not required to be furnished for every purpose. The States before the Union was formed could establish post-offices and post-roads, and in doing so could bring into play the police power in the protection of their citizens from the use of the means so pro- vided for purposes supposed to- exert a demoralizing influence upon the people. When the power to establish post-offices and post-roads was surrendered to the Congress it was as a complete power, and the grant carried with it the right to exercise all the powers which made that power effective. It is not necessary that Congress should have the power to deal with crime or immorality within the States in order to maintain that it possesses the power to forbid the use of the mails in aid of the perpetration of crime or iramoralitjrj The argument that there is a distinction between mala prohibita and mala in se, and that Congress might forbid the use of the mails in promotion of such acts as are universallj- regarded as mala in se, in- cluding all such crimes as murder, arson, burglary, etc., and the offence of circulating obscene books and papers, but cannot do so in respect of other matters which it might regard as criminal or immoral, but which it has no power itself to prohibit, involves a concession which is fatal to the contention of petitioners, since it would be for Congress to determine what are within and what without the rule ; but we think there is no room for such a distinction here, and that it must be left to Congress in the exercise of a sound discretion to CHAP. V.J UKITED STATES V. DEWITT. 735 determine in what manner it will exercise the power it undoubtedly possesses. "We cannot regard the right to operate a lottery as a fundamental right infringed by the legislation in question ; nor are we able to see that Congress can be held, in its enactment, to have abridged the freedom of the press. The circulation of newspapers is not prohibited, but the government declines itself to become an agent in the circula- tion of printed matter which it regards as injurious to the people. The freedom of communication is not abridged within the intent and meaning of the constitutional provision unless Congress is absolutely destitute of any discretion as to what shall or shall not be carried in the mails, and compelled arbitrarily to assist in the dissemination of matters condemned by its judgment, through the governmental agen- cies which it controls. That power may be abused furnishes no ground for a denial of its existence, if government is to be main- tained at all. In short, we do not find sufficient grounds in the arguments of counsel, able and exhaustive as they have been, to induce us to change the views already expressed in the case to which we have referred. We adhere to the conclusion therein announced. The writs of habeas corpus prayed for will therefore be denied, and the rules hereinbefore entered discharged. UNITED STATEkS v. DEWITT. ScpEEMB Court of the United States. 1869. [9 Wall. 41.] On certificate of division in opinion between the judges of the Cir- cuit Court for the Eastern District of Michigan ; the case being this : Section 29 of the Act of March 2d, 1867 (14 Stat, at Large, 484), declares, " That no person shall mix for sale naphtha and illuminating oils, or shall knowingly sell or keep for sale, or offer for sale such mixture, or shall sell or offer for sale oil made from petroleum for illuminating pur- poses, inflammable at less temperature or fire-test than 110 degrees Fahrenheit; and any person so doing, shall be held to be guilty of a misdemeanor, and on conviction thereof bj- indictment or presentment in any court of the United States having competent jurisdiction, shall be punished by fine, &c., and imprisonment," &c. Under this section one Dewitt was indicted, the offence charged being the offering for sale, at Detroit, in Michigan, oil made of petro- leum of the description specified. There was no allegation that the sale was in violation or evasion of any tax imposed on the property sold. It was alleged only that the sale was made contrary to law. 736 UNITED STATES V. DEWITT. [CHAP. V. To this indictment there was a demurrer ; and thereupon arose two questions, on which the judges were opposed in opinion. (1) Whether the facts charged in the indictment constituted any oflfence under any valid and constitutional law of the United States ? (2) Whether the aforesaid section 29 of the Act of March 2d, 1867, was a valid and constitutional law of the United States ? Mr. Field, Assistant Attorney-General, for the United States. Mr. Wills, contra. The Chief Justice delivered the opinion of the court. The questions certified resolve themselves into this : Has Congress power, under the Constitution, to prohibit trade within the limits of a State ? That Congress has power to regulate commerce with foreign nations and among the several States, and with the Indian tribes, the Consti- tution expressly declares. But this express grant of power to regulate commerce among the States has always been understood as limited bj- its terms ; and as a virtual denial of anj' power to interfere with the internal trade and business of the separate States ; except, indeed, as a necessary and proper means for carrj'ing into execution some other power expressly granted or vestec^/ It has been urged in argument ahat the provision under which this ■ indictment was framed is within this exception ; that the prohibition of the sale of the illuminating oil described in the indictment was in aid and support of the internal revenue tax imposed on other illumi- nating oils. And we have been referred to provisions, supposed to be analogous, regulating the business of distilling liquors, and the mode of packing various manufactured articles ; but the analogy appears to fail at the essential point, for the regulations referred to are restricted to the verj' articles which are the subject of taxation, and are plainly adapted to secure the collection of the tax imposed ; while, in the case before us, no tax is imposed on the oils the sale of which is prohibited. If the prohibition, therefore, has any relation to taxation at all, it is merely that of increasing the production and sale of other oils, and, consequently, the revenue derived from them, by excluding from the market the particular kind described. This consequence is too remote and too uncertain to warrant us in saying that the prohibition is an appropriate and plainly adapted means for carrying into execution the power of laying and collecting taxes. There is, indeed, no reason for sajniig that it was regarded by Con- gress as such a means, except that it is found in an act imposing in- ternal duties. Standing by itself, it is plainly a regulation of police ; and that it was so considered, if not bj* the Congress which enacted it, certainl}" by the succeeding Congress, may be inferred from the cir- cumstance, that while all special taxes on illuminating oils were re- pealed by the Act of July 20th, 1868, which subjected distillers and refiners to the tax on sales as manufacturers, this prohibition was left unrepealed. CHAP. V.J UNITED STATES V. DEWITT. 737 As a police regulation, relating exclusively to tlie internal trade of the States, it can only have effect where the legislative authority of Congress excludes, territoriallj-, all State legislation, as for example, in the District of Columbia. Within State limits, it can have no con- stitutional operation. This has been so frequently declared by this court, results so obviously from the terms of the Constitution, and has been so fully explained and supported on former occasions, that we think it unnecessary to enter again upon the discussion. The first question certified must, therefore, be answered in the negative. The second question must also be answered in the negative, except so far as the section named operates within the United States, but without the limits of any State.* 1 In the License Tax Cases, .5 Wall. 462, 470 (1866),Cha8E,C. J., for the court, said: "This series of propositions, and the conclusion in which it terminates, depends on the postulate that a license necessarily confers an authority to carry on the licensed business. But do the licenses required by the Acts of Congress for selling liquor and lottery tickets confer any authority whatever t " It is not doubted that where Congress possesses constitutional power to regulate trade or intercourse, it may regulate by means of licenses as well as in other modes ; and, in case of such regulation, a license will give to the licensee authority to do what- ever is authorized by its terms. . . . But very different considerations apply to the internal commerce, or domestic trade of the States. Over this commerce and trade Congress has no power of regulation nor any direct control. This power belongs exclusively to the States. No interference by Congress with the business of citizens transacted within a State is warranted by the Constitution, except such as is strictly incidental to the exercise of powers clearly granted to the legislature. The power to authorize a business within a State is plainly repugnant to the exclusive power of the State over the same subject. ... If, therefore, the licenses under consideration must be regarded as giving authority, to carry on the branches of business which they license, it might be difficult, if not impossible, to reconcile the granting of them with the Constitution. . . " But it is not necessary to regard these laws as giving such authority. So far as they relate to trade within State limits, they give none, and can give none. They simply express the purpose of the government not to interfere by penal proceedings with the trade nominally licensed, if the required taxes are paid. The power to tax is not questioned, nor the power to impose penalties for non-payment of taxes. The granting of a license, therefore, must be regarded as nothing more than a mere form of imposing a tax, and of implying nothing except that the license shall be subject to no penalties under national law, if he pays it." In Patterson v. Ky., 97 U. S. 501 (1878), Harlan, J., for the court said : " Whether the final judgment of the Court of Appeals of Kentucky denies to plaintiff in error any right secured to her by the Constitution and laws of the United States, is the sole question presented in this case for our determination. _. " That court affirmed the judgment of an inferior State court in which, upon indict- ment and trial, a fine of $250 was imposed upon plaintiff in error for a violation of certain provisions of a Kentucky statute, approved Feb. 21, 1874, regulating the in- spection and gauging of oils and fluids, the product of coal, petroleum, or other bitu- minous substances. . . . " The specific offence charged in the indictment was that the plaintiff in error had sold, within the State, to one Davis, an oil known as the Aurora oil, the casks con- taining which had been previously branded by an authorized inspector with the words 'unsafe for illuminating purposes.' That particular oil is the same for which, in VOL. I. — 47 738 HENDERSON ET AL. V. MAYOR OF N. Y. ET AL. [CHAP. V. In Henderson et al. v. Mayor of New York et al., 92 U. S. 259 (1875), where on a suit by certain ship-owners to test the validity of a statute of New York relating to foreign immigrants, this statute was declared void, Miller, J., for the court, said : " In the case of The City of New York v. Miln, reported in 11 Pet. 103, the question of the constitutionalit}- of a statute of the State concerning passengers in ves- sels coming to the port of New York wns considered by this court. It 1867, letters-patent were granted to Henry C. Dewitt, of whom the plaintiff in error is the assignee, by assignment duly recorded as rgquired by the laws of the United States. Upon the trial of the case it was agreed that the Aurora oil could not, by any chemical combination described in the patent, be made to conform to the stand- ard or test required by the Kentucky statute as a prerequisite to the right, within that State, to sell, or to offer for sale, illuminating oils of the kind designated. " The plaintiff in error, as assignee of the patentee, in asserting the right to sell the Aurora oil in any part of the United States, claims that no State could, consistently with the Federal Constitution and the laws of Congress, prevent or obstruct the exer- cise of that right, either by express words of prohibition, or by regulations which pre- scribed tests to wiiich the patented article could not be made to conform. " The Court of Appeals of Kentucky held this construction of the Constitution and the laws of the United States to be inadmissible, and in that opinion we concur. " Congress is given power to promote the progress of science and the useful arts; To that end it may, by all necessary and proper laws, secure to inventors, for limited times, the exclusive right to their inventions. That power has been exerted in the various statutes prescribing the terras and conditions upon which lettei's-patent may be obtained. It is true that letters-patent, pursuing the words of the statute, do, in terms, grant to the inventor, his heirs and assigns, the exclusive right to make, usej and vend to others his invention or discovery, throughout the United States and the Territories thereof. But, obviously, this right is not granted or secured, without reference to the general powers which the several States of the Union unquestionably possess over their purely domestic affairs, whether of internal commerce or of police. . . . The Kentucky statute under examination manifestly belongs to that class of legislation. It is, in the best sense, a mere police regulation, deemed essential for the protection of the lives and property of citizens. It expresses in the most solemn form the deliberate judgment of the State that burning fluids which ignite or perma- nently burn at less than a prescribed temperature, are unsafe for illuminating pur- poiies. Whether the policy thus pursued by the State is wise or unwise, it is not the province of the- national authorities' to determine. That belongs to each State, under its own sense of duty, and in view of the provisions of its own Constitution. Its action. In those respects, is beyond the corrective power of this court. That the statute of 1 874 is a police regulation within the meaning of the authorities is clear from our decision in United States v. Dewitt, 9 Wall. 41. . " The Kentucky statute being, then, an ordinary police regulation for the govern- ment of those engaged in the internal commerce of that State, the only remaining question is, whether, under the operation of the Federal Constitution and the laws of Congress, it is without effect in cases where the oil, although condemned by the State as unsafe for illuminating purposes, has been made and prepared for sale in accords ance with a discovery for which letters-patent had been granted. We are of opinion that the right conferred upon the patentee and his assigns to use and vend the cor- poreal thing or article, brought into existence by the application of the patented dis- covery, must be exercised in subordination to the police regulations which the State established by the statute of 1874. It is not to be supposed that Congress intended to authorize or regulate the sale, within a State, of tangible personal property which that State declares to lie unfit and unsafe for use, and by statute has prohibited from being sold or offered for sale within her limits." Compare Trade Mark Cases, 100 U. S. 82. — Ed, GHAP. v.] HENDERSON ET AL. V. MAYOR OF N. Y. ET AL. 739 was an Act passed February 11, 1824, consisting of several sections. Tlie first section, tlie only one passed upon by the court, required the master of every ship or vessel arriving in the port of New York from any country out of the United States, or from any other State of the United States, to make report in writing, and on oath, within twenty- four hours after his arrival, to the mayor of the city, of the name, place of birth, last legal settlement, age, and occupation of every person brought as .a passenger from any country out of the United States, or from any of the United States into the port of New York, or into any of the United States, and of all persons landed from the ship, or put on board, or suffered to go on board, any other vessel during the voyage, with intent of proceeding to the city of New York. A penalty was pre- scribed of seventy-five dollars for each passenger not so reported, and fpr every person whose name, place of birth, last legal settlement, age, and occupation should be falsely reported. "The other sections required him to give bond, on the demand of the mayor, to save harmless the city from all expense of support and main- tenance of such passenger, or to return any passenger, deemed liable to become a charge, to his last place of settlement ; and required each passenger, not a citizen of the United States, to make report of himself to the niaj-or, stating his age, occupation, the name of the vessel in which he arrived, the place where he landed, and name of the com- mander of the vessel. "We gather from the report of the case that the defendant, Miln, was sued for the penalties claimed for refusing to make the report required in the first section. A division of opinion was certified by the judges of the Circuit Court on the question, whether the Act assumes to regulate commerce between the port of New York and foreign ports, and is unconstitutional and void. " This court, expressly limiting its decision to the first section of the Act, held that it fell within the police powers of the States, and was not in conflict with the Federal Constitution. " From this decision Mr. Justice Story dissented, and in liis opinion stated that Chief Justice Marshall, who had died between the first and the second argument of the case, fully concurred with him in the view that the statute of New York was void, because it was a regulation of commerce forbidden to the States^ "In the Passenger Cases, reported in 7 How. 283, the branch of the statute not passed upon in the preceding ease came under consideration in this court. It was not the same statute, but was a law relating to the marine hospital on Staten Island. It authorized the health com- missioner to demand, and. if not paid, to sue for and recover, from the master of every vessel arriving in the port of New York from a foreign port, one dollar and fifty cents for each cabin passenger, and one dollar for each steerage passenger, mate, sailor, or mariner, and from the mas- ter of each coasting vessel twenty-five cents for each person on board. These moneys were to be appropriated to the use of the hospital. " The defendant, Smith, who was sued for the sum of $295 for r»- 740 HENDERSON ET AL. V. MAYOR OF N. Y. ET AL. [CHAP. V. fusing to paj' for 295 steerage passengers on board the British ship ' Henry Bliss,' of which he was master, demurred to tlie declaration on the ground that the Act was contrary to the Constitution of the United States, and void. From a judgment against him, affirmed in the Court of Errors of the State of New York, he sued out a writ of error, on which the question was brought to this court. "It was here held, at the January Term, 1849, that the statute was ' repugnant to the Constitution and laws of the United States, and therefore void.' 7 How. .572. " Injmediately after this decision, the State of New York modified her statute on that subject, with a view, no doubt, to avoid the consti- tutional objection ; and amendments and alterations have continued to be made up to the present time. " As the law now stands, the master or owner of every vessel land- ing passengers from a foreign port is bound to make a report similar to the one recited in the statute held to be valid in the case of New York V. Miln ; and on tiiis report the mayor is to indorse a demand upon tlie master or owner that he give a bond for every passenger landed in the cit}-, in the penal sum of $300, conditioned to indemnify the com- missioners of emigration, and ever3- county, city, and town in the State, against anj' expense for the relief or support of the person named in the bond for four years thereafter ; but the owner or consignee may commute for such bond, and be released from giving it, by paying, within twentj'-fonr hours after the landing of the passengers, the sum of one dollar and fifty cents for each one of them. If neither the bond be given nor the sum paid within the twenty-four hours, a penalty of $500 for each pauper is incurred, which is made a lien on the vessel, collectible by attachment at the suit of the Commissioner of Emigration. " Conceding the authority of the Paasenger Cases, which will be more fully considered hereafter, it is argiled that the change in the stat- ute now relied upon requiring primarily a bond for each passenger landed, as an indemnity against his becoming a future charge to the State or county, leaving it optional with the ship-owner to avoid this by paying a fixed sum for each passenger, takes it out of the principle of the case of Smith v. Turner, — the Passenger Case from New York. It is said that the statute in that case was a direct tax on the passen- ger, since the Act authorized the shipmaster to collect it of him, and that on that ground alone was it held void ; while in the present case the requirement of the bond is but a suitable regulation under the power of the State to protect its cities and towns from the expense of supporting persons who are paupers or diseased, or helpless women and children, coming from foreign countries. " In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect ; and if it is appar- ent that the object of this statute, as judged by that criterion, is to compel the owners of vessels to pay a sum of money for every passen- ger brought by them from a foreign shore, and landed at the port of CHAP, v.] HENDERSON ET AL. V. MAYOR OF N. Y. EX AL. 741 New York, it is as much a tax on passengers if collected from them, or a tax on the vessel or owners for the exercise of the right of lauding their passengers in that cit^-, as was the statute held void in the Pas- senger Cases. " To require a heav)' and almost impossible condition to the exercise of tliis right, with the alternative of payment of a small sum of mone^-, is, in effect, to demand payment of that sum. To suppose that a vessel, which once a month lands from three hundred to one thousand passen- gers, or from three thousand to twelve thousand per annum, will give that many bonds of $300 with good sureties, with a covenant for four years, against accident, disease, or poverty of the passenger named in such bond, is absurd, when this can be avoided by the payment of one dollar and fiftj' cents collected of the passenger before he embarks on the vessel. " Such bonds would amount in many instances, for every voyage, to more than the value of the vessel. The liabilit}' on the bond would be, through a long lapse of time, contingent on circumstances which the bondsman could neither foresee nor control. The cost of preparing the bond and approving sureties, with the trouble incident to it in each case, is greater than the sum required to be paid as commutation. It is inevitable, under such a law, that the money would be paid for each passenger, or the statute resisted or evaded. It is a law in its purpose and effect imposing a tax on the owner of the vessel for the pi'ivilege of landing in New York passengers transported from foreign countries. " It is said that the purpose of the Act is to protect the State against the consequences of the flood of pauperism immigrating from Europe, and first landing in that city. " But it is a strange mode of doing this to tax every passenger alike who comes from abroad. " The man who brings with him important additions to the wealth of the country, and the man who is perfectly free from disease, and brings to aid the industry of the country a stout heart and a strong arm, are as much the subject of the tax as the diseased pauper who may become the object of the charity of the city the day after he lands from the vessel. " No just rule can make the citizen of France landing from an Eng- lish vessel on our shore liable for the support of an English or Irish pauper who lands at the same time from the same vessel. . . . " The accuracy of these definitions is scarcely denied by the advo- cates of the State statutes. But assuming that, in the formation of our government, certain powers necessary to the administration of their internal affairs are reserved to the States, and that among these powers are those for the preservation of good order, of the health and comfort of the citizens, and their protection against pauperism and against con- tagious and infectious diseases, and other matters of legislation of like character, they insist that the power here exercised falls within this classy and belongs rightfully to the States. 742 HENDERSON ET AL. V. MAYOR OF N. Y. ET AL. {OHAP. V. " This power, frequently referred to in the decisions of this court, has been, in general terms, somewhat loosely calted the police power. It is not necessary- for the course of tliis discussion to attempt to define it more accurately than it has been defined already. It is not necessary, because whatever may be tlie nature and extent of that power, where not otherwise restricted, no definition of it, and no urgency for its use, can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution. " Nothing Is gained in the argument by calling it the police power. Very many statutes, -when the authority on which their enactments rest is examined, may be referred to different sources of power, and sup- ported equallj' well under an^' of them. A statute ma}' at the same time be an exercise of the taxing power and of the power of eminent domain. A statute punishing counterfeiting may be for the protection of the private citizen against fraud, and a measure for the protection of the currency and for the safety of the government which issues it. It must occur very often that the shading which marks the line between one class of legislation and another is very nice, and not easily distinguishable. " But, however difficult this may be, it is clear, from the nature of our complex form of government, that, whenever the statute of a State invades the domain of legislation which belongs exclusively to the Con- gress of the United States, it is void, no matter under what class of powers it may fall, or how closelj- allied to powers conceded to belong to the States." * 1 Compare Chy Lung v. Freeman et al., 92 U. S. 275. The vague and ill-considered notions that are widely entertained as to what is meant by the "police power," maybe observed in certain misleading observations that have a ponsiderable currency ; e.g., that the Federal government has no police power in the States ; that the Fourteenth Amendment has no relation to the police power of the States ; that the States have never parted with the police power. But in truth, the partition of the total powers of government which took place when our Federal Consti- tution was adopted, did not, either in name or in fact, proceed upon such lines as are here indicated. How thoroughly the powers of the Federal government are interlaced with those of the States as regards matters of local police, may be seen, for example, in the discussions relating to the regulation of foreign and interstate commerce, and commerce with the Indian tribes. As regards the Fourteenth Amendment, it had for its main purpose that of cutting down the local legislative power of the States, their " police power," and conferring on the general government the right to restrain them in exercising it. Under this amendment, indeed, its action is but negative. As re- gards the affirmative power of the general government, when it is remembered that certain entire topics are committed to it, for exainple, those of foreign relations, the taxing of imports, the post-office, the currency, bankruptcy, the regulation of external and interstate commerce, it is easy to see that much of what is understood by the " police power," is wrapped up in these things ; in determining, for example, on the admission or exclusion of foreigners, in settling what may pass through the mails, or what goods shall come in free and what shall pay duty. — Ed. CHAP. Y.] MUNN V. ILLINOIS. 743 MUNN V. ILLINOIS. Supreme Couet of the United States. ,,1876. [94 U.S. 113.] Error to the Supreme Court of the State of Illinois. . , . [The Constitution of Illinois of 1870, art. xiii. s. ], declared all elevators, where grain or other pi-opert}' is stored for a compensation, to be public warehouses ; s. 2, required in places of not less than one hun- dred thousand inhabitants, the making under oath and public posting and filing of certain statements as to the amount and kind of grain or other property, stored, and warehouse receipts issued and outstand- ing, and the daily noting of changes in the quantitj' and grade of grain ; and forbade the mixing of different grades without the owners' consent; s. 3, secured the owner of stored property libert}- to ex- amine it, add the warehouse books and records relating to it ; s. 4, bouud oommon carriers to weigh or measure grain where shipped, and to re- ceipt for it ; and made them responsible for delivering it all ; s. 5, required railroad companies to deliver grain directl}- to the consignee, if he could be reached b}- any track which they could use, and required them to allow connections with their tracks, for such purposes ; ss. 6 and 7 made it the duty of the legislature to pass all necessar3- laws to prevent the issue of fraudulent warehouse receipts, and to give effect to this article of the Constitution, and for the inspection of grain and the protection of the producers, shippers, and receivers of grain and produce. A statute of Illinois, approved April 25, 1871, divided warehouses into classes A, B, and C ; and required the keepers of warehouses of class A, to qualify by taking out a license, which should be revocable by the court granting it upon a summary proceeding, on complaint and satisfactory proof. The licensee was required to file a bond for the performance of his dutj', with a surety in the sum of $10,000. A penalty of flOO a day was imposed for carrying on the business without a license. "Ware- housemen of class A were required yearly, during the first week in January, to publish the rates for the storage of grain for the coming year, and these were not to be increased during tiie year, — with certain exceptions. A maximum charge was fixed for storing and handling grain of 2 cents a bushel, for the first thirty days,; and for each fifteen days or less afterwards, one half of one per cent a bushel ; with certain variations.] On the twenty-ninth day of June, 1872, an information was filed in the Criminal Court of Cook County, 111., against Munn & Scott, alleging that they were, on the twenty-eighth day of June, 1872, in the city of Chicago, in saidcountj-, the managers and lessees of a public warehouse, known as the "North-western Elevator," in which they then and there stored grain in bulk, and mixed the grain of different owners together 744 MUNN V. ILLINOIS. [OHAP. V. ill said warehouse ; that the warehouse was located in the city of Chicago, which contained more than one hundred thousand inhabi- tants ; that they unlawfully transacted the business of public ware- housemen, as aforesaid, without procuring a license from the Circuit Court of said county, permitting them to transact business as public warehousemen, under the laws of the State. To this information a plea of not guilty was interposed. From an agreed statement of facts, made a part of the record, it appears that Munn & Scott leased of the owner, in 1862, the ground occupied by the "North-western Elevator," and erected thereon the grain warehouse or elevator in that j'ear, with their own capital and means ; that they ever since carried on, in said elevator, the busi- ness of storing and handling grain for hire, for which they charged and received, as a compensation, the rates of storage which had been, from year to year, agreed upon and established bj- the diflferent elevators and warehouses in the cit}- of Chicago, and published in one or more news- papers printed in said city, in the month of January in each 3-ear, as the established rates for the year then next ensuing such publication. On the twenty-eighth day of June, 1872, Munn & Scott were the man- agers and proprietors of the grain warehouse known as " The North- western Elevator," in Chicago, 111., wherein grain of diflferent owners was stored in bulk and mixed together ; and thej- then and there carried on the business of receiving, storing, and delivering grain for hire, without having taken a license from the Circuit Court of Cook County', permitting them, as managers, to transact business as public ware- housemen, and without having filed with the clerk of the Circuit Court a bond to the people of the State of Illinois, as required by sects. 3 and 4 of the Act of April 25, 1871. The city of Chicago, then, and for more than two years before, had more than one hundred thousand in- habitants. Munn- & Scott had stored and mixed grain of different owners together, only by and with the express consent and permission of such owners, or of the consignee of such grain, they having agreed that the compensation should be the published rates of storage. Munn & Scott had complied in all respects with said Act, except in two particulars : first, they had not taken out a license, nor given a bond, as required by sects. 3 and 4 ; and, second, they had charged for storage and handling grain the rates established and published in Januarj-, 1872,V7hich were higher than those fixed by sect. 15. The defendants were found guiltj', and fined $100. The judgment of the Criminal Court of Cook County having been affirmed by the Supreme Court of the State, Munn & Scott sued out this writ, and assign for error : — 1. Sects. 3,4, 5, and 15 of the statute are unconstitutional " and void. 2. Said sections are repugnant to the third clause of sect. 8 of art. 1, and the sixth clause of sect. 9, art. 1, of the Constitution of the United States, and to the Fifth and Fourteenth Amendments. CHAP, v.] MUNN V. ILLINOIS. 745 Mr. W. C. Goudy^i with whom was Mr. John If. Jewett, for the plaintiffs in error. Mr. James K. Edsall, Attornej'-General of Illinois, contra. Mr. Chief Justice Waite delivered the opinion of the court. The question to be determined in this case is whether the General Assembly of Illinois can, under the limitations upon the legislative power of the States imposed by the Constitution of the United States, fix by law the maximum of charges for the storage of grain in ware- houses at Chicago and other places in the State having not less than one hundred thousand inhabitants, "in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a manner that the identity of different lots or parcels cannot be accurately preserved." It is claimed that such a law is repugnant — 1. To that part of sect. 8, art. 1, of the Constitution of the United States which confers upon Congress the power " to regulate commerce with foreign nations and among the several States ; " 2. To that part of sect. 9 of the same article which provides that " no preference shall be given by anj' regulation of commerce or revenue to the ports of one Sf ate over those of another ; " and 3. To that part of amendment 14 which ordains that no State shall "deprive any person of life, libert}-, or property, without due process of law, nor denj' to any person within its jurisdiction the equal pro- tection of the laws." We will consider the last of these objections first. Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. If there is doubt, the expressed will of the legislature should be sustained. The Constitution contains no definition of the word " deprive," as used in the Fourteenth Amendment. To determine its signification, therefore, it is necessary to ascertain the effect which usage has given it, when employed in the same or a like connection. While this provision- of the amendment is new in the Constitution of the United States, as a limitation upon the powers of the States, it is old as a principle of civilized government. It is found in Magna Charta, and, in substance if not in form, in nearly or quite all the constitutions that have been from time to time adopted by the several States of the Union. By the Fifth Amendment, it was introduced into the Consti- tution of the United States as a limitation upon the powers of the national government, and by the Fourteenth, as a guarantee against any encroachment upon an acknowledged right of citizenship by the leo-- islatures of the States. When the people of the United Colonies separated from Great Britain, they changed the form, but not the substance, of their govern- ment. They retained for the purposes of government all the powers of the British Parliament, and through their State constitutions, or other forms of social compact, undertook to give practical effect to such as 746 MUNN V. ILLINOIS. £CHAP, T. they deemed necessaiy for the common good and the security of life and property. All the powers which they retained they committed to their respective States, unless in express terms or by implication re- served to themselves. Subsequently, when it was found necessary' to establish a national government for national purposes, a part of the powers of the States and of the people of the States was granted to the United States and the people of the United States. This grant operated as a further limitation upon the powers of the States, so that now the governments of the States possess all the powers of the Parliament of England, except such as have been delegdited to the United States or reserved by the people. The reservations by the people are shown in the prohibitions of the constitutions. When one becomes a member of society, he necessarilj- parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. "A body politic," as aptly de- fined in the preamble of the Constitution of Massachusetts, " is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by cer- tain laws for the common good." This does not confer power upon the whole people to control rights which are purel3- and exclusively private (Thorpe v. JR. & V. Railroad Co., 27 Vt. 143) ; bot it does authorize the establishment of laws requiring each citizen to so conduct himself; and so use his own propertj', as not unnecessarily to injure another. This is the verj- essence of government, and has found expression in the maxim Sic utere tuo ut alienum non Icedas. From this source come the police powers, which, as was said by Mr. Chief Justice Taney in tlie Xiicense Oases, 5 How. 583, " are nothing more or less than the powers of government inherent in every sovereigntj-, . . . that is to saj-, . , . the power to govern men and things." Under these powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, &c., and in so doing to fix a maximum of charge to be made for services rendered, accom-. modations furnished, and articles sold. To this day, statutes are to be found in many of the States upon some or all these subjects ; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property. With the Fifth Amendment in force, Congress, in 1820, conferred power upon the city of Washington "to regulate . . . the rates of wharfage at private wharves, . . . the sweeping of chimneys, and to fix the rates of fees therefor, . . . and the weight and quality of bread," 3 Stat. 587, sect. 7; and, in 1848, "to make all necessary regulations respecting hackney carriages and the rates of fare of the same, and the rates of hauling by cartmen, wagoners, carmen, CHAP. Y.] M0NN V. ILLINOIS. 747 and draj'men, and the rates of commission of auctioneers," 9 Id. 224, sect. 2. From this it is apparent that, down to the time of the adoption of the Fourteenth Amendment, it was not supposed that statutes regulating tlie use, or even the price of the use, of private propertj' necessarily deprived an owner of his property without due process of law. Under some circumstances they ma^-, but not under all. The amendment does not change the law in this particular : it simply pi'eveuts the States from doing that which will operate as such a deprivation. This brings us to inquire as to the principles upon which this power of regulation rests, in order that we may determine what is within and what without its operative effect. Looking, then, to the common law, from whence came the right which the Constitution protects, we find that when private property is " affected with a public interest, it ceases to be juris privati only." This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg. Law Traqts, 78, and has been accepted without objection as an essential element in the law of property ever since. Propertj' does be- come clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use ; but, so long as he maintains the use, he must submit to the control. . . . [Here follow passages from Sir Matthew Hale's writings, as to ferries and wharves.] This statement of the law by Lord Hale was cited with approbation and acted upon by Lord Kenyon at the beginning of the present Cen- tury, in Bolt V. Stennett, 8 T. R. 606. And the same has been held as to warehouses and warehousemen. In Aldnutt v. Iiiglis, 12 East, 527, decided in 1810, it appeared that the London Dock Company had built warehouses in which wines were taken in store at such rates of charge as the compan}- and the owners might agree upon. Afterwards the company obtained authority, under the general warehousing Act, to receive wines from importers before the duties upon the importation were paid ; and the question was, whether they could charge arbitrary rates for such storage, or must be content with a reasonable compensation. . . . [Here follow long quotations from the opinions in this case, in which it is held that the charges must be reasonable.] In later times, the same principle came under consideration In the Supreme Court of Alabama. That court was called upon, in 1841, tode- cide whether the power granted to the city of Mobile to regulate the weight and pi'ice of bread was unconstitutional, and it was contended that " it would interfere with the right of the citizen to pursue his lawful trade or calling in the mode his judgment might dictate ; " but the court 748 MUNN V. ILLINOIS. [CHAP. V. said, " there is no motive ... for this interference on the part of the legislature with the lawful actions of individuals, or the mode in which private property shall be enjoyed, unless such calling affects the public interest, or private property is employed in a manner which directly affects the body of the people. Upon this principle, in this State, tavern-keepers are licensed ; . . . and the County Court is required, at least once a year, to settle the rates of innkeepers. Upon the same principle is founded the control which the legislature has always exer- cised in the establishment and regulation of mills, ferries, bridges, turn- pike roads, and other kindred subjects."* Mobile v. Yuille, 3 Ala. U.S. 140. From the same source comes the power to regulate the charges of common carriers, which was done in England as long ago as the third year of the reign of William and Mar}', and continued until within a comparatively recent period. And in the first statute we find the fol- lowing suggestive preamble, to wit : — " And whereas divers wagoners and other carriers, by combination amongst themselves, have raised the prices of carriage of goods in many places to excessive rates, to the great injury of the trade : Be it, there- fore, enacted," &c. 3 W. & M. c. 12, § 24; 3 Stat, at Large (Great Britain), 481. Common carriers exercise a sort of public ofHce, and have duties to perform in which the public is interested. N'ew Jersey Nav. Co. v. Merchants' Bank, 6 How. 382. Their business is, therefore, " affected with a public interest," within the meaning of the doctrine which Lord Hale has so forcibly stated. But we need not go further. Enough has alread}' been said to show that, when private property is devoted to a public use, it is subject to public regulation. It remains onlj' to ascertain whether the warehouses of these plaintiffs in error, and the business which is carried on there, come within the operation of this principle. For this purpose we accept as true the statements of fact contained in the elaborate brief of one of the counsel of the plaintiffs in error. From these it appears that "the great producing region of the West and North-west sends its grain by water and rail to Chicago, where the greater part of it is shipped by vessel for transportation to the seaboard by the Great Lakes, and some of it is forwarded bj' railwaj' to the Eastern ports. . . . Vessels, to some extent, are loaded in the Chicago harbor, and sailed through the St. Lawrence directlj* to Europe. . . . The quantity [of grain] received in Chicago has made it the greatest grain market in the world. This business has created a demand for means by which the immense quantity of grain can be handled or stored, and these have been found in grain warehouses, which are commonly called elevators, because the grain is elevated from the boat or car, by machinery operated by steam, into the bins prepared for its reception, and elevated from the bins, by a like process, into the vessel or car which is to carry it on In this way the largest trafllc between the CHAP, v.] MUNN V. ILLINOIS. 749' citizens of the country- nortli and west of Chicago and the citizens of the country lying on. the Atlantic coast north of Washington is in graia which passes through the elevators of Chicago. In this way the trade in grain is carried on bj- the inhabitants of seven or eight of the great States of the West with four or five of the States lying on the sea-shore, and forms the largest part of interstate commerce in these States. The grain warehouses or elevators in Chicago are immense structures, holding from 300,000 to 1,000,000 bushels at one time, according. to size. They are divided into bins of large capacity and great strength. . . . They are located with the river harbor on one side and the rail- way tracks on the other ; and the grain is run through them from car to vessel, or boat to car, as may be demanded in the course of business. It has been found impossible to preserve each owner's grain separate, and this has given rise to a system of inspection and grading, b3- which the grain of different owners is mixed, and receipts issued for the number of bushels which are negotiable,and redeemable in like kind, upon demand. This mode of conducting the business was inaugurated more than twenty j-ears ago, and has grown to immense proportions. The rail- ways have found it impracticable to own such elevators, and public policy forbids the transaction of such business b^* the carrier ; the owner- ship has, therefore, been bj' private individuals, who have embarked their capital and devoted their industry to such business as a private pursuit." In this connection it must also be borne in mind that, although in 1874 tliere were in Chicago fourteen warehouses adapted to this par- ticular business, and owned by about thirty persons, nine business, firms' controlled them, and that the prices charged and received for storage were such " as have been from year to year agreed upon and established by the different elevators or warehouses in the city of Chicago, and which rates have been annually published in one or more newspapers printed in said city, in the month of January in each year, as the established rates for tlie year then next ensuing such publication." Thus it is apparent that all the elevating facilities through which these vast productions "of seven or eight great States of the West" must pass on the way " to four or five of the States on the sea-shore" may be a "virtual" monopolj-. Under such circumstances it is diflScult to see why, if the common carrier, or tlie miller, or the ferryman, or the innkeeper, or the wharfin- ger, or the baker, or tiie cartman, or the hackne3--coachman, pursues a public employment and exercises " a sort of public office," these plain- tiffs in en-or do not. They stand, to use again the language of their counsel, in the very " gateway of commerce," and take toll from all wlio pass. Their business most certainly " tends to a common charge, and is become a thing of public interest and use." Every bushel of grain for its passage " pays a toll, which is a common charge," and, therefore, according to Lord Hale, every such warehouseman "ouglit to be under public regulation, viz., that he . . . take but reasonable 750 MUNN V. ILLINOIS. [CHAP. V. toll." Certainlj', if any business can be clothed " with a public interest and cease to be juris privati only," this has been.. .It maj' not be made so b^- the operation of the Constitution of Illinois or this statute, but it is bj' the facts. We also are not permitted to overlook the fact that, for some reason, the people of Illinois, when they revised their Constitution in 1870, saw fit to make it the dutj' of the General Assembly to pass laws " for the protection of producers, shippers, and receivers of grain and produce," art. 13, sect. 7 ; and by sect. 5 of the same article, to require all rail- road companies receiving and transporting«grain in bulk or otherwise to deliver the same at anj- elevator to which it might be consigned, that could be reached by any track that was or could be used b^- such com- pany, and that all railroad companies should permit connections to be made .with their tracks, so that anj' public warehouse, dec, might be reached by the cars on their railroads. This indicates ver\- clearly that during the twentj' j^ears in which this peculiar business had been assum- ing its present "immense proportions." something had occurred which led the whole body of the people to suppose that remedies such as are usually employed to prevent abuses by virtual monopolies might not be inappropriate here. For our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actuallj- did exist when the statute now under consideration was passed. For us the question is one of power, not of expediencj". If no state of circum- stances could exist, to justify such a statute, then we maj- declare this one void, because in excess of the legislative power of the State. But if it could, we must presume it did. Of the proprietj' of legislative inter- ference within the scope of legislative power, the legislature is the ex- clusive judge. Neither is it a matter of any moment that no precedent can be found for a statute precisely- like this. It is conceded that the business is one of recent origin, that its growth has been rapid, and that it is already of great importance. And it must also be conceded that it is a busi- ness in which the whole public has a direct and positive interest. It presents, therefore, a case for the application of a long-known and well- established principle in social science, and this statute simply extends the law so as to meet this new development of commercial progress. There is no attempt to compel these owners to grant the public an interest in their property, but to declare their obligations, if they use it in this particular manner. It matters not in this case that these plaintiffs in error had built their warehouses and established their business before the regulations com- plained of were adopted. What they did was from the beginning sub- ject to the power of the bod}' politic to require them to conform to such regulations as might be established by the proper authorities for the common good. They entered upon their business and provided them- selves with the means to carry it on subject to this condition. If they did not wish to submit themselves to such interference, they should not CHAP, v.] MUNN V. ILLINOIS. 751 have clothed the public with an interest in their concerns. The same principle applies to them that does to the proprietor of a hackney-car- riage, and as to him it has never been supposed that he was exempt from regulating statutes or ordinances because he had purchased his horses and carriage and established his business before the statute or the ordinance was adopted. It is insisted, however, that the owner of property is entitled to a reasonable compensation for its use, even though it be clothed with a public interest, and that what is reasonable is a judicial and not a legis- lative question. As has already been shown, the practice has been otherwise. In countries where the common law prevails, it has been customary from time immemorial for the legislature to declare what shall be a reason- able compensation under such circumstances, or, perhaps more properly speaking, to fix a maximum beyond which any charge made would be unreasonable. Undoubtedlj', in mere private contracts, relating to matters in which the public has no interest, what is reasonable must be ascertained judicially. But this is because the legislature has no con- trol over such a contract. So, too, in matters which do affect the public interest, and as to which legislative control ma}' be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reasonable. The controlling fact is the power to regulate at all. If that exists, the right, to establish the maximum of charge, as one of the means of regulation, is implied. In fact, the common-law rule, which requires the charge to. be reasonable, is itself a regulation as to price. Without it the owner could make his rates at will, and compel the public to yield to his terms, or forego the use. But a mere common-law regulation of trade or business may be changed by statute. A person has no property, no vested interest, in any rule of the common law. Tiiat is only one of the forms of munici- pal, law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process ; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless pre- vented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances. To limit the rate of charge for services rendered in a public employment, or for the use of property in which the public has an interest, is only changing a regula- tion which existed before. It establishes no new principle in the law, but only gives a new effect to an old one. We know that this is a power which may be abused ; but that is no argument against its existence. For protection against abuses by legis- latures the people must resort to the polls, not to the courts. After what has already been said, it is unnecessary to refer at length to the efltect of the other provision of the Fourteenth Amendment which is relied upon, viz.) that no State shall " deny to any person within its 752 MUNN V. ILLINOIS. [OHAP. V. jurisdiction the equal protection of the laws." Certainl}', it cannot be claimed that this prevents the State from regulating the fares of hack- men or the charges of draymen in Chiuago, unless it does the same thing in every other place within its jurisdiction. But, as has been seen, the power to regulate the business of warehouses depends upon the same principle as the power to regulate hackmen and draymen, and what can- not be done in the one case in this particular cannot be done in the other. We come now to consider the effect upon this statute of the power of Congress to regulate commerce. It was very properly said in the case of the State Tax on Railway Gross Receipts, 15 Wall. 293, that " it is not everything that affects commerce that amounts to a regulation of it, within the meaning of the Constitution." The warehouses of these plaintiffs in error are situated and their business carried on exclusively within the limits of the State of Illinois. They are used as instruments by those engaged in State as well as those engaged in interstate commerce, but they are no more necessarily a part of commerce itself than the dray or the cart by which, but for them, grain would be transferred from one railroad station to another. Incidentally they may become connected with interstate com- merce, but not necessarily so. Their regulation is a thing of domestic concern, and, certainh', until Congress acts in reference to their inter- state relations, the State may exercise all the powers of government over them, even though in so doing it may indirectly operate upon com- merce outside its immediate jurisdiction. We do not say that a case may not arise in which it will be found that a State, under the form of regulating its own affairs, has encroached upon the exclusive domain of Congress, in respect to interstate commerce, but we do sa}- that, upon the facts as they are represented to us in this record, that has not been done. The remaining objection, to wit, that the statute in its present form is repugnant to sect. 9, art. 1 , of the Constitution of the United States, because it gives preference to the ports of one State over those of another, may be disposed of by the single remark that this provision operates onlj' as a limitation of the powers of Congress, and in no re- spect affects the States in the regulation of their domestic affairs. We conclude, therefore, that the statute in question is not repugnant to the Constitution of the United States, and that there is no error in the judgment. In passing upon this case we have not been unmindful of the vast importance of the questions involved. This and cases of a kindred character were argued before us more than a year ago by most eminent counsel, and in a manner worthy of their well-earned reputa- tions. We have kept the cases long under advisement, in order that their decision might be the result of our mature deliberations. Jvidgment affirmed. [Field, J., gave a dissenting opinion, in which Strong, J., concurred.J CHAP, v.] KAILEOAD CO. V. HUSEN. 753 RAILROAD COMPANY v. HUSEN. Supreme Court or the United States. 1877. [95 U. S. 465.] 1 Error to the Supreme Court of the State of Missouri. Mr. James Carr, for the plaintitf in error. Mr. M. A. Low, contra. Mr. Justice Strong delivered the opinion of the court. Five assignments of error appear in this record ; but thej' raise only a single question. It is, whether the statute of Missouri, upon which the action in the State court was founded, is in conflict with the clause of the Constitution of the United States that ordains " Congress shall i have power to regulate commerce with foreign nations, and among the I several States, and with the Indian tribes." The statute, approved Jan. 23, 1872, bj' its first section, enacted as follows : " No Texas, Mexican, or Indian cattle shall be driven or otherwise conveyed into, or remain, | in any county in this State, between the first daj- of March and the first day of November in each year, by any person or persons whatsoever." A later section is in these words : " If anj- person or persons shall bring into this State an}' Texas, Mexican, or Indian cattle, in violation of the first section 'of this Act, he or they shall be liable, in all cases, for all damages sustained on account of disease communicated by said cattle." Other sections make such bringing of cattle into the State a criminal offence, and provide penalties for it. It was, however, upon the provi- sions we have quoted that this action was brought against the railroad company that had conveyed the cattle into the county. It is noticeable that the statute interposes a direct prohibition against the introduction into the State of all Texas, Mexican, or Indian cattle during eight months of each year, without any distinction between such as may be diseased and such as are not. It is true a proviso to the first section enacts that " when such cattle shall come across the line of the State, , loaded upon a railroad car or steamboat, and shall pass through the! State without being unloaded, such shall not be construed as prohibited by the Act ; but the railroad company or owners of a steamboat perform- ing such transportation shall be responsible for damages which may result from the disease called the Spanish or Texas fever, should the same occur along the line of transportation ; and the existence of such disease along the line of such route shall he prima facie evidence that such disease has been communicated by such transportation." This proviso imposes burdens and liabilities for transportation through the State, though the cattle be not unloaded, while the body of the section absolutely prohibits the introduction of any such cattle into the State, with the single exception mentioned. It seems hardly necessary to argue at length, that, unless the statute 1 The statement of facts i.s omitted. — Ed. VOL. I. — 48 754 EAILROAD CO. V. HUSEN. [CHAP. V. I can be justified as a legitimate exercise of the police power of the State, it is a usurpation of the power vested Exclusively in Congress. It is a plain regulation of interstate commerce, a regulation extending to pro- hibition. Whatever maj- be the power of a State over commerce that is completely internal, it can no more prohibit or regulate that which is interstate than it can that which is with foreign nationg) Power over one is given by the Constitution of the United States to Congress in the same words in which it is given over the other, and in both cases it is necessarily exclusive. That the transportation of property from one State to another is a branch of interstate Commerce is undeniable, and no attempt has been made in this case to deny it!) / The Missouri statute is a plain interference with such transportation, an attempted exercise over it of the highest possible power, — that of destruction. It meets at the borders of the State a large and common subject of commerce, and prohibits its crossing the State line during two thirds of each 3'ear, with a proviso, however, that such cattle maj' come across the line loaded upon a railroad car or steamboat, and pass through the State without being unloaded. But even the right of steam- boat owners and railroad companies to transport such propertj- through the State is loaded b}' the law with onerous liabilities, because of their agency in the transportation, ^he object and effect of the statute are, therefore, to obstruct interstate commerce, and to discriminate between the propertj- of citizens of one State and that of citizens of other States. This court has heretofore said that interstate transportation of passen- gers is beyond the reach of a State legislature. And if, as we have held. State taxation of persons passing from one State to another, or a State tax upon interstate transportation of passengers, is prohibited by the Constitution because a burden upon it, a fortiori, if possible, is a State tax upon the carriage of merchandise from State to State. Transpor- tation is essential to commerce, or rather it is commerce itself ; and every obstacle to it, or burden laid upon it by legislative authority, is \ regulation.^ Case of the State Freight Tax, 15 Wall. 232; Ward v. Maryland, 12 Id. 418 ; Welton v. The State of Missouri, 91 U. S. 275 ; Henderson et al. v. Mayor of the City of New York et al., 92 Id. 259 ; Chy Lung v. Freeman et al.. Id. 275. The two latter of these cases refer to obstructions against the admission of persons into a State, but the principles asserted are equall3' applicable to all subjects of commerce. I We are thus brought to the question whether the Missouri statute is a lawful exercise of the police power of the State. We- admit that the deposit in Congress of the power to regulate foreign commerce and commerce atnong the States was not a surrender of that which may properly be denominated police power. What that power is, it is diflS- cult to define with sharp precision. It is generally said to extend to making regnlations promotive of domestic order, morals, health, and safety. As was said in Thorpe v. The Rutland & Surlington Railroad Co., 27 Vt. 149, " it extends to the ^ protection of the lives, limbs, CHAP, v.] EAILROAD CO. V. HUSEN. 755 health, comfort, and quiet of all persons, and the protection of all prop- erty within the State. According to the maxim, /Sic utere tuo ut alienum non Imdas, whicli being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others." ... It may also be admitted that the police power of a State justifies the adoption of precautionary measures against social evils. Under it a State may legislate to prevent the spread of crime, or pauperism, or disturbance of the peace. It may exclude from its limits convicts, paupers, idiots, and lunatics, and persons likely to become a public charge, as well as persons afflicted by contagious or infectious diseases ; a right founded, as intimated in the Passenger Cases, 7 How. 283, by Mr. Justice Greer, in the sacred law of self defence. Vide 3 Sawyer, 283. The same principle, it may also be conceded, would justify the exclusion of property dangerous to the property of citizens of the State ; for example, animals having contagious or infectious diseases. All these exertions of power are in immediate connection with the protection of persons and property against noxious acts of other persons, or such a use of pvopertj' as is iiyurious to the property' of others. They are self- defensive. But whatever may be the nature and reach of the police power of a State, it cannot be exercised over a subject confided exclusivel}- to Congress bj- the Federal Constitution. It cannot invade the domain of the national government. It was said in Henderson et al. v. Mayor of the City of New York et al., supra, to "be clear, from the nature of our complex form of government, that whenever tlie statute of a State invades the domain of legislation which belongs exclusively to the Con- gress of the United States, it is void, no matter under what class of powers it may fall, or how closely allied it may be to powers conceded to belong to the Stated Substantially the same thing was said by Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1. Neither the unlimited powers of a State to tax, nor any of its large police powers, can be exercised to such an extent as to work a practical assumption of the powers properly conferred upon Congress by the Constitution. Man}' acts of a State ma}', indeed, affect commerce, without amounting to a regulation of it, in the constitutional sense of the term. And it is sometimes difflcnlt to define the distinction between that which merel}- aflfects or influences and that which regulates or furnishes a rule of conduct. There is no such difficulty in the present case. While we unhesitatingly admit that a State may pass sanitary laws, and laws for the protection of life, liberty, health, or property within its borders ; while it may prevent persons and animals suffering under contagious or infectious diseases, or convicts, &c., from entering the State ; while for the purpose of self-protection it maj' establish quar- antine, and reasonable in?pection laws, it may not interfere with transportation into or througji the State, beyond what is absolutely necessary for its self-protection. \X may not, under cover of exert- 756 RAILROAD CO. V. HUSEN. [CHAP. V. ing its police powers, siibstantiallj- prohibit or burden either foreign or interstate commere4 Upon this subject the eases in 92 U. S. to which we have referred are ver^' instructive. In Henderson v. The Mayor, &c., the statute of New York was defended as a police regu- lation to protect the State against the influx of foreign paupers ; but it was held to- be unconatitutioual, because its practical result was to impose a burden upon all passengers from foreign countries. And it was laid down that, " in whatever language a statute maj- be framed, its purpose must be determined by its natural and reasonable effect." The reach of the statute was far beyond its professed object, and far into the realm which is within the exclusive jurisdiction of Congress. So in the case of Chy Lung v. Freeman, where the pretence was the exclusion of lewd women ; but as the statute was more far-reaching, and affected other immigrants, not of an^- class which the State could law- fully exclude, we held it unconstitutional. Neitherof these cases denied the right of a State to protect herself against paupers, convicted crimi- nals, or lewd women, by necessary and proper laws, in the absence of legislation by Congress, but it was ruled that the right could only arise from vital necessity, and that it could not be carried bej'ond the scope of that necessity. These cases, it is true, speak only of laws affecting the entrance of persons into a State ; but the constitutional doctrines they maintain are equally applicable to .interstate transportation of property-. They deny validity to anj' State legislation professing to be an exercise of police power for protection against evils from abroad, which is beyond the necessity for its exercise wherever it interferes with - the rights and powers of the Federal government. / Tried by this rule, the statute of Missouri is a plain intrusion upon the exclusive domain of Congress. It is not a quarantine law. It is not an inspection law. It says to all natural persons and to all trans- portation companies, " You shall not bring into the State any Texas cattle or any Mexican cattle or Indian cattle, between March 1 and I Dec. 1 in any year, no matter whether they are free from disease or not, no matter whether they may do an injury to the inhabitants of the State or not ^ and if j-ou do bring them in, even for the purpose of carrying them through the State witliout unloading them, you shall be subject to extraordinary liabilities." Such a statute, we do not doubt, it is be3'ond the power of the State to enact. To hold otherwise would be to ignore one of the leading objects which the Constitution of the United States \ was designed to secnre.\ In coming to such a conclusion, we have not overlooked the decisions of very respectable courts in Illinois, where statutes similar to the one we have before us have been sustained. Yeasel v. Alexander, 58 111. 254. Kegarding the statutes as mere police regulations, intended to protect domestic cattle against infectious disease, those courts have refused to inquire whether the prohibition, did not extend bej-ond the danger to be apprehended, and whether, therefore, the statutes were not something more than exertions of police power. That inquiry, they CHAP. V.J BEER CO. V. MASS. 757 have said, was for the legislature and not for the courts. With this we cannot concur. The police power of a State cannot obstruct foreign commerce or interstate commerce beyond the necessity for its exercise ; and under color of it objects not within its scope cannot be secured at the expense of the protection afforded by the Federal Constitution. And as its range sometimes comgs very near to the field committed by the Constitution to Congress, it is the "duty of the courts to guard vigi- lantly against anj- needless intrusion. Judgment reversed, and the record remanded with instructions to reverse the judgment of the Circuit Court of Grundy County, and to direct thai court to award a new trial.^ In Beer Co. v. Mass., 97 U. S. 25, 32 (1878), on error to the Supe- rior Court of Massachusetts, the plaintiff in error, having been incor- porated in that State, in 1828, for the purpose of manufacturing malt liquors, denied the validity of a prohibitory liquor law of 1869, on the ground that it impaired the obligation of the contract of their charter. The Supreme Court of the United States (Bradley, J.), after holding that the Legislature of Massachusetts had reserved to itself power " to pass any law it saw fit," continued : " But there is another question in the case, which, as it seems to us, is equally decisive. "The plaintiff in error was incorporated ' for the purpose of manu- facturing malt liquors in all their varieties,' it is true ; and the right to manufacture, undoubtedl3^ as the plaintiff's counsel contends, included the incidental right to dispose of the liquors manufactured. But although this right or capacity was thus granted in the most unqualified form, it cannot be construed as conferring any greater or more sacred right than any citizen had to manufacture malt liquor ; nor as exempt- ing the corporation from anj' control therein to which a citizen would be subject, if the interests of the community should require it. If the public safety or the public morals require the discontinuance of any 1 In Kimmish y. Ball, 129 U. S. 217, 222 (1889), the court (Field, J.) said : "The case is, therefoire, reduced to this, whether the State may not provide that whoever permits diseased cattle in his possession to run at large within its limits shall he liable for any damages caused by the spread of the disease occasioned thereby ; and upon that we do not entertain the slightest doubt. Our answer, therefore, to the first question upon which the judge below differed is in the negative, that the section in question is not unconstitutional by reason of any conflict with the commercial clause of the Con- stitution. " As to the second question, our answer is also in the negative. There is no denial of any rights and privileges to citizens of other States which are accorded to citizens of Iowa. No one can allow diseased cattle to run at large in Iowa without being held responsible for the damages caused by the spread of disease thereby ; and the clause of the Constitution declaring that the citizens of each State shall be entitled to all privi- leges and immunities of citizens in the several States does not give non-resident citizens of Iowa any greater privileges and immunities in that State than her own citizens there enjoy. So far as liability is concerned for the act mentioned, citizens of other States and citizens of Iowa stand upon the same footing. Paul v. FjVjinia, 8 Wall. 168." Compare Barrigan v. Conn. River Lumber Co., 129 Mass. 580. — Ed. 758 HEAD MONEY CASES. [CHAP. V. manufacture or traffic, the hand of the legislature caunot be stayed from providing for its discontinuance, by anj' incidental inconvenience which individuals or corporations may suffer. All rights are held subject to |the police power of the State. " We do not mean to say that property actually in existence, and in which the right of the owner has become vested, maj* be taken for the public good without due compensation. But we infer that the liquor in this case, as in the case of Bartemeyer v. Iowa, 18 Wall. 129, was not iu existence when the liquor law of Massachusetts was passed. Had the plaintiff in error relied on the existence of the property prior to the law, it behooved it to show that fact. But no such fact is shown, and no such ^int is talcen. The plaintiff in error boldly takes the ground that, being a corporation, it has a right, bj- contract, to manufacture aud sell beer forever, notwithstanding and in spite of an}- exigencies which may occur in the morals or the health of the community, requir- ing such manufacture to cease. We do not so understand the rights of the plaintiff. The legislature had no power to confer any such rights. "Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it maj- be to ren- der a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and propert}' of the citizens, and to the preservation of good order and the public morals. The legislature cannot, b^' anj' contract, divest itself of the power to provide for these objects. Thej- belong emphatically to that class of objects which demand the application of the maxim. Solus populi su- prema lex; and they are to be attained and provided for b^' such appro- priate means as the legislative discretion maj- devise. That discretion can no more be bargained away than the power itself. JBoyd v. Ala- bama, 94 U. S. 645. " Since we have already held, in the case of Bartemeyer v. Iowa, that as a measure of police regulation, looking to the preservation of public morals, a State law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to any clause of the Constitution of the United States, we see notliing in the present case that can afford any sufficient ground for disturbing the decision of the Supreme Court of Massachusetts." . . . Judgment affirmed. In the Jlead Money Cases, 112 U. S. 580, 590 (1884), in sustaining an Act of Congress of 1882, imposing " a dutj- of fifty cents for each and every passenger not a citizen of the United States who shall come by steam or sail vessel from a foreign port to any port within the United States," Miller, J., for the court, said : " This Act of Con- gress is similar in its essential features to many statutes enacted by States of the Union for the protection of their own citizens, and for the good of the immigrants who land at seaports within their borders. "That the purpose of these statutes is humane, is highly beneficial CHAP, v.] HEAD MONEY CASES. 759 to the poor and helpless immigrant, and is essential to the protection of the people in whose midst thej' are deposited b\' the steamships, is beyond dispute. That the power to pass such laws should exist in some legislative body in this country is equallj' clear. This court has decided distinctly and frequently, and always after a full hearing from able counsel, that it does not belong to the States. That decision did not rest in any case on the ground that the State and its people were not deeply interested in the existence' and enforcement of such laws, and were not capable of enforcing them if they had the power to enact them ; but on the ground that the Constitution, in the division of powers which it declares between the States and the general government, has conferred this power on the latter to the exclusion of the former. We are now asked to decide that it does not exist in Congress, which is to hold that it does not exist at all — that the framers of the Constitution have so worded that remarkable instrument, that the ships of all nations, including our own, can, without restraint or regulation, deposit here, if the}- find it to their interest to do so, the entire European population of criminals, paupers, and diseased persons, without making any provision to preserve them from starvation, and its concomitant sufferings, even for the first few days after they have left the vessel. "This court is not only asked to decide this, but it is asked to over- rule its decision, several times made with unanimity, that the power does reside in Congress, is conferred upon that body by the express language of the Constitution, and the attention of Congress directed to the duty which arises from that language to pass the very law which is here in question. "That these statutes are regulations of commerce — of commerce with foreign nations — is conceded in the argument in this case ; and that they constitute a regulation of that class which belongs exclusively to Congress is held in all the cases in this court. It is upon these propo- sitions that the court has decided in all these cases that the State laws are void. . . . [Here the court considers ah objection to the imposition in question as being not uniform and not levied to "provide for the common defence and general welfare of the United States."] " If it were necessary to prove that the imposition of this contribu- tion on owners of ships is made for the general welfare of the United States, it would not be difHcult to show that it is so, and particularly that it is among the means which Congress may deem necessary and proper for that purpose; and beyond this we are not permitted to inquire. " But the true answer to all these objections is that the power exer- cised in this instance is not the taxing power. The burden imposed on the ship owner by this statute is the mere incident of the regulation of commerce — of that branch of foreign commerce which is involved in immigration. " 760 HEAD V. A.MOSKEAG MANUF. CO. [CHAP. V. HEAD V. AMOSKEAG MANUFACTURING COMPANY. Supreme Court op the United States, 1885. >■ [113 U. S. 9.] This was a writ of error to reyerse a judgment of the Supreme Court of the State Of New Hampshire against the plaintiff in error, upon a petition filed by the defendant in error (a corporation estab- lished by the laws of New Hampshire for the manufacture of cotton, woollen, iron and other materials) for the assessment of damages for the flowing of his land by its mill-dam at Amoskeag Falls on the Merri- mack River, under the -general mill Act of that State of 1868, ch. 20, which is copied in the margin. [It is omitted here ; the substance of it sufficiently appears in what follows.] In the petition filed in the State court, the Amoskeag Manufacturing Company- alleged that it had been authorized bj' its charter to purchase and hold real estate, and to erect thereon, such dams, canals, mills, buildings, machines and works as it might deem necessar3' or useful in carrying on its manufactures and business ; that it had purchased the land on both sides of the Merrimack River at Amoskeag Falls, including the river and falls, and had there built mills, dug canals, and established works, at the cost of several millions of dollars, and, for the purpose of making the whole power of the river at the falls avail- able for the use of those mills, had constructed a dam across the river ; that the construction of the mills and dam, to raise the water for work- ing the mills, for creating a reservoir of water, and for equalizing its flow, was of public use and benefit to the people of the State, and necessary for the use of the mills for which it was designed ; and that Head, the owner of a tract of land, described in the petition, and bounded bj' the river, claimed damages for the overflowing thereof by the dam, which the corporation had been unable satisfactorily to adjust ; and prayed that it might be determined whether the construction of the mills and dam, and the flowing, if any, of Head's land to the depth and extent that it might or could be flowed thereby, were or might be of public use or benefit to the people of the State, and whether they were necessary for the mills, and that damages, past or future, to the land by the construction of the dam might be assessed according to the statute. At successive stages of the proceedings, by demurrer, b^' request to the court after the introduction of the evidence upon a trial bj' jur}', and by motion in arrest of judgment. Head objected that the statute was unconstitutional, and that the petition could not be main- tained, because the^- contemplated the taking of his property for private use, in violation of the Fourteenth Amendment of the Constitution of the United States, which declares that no State shall deprive any per- CHAP, v.] HEAD V. AMOSKEAG MANUF. CO. 761 son of property -without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws ; as well as in violation of the Constitution of the State, the Bill of Eights of which declares that all men have certain natural, essential and inherent lights, among which are the acquiring, possessing and protecting property, and that every member of the community has a right to be protected in the enjoyment of his property. His objections were overruled by the highest court of New Hamp- shire, and final judgment was entered, adjudging that the facts alleged in the petition were true, and that, upon paj-ment or tender of the damages assessed by the verdict, with interest, and fifty per cent added, making in all the sum of $372.43, the company have the right to erect and maintain the daiii, and to flow his land forever to the depth and extent to which it might or could be flowed or injured thereby. 56 N. H. 386 ; 59 N. H. 332, 563. Mr. 0. H. Morrison, for plaintiff in error. Mr. George F. Hoar and Mr. B. Wadleigh, for defendant in error. Mr. Justice Ghay delivered the opinion of the court. He recited the facts as above stated, and continued : The position that the plaintiff in error has been denied the equal pro- tection of the laws was not insisted upon at the argument. The single question presented for decision is whether he has been deprived of his property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States. It is only as bearing upon that question, that this court, upon a writ of error to a State court, has jurisdiction to consider whether the statute conforms to the Constitution of the State. The charter of the Amoskeag Manufacturing Company, which authorized it to erect and maintain its mills and dam, gave it no right to flow the lands of others. JEastman v. Amoskeag Manufactur- ing Co., 44 N. H. 143. The proceedings in the State court were had under the general mill Act of New Hampshire, which enacts that any person, or any corporation authorized by its charter so to do, may erect or maintain on his or its own land a water mill and mill-dam upon any stream not navigable, paying to the owners of lands flowed the damages which, upon a petition filed in court by either party, may be assessed, by a committee or by a jury, for the flowing of the lands to the depth and extent to which they may or can be flowed by the dam. N. H. Stat. 1868, ch. 20. The plaintiff in error contends that his property has been taken by tlie State of New Hampshire for private use, and that any taking of private property for private use is without due process of law. The defendant in error contends that the raising of a water powel* upon a running stream for manufacturing purposes is a public use ; that the statute is a constitutional regulation of the rights of riparian owners ; and that the remedy given by the statute is due process of law. 762 HEAD V. AMOSKEAG MANUF. CO. [CHAP. V. General mill Acts exist i'u a great majoritj- of the States of the Union. Such Acts, authorizing lands to be taken or flowed in invitum, for the erection and maintenance of mills, existed in Virginia, Marj'land, Delaware and North Carolina, as well as in Massachusetts, New Hampshire and Khode Island, before the Declaration of Independence ; and exist at this day in each of these States, except Maryland, where they were repealed in 1832. One passed in North Carolina in 1777 has remained upon the statute-book of Tennessee. They were enacted in M'aine, Kentucky, Missouri and Arkansas, soon after their admission into the Union. Thej' were passed in Indftina, Illinois, Michigan, Wis- consin, Iowa, Nebraska, Minnesota, Mississippi, Alabama and Florida, while they were yet Territories, and re-enacted after they became States. They were also enacted in Pennsylvania in 1803, in Connecticut in 1864, and more recently in Vermont, Kansas, Oregon, West Virginia and Georgia, but were afterwards repealed in Georgia. The principal statutes of the several States are collected in the margin. [The note refers to the statutes of twent^'-nine States. It is omitted here.] In most of those States, their validity has been assumed, \«ithont dispute ; and they were never adjudged to be invalid anywhere until since 1870, and then in three States onlj', and for incompatibilitj- with their respective constitutions. Loughbridge v. Harris (1871), 42 Georgia, 500 ; Tyler v. BeacJier (1871), 44 Vermont, 648 ; liyerson v. Brown (1877), 35 Michigan, 333. The earlier cases in Tennessee, Alabama and New York, containing dicta to the same effect, were decided upon other grounds. Harding v. Goodlett, 3 Yerger, 40 ; Memphis Mailroad v. Memphis, 4 Coldwell, 406 ; Moore v. Wrtght, 34 Alabama, 311, 333 ; Bottoms v. Brewer, 54 Alabama, 288 ; Hay v. Cohoes Co., 3 Barb. 42, 47, and 2 N. Y. 159. The principal objects, no doubt, of the earlier Acts were grist mills ; and it has been generally admitted, even by those courts which have entertained the most restricted view of the legislative power, that a grist mill which grinds for all comers, at tolls fixed bj' law, is for a public use. See also Blair v. Cuming County, 111 U. S. 363. But the statutes of many States are not so limited, either in terms, or in the usage under them. In Massachusetts, for more than half a centurj', the mill Acts have been extended to mills for any manufactur- ing purpose. Mass. Stat. 1824, ch. 153 ; Wolcott Woollen Manufac- turing Co. V. Upham, 5 Pick. 292 ; Palmer Co. v. Ferrill, 17 Pick. 58, 65. And throughout New England, as well as in Pennsylvania, Vir- ginia, North Carolina, Kentucky, and many of the Western States, the statutes are equally comprehensive. It has been held in many cases of high authority, that special Acts of incorporation, granted by the legislature for the establishment of dams to increase and improve the water power of rivers and navigable waters, for mechanical and manufacturing purposes, are for a public use. Scudder v. Trenton Delaware Falls Co., Saxton, 694, 728, 729 ; Boston & Boxbury Mill Corporation v. Newman, 12 Pick. 467 ; CHAP, v.] HEAD V. AMOSKEAG MANUF. CO. 763 Hazen v. Essex Co., 12 Cusli. 475 ; Commonwealth v. Essex Co., 13 Gray, 239, 251, 252 ; Hankins v. Lawrence, 8 Blackford, 266 ; Great Falls Manufacturing Co. v. Fernald, 47 N. H. 444. In some of those cases, the authority conferred by general mill Acts upon any owner of land upon a stream to erect and maintain a mill on his own land and to flow the land of others, for manufacturing purposes, has been considered as resting on the right of eminent domain, by reason of the advantages inuring to the public from the improvement of water power and the promotion of manufactures. See also Holyoke Co. V. Lyman, 15 Wall. 500, 506, 507 ; Beekman v. Saratoga & Sche- nectady Railroad, 3 Paige, 45, 73; Talbot v. Hudson, 16 Gray, 417, 426. And the validity of general mill Acts, when directly controverted, has often been upheld upon that ground, confirmed by long usage or prior decisions. Jordan v. Woodward, 40 Maine, 317; Olmstead v. Camp, 33 Conn. 532 ; Todd v. Austin, 34 Conn. 78 ; Venard v. Cross, 8 Kansas, 248 ; Harding v. Funk, 8 Kansas, 315 ; Miller v. Troost, 14 Minnesota, 282 ; Newcomb v. Smith, 1 Chandler, 71 ; Fisher v. Hori- con Co., 10 Wisconsin, 351 ; Babb v. Mackey, 10 Wisconsin, 314 ; Sum,ham\. Thompson, 35 Iowa, 421. In New Hampshire, from which the present casfe comes, the legis- lature of the Province in 1718 passed an Act (for the most part copied from the Massachusetts Act of 1714), authorizing the owners of mills to flow lands of others, paying damages assessed by a jury. The Act of 1718 continued in force until the adoption of the first Constitution of the State in 1784, and afterwards until June 20, 1792, and was then repealed, upon a general revision of the statutes, shortly before the State Constitution of 1792 took effect. The provisions of the Bill of Rights, on which the plaintiff in error relied in the court below, were exactly alike in the two constitutions. Special Acts authorizing the flowing of lands upon the payment of damages were passed afterwards from time to time; among others, the statute of July 8, 1862, author- izing the Great Falls Manufacturing Company to erect a dam upon Salmon Falls River, which was adjudged bj' the Supreme Judicial Court of New Hampshire in 1867, in an opinion delivered by Chief Justice Perley, to be consistent with the Constitution of that State, because the taking authorized was for a public use. Great Falls Manufactur- ing Co. V. Fernald, 47 N. H. 444. The statute now in question, the first general mill Act passed by the legislature of the State, was passed and took effect on July 3, 1868 ; was held in Ash v. Cummings, 50 N. H. 591, after elaborate argument against it, to be constitutional, upon the ground of the decision in Great Falls Manufacturing Co. v. Fernald ; and was enforced without question in Portland v. Morse, 51 N. H. 188, and in Town v. Faulkner, 56 N. H. 255. In the case at bar, and in another case since, the State court held its constitutionalitj' to be settled by the former decisions. Amoskeag Ma,nufacturing Co. v. Head, 56 N. H. 886, and 59 N. H. 332, 563 ; Same v. Worcester, 60 N. H. 522. The question whether the erection and maintenance of mills for 764 HEAD V. AMOSKEAG MANUF. CO. [OHAP. V. manufacturing purposes under a general mill Act, of which auy owner of land upon a stream not navigable may avail himself at will, can be upheld as a taking, by delegation of the right of eminent domain, of private property for public use, in the constitutional sense, is so im- portant and far reaching, that it does not become this court to express an opinion upon it, when not required for the determination of the rights of the parties before it. We prefer to rest the decision of this case upon the ground that such a statute, considered as regulating the manner in which the rights of proprietors of lands adjacent to a stream may be asserted and enjoyed, with a due regard to the interests of all, and to the public good, is within the constitutional power of the legislature. When propertj', in which several persons have a common interest, cannot be fully and beneficially enjoyed in its existing condition, the law often provides a way in which they may compel one another to sub- mit to measures necessary- to secure its beneficial enjoyment, making equitable compensation to any whose control of or interest in the pro- perty is thereby modified. In the familiar case of land held bj' several tenants in common, or even by joint tenants with right of survivorship, any one of them ma^- compel a partition, upon which the court, if the land cannot be equally- dividedj will order owelty- to be paid, or in many States, under statutes the con- stitutionality of which has never been denied, will, if the estate is such that it cannot be divided, either set it off to one and order him to com* pensate the others in money, or else order the whole estate to be sold. Kinff V. Beed, 11 Graj', 490 ; Bentley v. Long Dock Co., 1 McCarter, 480 ; s. C. on appeal, notn. Manners v. Bentley, 2 McCarter, 501 ; Mead v. Mitchell, 17 N. Y. 210 ; Bichardsonx. Manson, 23 Conn. 94. Water rights held in common, incapable of partition at law, maj- be the subject of partition in equity, either by apportioning the time and extent of use, or hy a sale of the right and a division of the pro* ceeds. Smith v. Smith, 10 Paige, 470 ; De Witt v. Harvey, 4 Gray, 486 ; McGillivray v. Evans, 27 California, 92. At the comnion law, as Lonl Coke tells us, " If two tenants in com^ mon, or joint tenants, be of an house or mill, and it fall in decay, and the one is willing to repair the same, and the other will not, he that is willing shall have a writ de reparatione facienda ; and the writ saith, ad reparationem et sustentationem ejusdem domus teneantur ; wherebj' it appeareth that owners are in that case bound pro bono publico to maintain houses and mills which are for habitation and use of men." Co. Lit. 200 b ; i Kent Com. 370. In the same spirit, the statutes of Massachusetts, for a hundred and seventj'-five j'ears, have provided that an3- tenant in common of a mill in need of repair may notifj' a general meeting of all the owners for consultation, and that, if any one refuses to attend, or to agree with the majority, or to pay his share, the ma}6rit3- may cause the repairs to be niade, and recover his share of the expenses out of the mill or its profits or earnings. Mass. Prov. Stat. 1709, ch. CHAP, v.] HEAD V. AMOSKEAG MANUF. CO. 765 3,- 1 Prov. Laws (State ed.) 641, and Anc. Chart. 388 ; Stat, 1795, ch. 74, §§ 5-7 ; Rev. Stat. 1836, ch. 116, §§ 44-58 ; Gen. Stat. 1860, ch. 149, §§ 53-64; Pub. Stat. 1882, ch. 190, §§ 59-70. And the slatutes of New Hampshire, for more than eighty years, have made provision for compelling the repair of mills in such cases. Roberts v. Peavey, 7 Foster, 477, 493. The statutes which have long existed in many States authorizing the majority of the owners in severalty of adjacent meadow or swamp lands to have commissioners appointed to drain and improve the whole tract, by cutting ditches or otherwise, and to assess and levy the amount of the expense upon all the proprietors in proportion to the benefits re- ceived, have been often upheld, independently of any effect upon the public health, as reasonable regulations for the general advantage of those who are treated for this purpose as owners of a common property. Coomes v. Hurt, 22 Pick. 422 ; Wright v. Boston, 9 Cush. 233, 241 ; Sherman v. Tobey, 3 Allen, 7 ; Lowell v. Boston, 111 Mass. 454, 469 ; French v. Kirkland, 1 Paige, 117 ; People v. Brooklyn, 4 N. Y. 419, 438; Coster v. Tide Water Co., 3 C. E. Green, 54, 68, 518, 531 j O'Reiley v. Kankakee Valley Draining Co,, 32 Indiana, 169. By the maritime law, based, as Lord Tenterden observed, on the consideration that the actual employment of ships is " a matter, not merely of private advantage to the owners, but of public benefit to the State," and recognized in the decisions and the rules of this court, courts of admiralty, when the part-owners of a ship cannot agree upon her employment, authorize the majority to send her to sea, on giving security to the dissenting minority, to bring back and restore the ship, or, if she be lost, to pay them the value of their shares ; and in such case the minority can neither recover part of the profits of the voj'age nor compensation for the use of the ship. Abbott on Shipping, pt. 1 , ch. 3, §§ 2, 3 ; The Steamboat Orleans, 11 Pet. 175, 183 ; Rule 20 in Admiralty, 3 How. vii. ; The Marengo, 1 Lowell, 52, If the part- owners are equally divided in opinion upon the manner of employing the ship, then, according to the general maritime law, recognized and applied by Mr. Justice Washington, the ship may be ordered to be sold and the proceeds distributed among them. The Seneca, 18 Am. Jur. 485 ; 8. 0. 3 Wall. Jr. 395, See also Story on Partnership, § 439 ; The Nelly Schneider, 8 P. D. 152. But none of the cases, thus put bj' way of illustration, so strongly call for the interposition of the law as the case before us. The right to the use of running water is publici juris, and common to all the proprietors of the bed and banks of the stream from its source to its outlet. Each has a right to the reasonable use of the water as it flows past his land, not interfering with a like reasonable use by those above or below him. One reasonable use of the water is the use of the power, inherent in the fall of the stream and the force of the current, to drive mills. That power cannot be used without damming up the water, and thereby causing it to flow back. If the water thus 766 HEAD V. AMOSKEAG MANUF. CO. [CHAP. T. dammed up by one riparian proprietor spread over the lands of others, the\- could at common law bring successive actions against him for the injur\- so done them, or even have the dam abated. Before the mill Acts, therefore, it was often impossible for a riparian proprietor to use the water power at all, without the consent of those above him. The purpose of these statutes is to enable anj' riparian proprietor to erect a mill and use the water power of the stream, provided he does not interfere with an earlier exercise bj- another of a like right or with an}- right of the public ; and to substitute, for the common-law remedies of repeated actions for damages and prostration of the dam, a new form of remedj', bj' which anj' one whose land is flowed can have assessed, once for all, either in a gross sum or bj- waj- of annual damages, adequate compensation for the injury'. This view of the principle upon which general mill Acts rest has been fully and clearly expounded in the judgments delivered by Chief Justice Shaw in the Supreme Judicial Court of Massachusetts. In delivering the opinion of the court in a case decided in 1832, he said : " The statute of 1796 is but a revision of a former law, and the origin of these regulations is to be found in the provincial statute of 1714. They are somewhat at variance with that absolute right of dominion and enjoyment which every proprietor is supposed by law to have in his own soil ; and in ascertaining their extent it will be useful to inquire into the principle upon which they are founded. We think they will be found to rest for their justification, partly upon the interest which the community at large has in the use and employment of mills, and partly gpon the nature of the property, which is often so situated that it could not be beneficially used without the aid of this power. A stream of water often runs through the lands of several proprietors. One maj' have a sufficient mill-site on his own land, with ample space on his own land for a mill-pond or reservoir, but yet, from the operation of the well-known physical law that fluids will seek and find a level, he cannot use his own property without flowing the water back more or less on the lands of some other proprietor. We think the power given bj' statute was intended to applj' to such cases, and that the legislature meant to provide that, as the public interest in such case coincides with that of the mill-owner, and as the mill-owner and the owner of lands to be flowed cannot both enjoy their full rights, without some in- terference, the latter shall yield to the former, so far that the former may keep up his mill and bead of water, notwithstanding the damage done to the latter, upon payment of an equitable compensation for the real damage sustained, to be ascertained in the mode provided by the statute." " From this view of the object and purpose of the statute, we think it quite manifest that it was designed to provide for the most useful and beneficial occupation and enjojment of natural streams and watercourses, where the absolute right of each proprietor to use his own land and water privileges, at his own pleasure, cannot be fully enjoyed, and one must of necessitj", in some degree, yield to the other." Fiske V. Framingham Manufacturing Co., 12 Pick. 68, 70-72. CHAP, v.] HEAD V. AMOSKEAG MANUF. CO. 767 In another case, decided almost twenty j-ears later, he said : " The re- lative rights of land-owners and mill-owners are founded on the estab- lished rule of the comoion law, that every proprietor, through whose territory a current of water flows, in its course towards the sea, has an equal right to the use of it, for all reasonable and beneficial purposes, including the power of such stream for driving mills, subject to a like reasonable and beneficial use, by the proprietors above him and below him, on the same stream. Consequently no one can deprive another of his equal right and beneficial use, by corrupting the stream, by wholly diverting it, or stopping it from the proprietor below him, or raise it artificiallj-, so as to cause it to flow bacls on the land of the proprietor above. This rule, in this Commonwealth, is slightly modified by the mill Acts, by the well-known provision, that when a proprietor erects a dam on his own land, and the effect is, by the necessary operation of natural laws, that the water sets back upon some land of the proprietor above, a consequence which he may not propose as a distinct purpose, but cannot prevent, he shall not thereby be regarded as committing a tort, and obliged to prostrate his dam, but may keep up his dam, pay- ing annual or gross damages, the equitable assessment of which is pro- vided for by the Acts. It is not a right to take and use the land of the proprietor above, against his will, but it is an authority to use his own land and water privilege to his own advantage and for the benefit of the community. It is a provision by law, for regulating the rights of pro- prietors, on one and the same stream, from its rise to its outlet, in a manner best calculated, on the whole, to promote and secure their common rights in it." Bates v. Weymouth Iron Co., 8 Cush. 548, 552, 553. Other opinions of Chief Justice Shaw illustrate the same view. Williams v. Nelson, 23 Pick. 141, 143 ; French v. Braintree Manu- facturing Co., 23 Pick. 216, 218-221 ; Gary v. Daniels, 8 Met. 466, 476, 477; Murdoekv. Stickney, 8 Cush. 113, 116; Gould v. Boston Buck Co., 13 Gray, 442, 450. It finds more or less distinct expression in other authorities. Lowell v. Boston, 111 Mass. 464-466; United States V. Ames, 1 Woodb. & Min. 76, 88 ; Waddy v. Johnson, 5 Ire- dell, 333, 339 ; Jones v. Skinner, 61 Maine, 25, 28 ; Omstead v. Gamp, 33 Conn. 547, 550 ; Chief Justice Redfield, in 12 Am. Law Reg. (n. s.) 498-500. And no case has been cited in which it has been considered and rejected. Upon principle and authority, therefore, independently of any weight due to the opinions of the courts of New Hampshire and other States, maintaining the validity of general mill Acts as taking private property for public use, in the strict constitutional meaning of that phrase, the statute under which the Araoskeag Manufacturing Company has flowed the land in question is clearly valid as a just and reasonable exercise of the power of the legislature, having regard to the public good, in a more general sense, as well as to the rights of the riparian proprietors, to regulate the use of the water power of running streams, which without 768 WUKTS V. HOAGLAND ET AL. [CHAP. V. some such regulation could not be beneflcially used. The statute does not authorize new njills to be erected to the detriment of existing mills and mill privileges. And \)y providing for an assessment of full compen' sation to the owners of lands flowed, it avoids the difficulty which arose in the case of Pumpelly v. Green Bay Co., 13 Wall. 166. Being a cbnstitutional exercise of legislative power, and providing a suitable remedy, by trial in the regular course of justice, to recover compensation for the injury to the land of the plaintiff in error, it has not deprived him of his property without due process of law, in vio- lation of the Fourteenth Amendment of the Constitution of the United States. Walker v. Sauvinet, 92 U. S. 90 ; Davidson v. New Orleans, 96 U. S. 97 ; HuHado v. California^ 110 U. S. 516 ; Hagar v. Becla-. mation District, 111 U. S. 701. Judgment affirmed. ' Mr. Justice Blatchfokd did not sit lu this case, or take any part in its decision. WURTS V. HOAGLAND et al. Supreme Court of the United States. 1885. [114 U. S. 606.] This was a writ of error by the devisees of Mary V. Wurts to reverse ' a judgment confirming an assessment of commissioners for the drainage of lands under the statute of New Jersey of March 8, 1871, the material provisions of which are as follows. [These will be found in a note.^] 1 Compare Lowell v. Boston, 111 Masg. 454, 464-471 (1873), Turner v. Nye, 154 Mass. 579 (1891), infra, 893. — Ed. ^ By § 1, "the Board of Managers of the Geological Survey, on the application of at least five owners of separate lots of land included in any tract of land in this State which is suhject to overflow from freshets, or which is usually in a low, marshy, boggy or wet condition," are authorized to examine the tract, and, if they deem it for the interest of the public and of the land owners to be affected thereby, then to make surveys, and decide upon and adopt a system of drainage, and report it to the Supreme Court of the State ; and thereupon the court, upon reasonable notice published in a newspaper circulating in the county where the tract is, shall appoint three commis- sioners to superintend and carry out the system of drainage so adopted and reported ; " provided, that if, at the time fixed for such appointment of commissioners, it shall appear to the court by the written remonstrance of the owners of a majority of the said low and wet lands duly authenticated by affidavit, that they are opposed to the drainage thereof at the common expense, then the said court shall not appoint such commissioners." By § 2, the commissioners shall cause the tract to be drained in accordance with the general plan of the board of managers, and, after the completion of the work, report to the Supreme Court the expense thereof, together with a genera] description of the lands which, in their judgment, ought to contribute to the expense ; notice of the report shall be published for four weeks, in order that any persons interested may examine the report, and file objections to it ; if any such objections are filed within the four weeks, the Supreme Coui;t shall determine upon the same in a summary manner, CHAP. V.J M'URTS V. HOAGLAND ET AL. 7C9 By proceedings had in accordance with this statute, the Board of Managers of the Geological Siirvej', upon the application of more than five owners of separate lots of land situated in the tract of land known as the Great Meadows on the Pequest Elver, examined and surveyed the entire tract, and repoited a plan for draining it to the Supreme Court, and on November 15, 1872, three commissioners were appointed to carry the plan into execution. Pending the proceedings, on March 19. 1874, a supplemental statute was passed, by § 2 of which, ''if the said commissioners, after having commenced the drainage of such tract, and proceeded therewith, shall, before the drainage of the same shall be completed, be compelled to suspend the completion thereof, from any inability at that time to raise the money required tlierefor, they shall proceed to ascertain the tracts of land benefited or intended to be benefited by said drainage, and the relative proportions in which the said respective tracts have been or will be benefited thereby, and also the expenses already incurred in said drainage, and as near as may be the additional expenses required for the completion thereof," and make and report to the court an assessment of sucli expenses. In accordance with that provision of the statute of 1874, the com- missioners, before completing the work, made and reported to the court an assessment based upon an estimate of contemplated benefits, which and, without/further notice, make an order directing the commissioners "to distribute and assess the amount of said expense and interest, upon the lands contained within the territory reported by them originally, or as corrected by the Supreme Court, in proportion, as near as they can judge, to the benefit derived from said drainage by the several parcels of land to be assessed ; " the assessment, when completed, shall be deposited in some convenient place for inspection by the parties interested, and notice of the completion of tlxe assessment, and of the place where it is deposited, published for six weeks, designating a time and place when and where the commissioners will meet to hear objections to the assessment; and the commissioners, having heard and decided upon such objections as shall be made to them, shall proceed to complete their assessment and file it in the clerk's office of the Supreme Court, and notice of the filing shall be published for four weeks, after which, if no objections have been made to the assessment, it shall be confirmed by the court ; any objections filed within the fonr weeks the Supreme Court shall hear and determine in a summary manner, but " shall not reverse said assessment or any part thereof, except for some error in law, or in the principles of assessment^ made or committed by said commissioners ; " if for any such canse the assessment or any part thereof shall be reversed, it shall be referred to the commissioners to be corrected accordingly, and, when it shall have been corrected and filed, like proceedings shall be had, until the court shall finally confirm the assessment; and thereupon the commissioners shall publish notice for four weeks, requiring the several owners or other parties interested in the lands assessed to pay their assessments. By § 3, further provisions are made for collecting the assessment by demand on the owner of the lands assessed, and if he cannot be found, or neglects or refuses to pay, then by sale of tiis land for the least number of years that any person will take the same. By § 5, the commissioners may from time to time borrow the necessary moneys to carry on the work of draining the lands, and give their bonds as such commis- sioners therefor, and pledge for the repayment thereof the assessment to be made as aforesaid. VOL. I. — 49 770 WUETS V. HOAGLAND ET AL. [CHAP. V. was, for that reason, upon objections filed by Mrs. Wiirts, set aside by an order of tlie Supreme Court, affirmed bj- the Court of Eri'ors. 10 Vroom, 433; 12 Vroom, 175. On May 17, 1879, after the completion of the work, the commis- sioners made a report to the court, pursuant to the statute of 1871, showing the expense to have been $107,916.07. No objections to that report having been filed after four weeks' notice, the court on June 23, ordered the commissioners to distribute that sum " upon the land men- tioned in their said report, in proportion, as nearly as thej- can judge, to the benefit derived from said drainage by the several parcels of land to be assessed." The commissioners made an assessment accordinglj-, the proportion of which on the lands of Mrs. Wurts was $13,347.84, and, after notice to and hearing of all parties who desired to object to the assessment, reported it to the Supreme Court, which directed it to be modified as to certain lands of other parties lying outside the original survey, and in other respects confirmed the assessment, notwithstand- ing objections made to it bj- the devisees of Mrs. Wurts ; and its judgment was affirmed in the Court of Errors. 13 Vroom, 553 ; 14 Vroom, 456. The judgment of the Court of Errors was the final judgment in the case, and this writ of error was addressed to the Supreme Court because at the time of suing out the writ of error the record had been transmitted to that court and was in its possession. 105 U. S. 701. The error assigned was that " the Act of March 8, 1871, upon which the said judgment and proceedings are founded, violates the Consti- tution of the United States in this, that it deprives the plaintiffs in error of their property* without due process of law, and denies to them the equal protection of the laws, and violates the first section of the Fourteenth Amendment to the Constitution of the United States." Mr. Samuel Dickson and Mr. J. G. Shipman, for plaintiffs in error. Mr. Theodore Little, for defendants in error. Mr. Justice Gray, after making the foregoing statement of facts, delivered the opinion of the court. General laws authorizing the drainage of tracts of swamp and low lands, by commissioners appointed upon proceedings instituted by some of the owners of the lands, and the assessment of the whole expense of the work upon all the lands within the tract in question, have long existed in the State of New Jersey, and have been sustained and acted on by her courts, under the Constitution of 1776, as well as under that of 1844. Stats. December 23, 1783, Wilson's Laws^, 382; November 29, 1788, and November 24, 1792, Paterson's Laws, 84, 119 ; Jones v. Lore, Pennington, 1048; Doremus v. Smith, 1 Southard, 142; West- cott V. Garrison, 1 Halsted, 132; State v. Frank It is, however, contended, that, although the State may prohibit the manufacture of intoxicating liquors for sale or barter within her limits, for general use as a beverage, " no convention or legislature has the right, under our form of government, to prohibit any citizen from manufacturing for his own iise, or for export, or storage,' any article of food or drink not endangering or affecting the rights of otheiJJ" The argument made in support of the first branch of this proposition, briefly stated, is, that in the implied compact between the State and the citizen certain rights are reserved by the latter, which are guaran- teed by the constitutional provision protecting persons against beino- deprived of life, liberty, or property, without due process of law, and with which the State cannot interfere ; ihat among those rights is that 788 MtTGLER V. KANSAS. [CHAP. V. of manufactui'ing for one's use either food or drink ; and that while, according to the doctrines of the Commune, the State maj' control the tastes, appetites, habits, dress, food, and drink of the people, our system of government, based upon tlie individualit}' and intelligence of the citizen, does not claim to control him, except as to his conduct to others, leaving him the sole judge as to all that only affects himself. It will be observed that the proposition, and the argument made in support of it, equally concede that the riglit to manufacture drink for one's personal use is subject to the condition that such manufacture does not endanger or affect the rights of'\)thers. -If such manufacture does prejudicially affect the rights and interests of the community, it follows, from, the very premises stated, that societj' has the power to protect Itself, by legislation, against the injurious consequences of that business. As was said in Munn v. Illinois, 94 U. S. 113, 124, while power does not exist with the whole people to control rights that are purely and exclusively private, government ma3- require "each citizen to so conduct himself, and so use his own property, as not unneces- sarily to injure another." But by whom, or b'y what authority, is it to be determined whether the manufacture of particular articles of drink, either for general use or for the personal use of the maker, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding onl}- their own appetites or passions, maj- be willing to imperil the peace and security of the many, provided only they are permitted to do as the)' please. IJnder our sj'stem thai; power is lodged with the legislative branch of the government. It belongs to that depai-tment to exert what are known as the police powers of the State, and to determine, primarily what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety. It does not at all follow that every statute enacted ostensibly for the promotion of these ends, is to be accepted as a legitimate exertion of the police powers of the State. There are, of necessity, limits beyond which legislation cannot rightfullj- go. . . . The courts are not bound bj' mere forms, nor are they to be misled by mere pretences. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever thej' enter upon tlie inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to iiave been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution. Keeping in view these principles, as governing the relations of the judicial and legislative departments of government with each other, it is difficult to perceive any ground for the judiciary to declare that CHAP, v.] MUGLEE V. KANSAS. 789 the prohibition by Kansas of the manufacture or sale, within her limits, of intoxicating liquors for general use there as a beverage, is not fairlj- adapted to the end of protecting the community against the evils which confessedly result from the excessive use of ardent spirits. There is no justification for holding that the State, under the guise merely of police regulations, is here aiming to deprive the citizen of his con- stitutional rights ; for we cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks ; nor the fact, established by statistics accessible to every one, that the idleness, disorder, pauperism, and crime existing in the country are, in some degree at least, traceable to this evil. If, there- fore, a State deems the absolute prohibition of the manufacture and sale, within her limits, of intoxicating liquors for other than medical, scientific, and manufacturing purposes, to be necessar3' to the peace and security of society, the courts cannot, without usurping legisla- tive functions, override the will of tlie people as thus expressed by their chosen representative^ They have nothing to do witli the mere policy of legislation. Indeed, it is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the Constitution to another department. And so, if, in the judgment of the legislature, the manufacture of intoxicating liquors for the maker's own use, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question_^ So far from such a regu- lation having no relation to the general end sought to be accomplished, the entire scheme of prohibition, as embodied in the Constitution and laws of Kansas, might fail, if the right of each citizen to manufacture in- toxicating liquors for his own use as a beverage were recognized. Such a right does not inhere in citizenship. Nor can it be said that govern- ment interferes with or impairs any one's constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society, and constitute, therefore, a busi- ness in which no one may lawfully engage .^^Those rights are best se- cured, in our government, by the observance, upon the part of all, of such regulations as are established by competent authority to promote the common good. No one may rightfully do that which the law-making power, upon reasonable grounds, declares to be prejudicial to the general welfare. This conclusion is unavoidable, unless the Fourteenth Amendment of the Constitution takes from the States of the Union those powers of police that were reserved at the time the original Constitution was adopted. But this court has declared, upon full consideration, in 790 MUGLER V. KANSAS. [CHAP. V. Barbier v. Connolly, 113 U. S. 27, 31, that the Fourteenth Amend- ment had no such eflfect. . . . ... It is contended that, as the primary and principal use of beer is as a "beverage ; as their respective breweries were erected when it was lawful to engage in the manufacture of beer for everj- purpose ; r.s such establishments will become of no value as property, or, at least, will be materially diminished in value, if not employed in the manu- facture of beer for every purpose ; the prohibition upon their being so employed is, in effect, a taking of property for public use without compensation, and depriving the citizen of his property- without due process of law. In other words, although the State, in the exercise of her police powers, may lawfully prohibit the manufacture and sale, within her limits, of intoxicating liquors to be used as a beverag^ legislation having that object in view cannot be enforced against those who, at the time, happen to own propertj-, the chief value of which consists in its fitness for such manufacturing purposes, unless com- pensatiou is first made for the diminution in the value of their prop- erty, resulting from such prohibitory enactments. This interpretation of the Fourteenth Amendment is inadmissible. It cannot be supposed that the States intended, by adopting that Amendment, to impose restraints upon the exercise of their powers for the protection of the safetj-, health, or morals of the communitj-. In respect to contracts, the obligations of which are protected against hostile State legislation, this court in Butchers^ Union Co. v. Cres- cent City Co.^ Ill U. S. 746, 751, said that the State could not, by any contract, limit the exercise of her power to the prejudice of the public health and the public morals. So, in Stone v. Mississippi, 101 U. S. 814, 816, where the Constitution was invoked against the repeal by the State of a charter, granted to a private corporation, to conduct a lottery, and for which that corporation paid to the State a valuable consideration in money, the court said : ' ' No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. . . . Government is organ- ized with a view to their preservation, and cannot divest itself of the power to provide for them." Again, in I^eio Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 672: "The constitutional prohibition upon State laws impairing the obligation of contracts does not restrict the power of the State to protect the public health, the public morals, or the public safety, as the one or the other ma3- be involved in the execution of such contracts. Rights and privileges arising from contracts with a State are subject to regulations for the protection of the public health, the public morals, and the public safety, in the same sense, and to the same extent, as are all contracts and all property, whether owned bj' natural persons or corporations." The principle, that no person shall be deprived of life, liberty, or property, without due process of law, was embodied, in substance, in the constitutions of nearly all, if not all, of the States at the time of the adop- CHAP, v.] MUGLEK V. KANSAS. 791 tion of the Fourteenth Amendment ; and it has never been regarded as incompatible with the principle, equally vital, because essential to the peace and safety of society, that all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the communit3% Beer Co. v. Massachusetts, 97 U. S. 25, 32 ; Commonwealth v. Alger, 7 Cush. 53. An illustration of this doctrine is afforded by Patterson v. Kentucky, 97 U. S. 501. . . . [Here follows a statement of this case.] See also United States v. Dewitt, 9 Wall. 41 ; License Tax Cases, 5 Wall. 462 ; Pervear v. Commonwealth, 5 Wall. 475. Another decision, very much in point upon this branch of the case, is Fertilizing Co. v. Hyde Park, 97 U. 8. 659, 667, also decided after the adoption of the Fourteenth Amendment. The court there sustained the validity of an ordinance of the village of Hyde Park, in Cook Countj'^, Illinois, passed under legislative authority, forbidding any person from transporting through that village offal or other offensive or unwholesome matter, or from maintaining or carrying on an offen- sive or unwholesome business or establishment within its limits. The Fertilizing Company had, at large expense, and under authority ex- pressly conferred by its charter, located its works at a particular poiut in the county. Besides, the charter of the village, at that time, pro- vided that it should not interfere with parties engaged in transporting animal matter from Chicago, or from manufacturing it into a fertilizer or other chemical product. The enforcement of the ordinance in ques- tion operated to destroy the business of the company, and seriously to impair the value of its property. As, however, its business had become a nuisance to the community in which it was conducted, producing dis- comfort, and often sickness, among large masses of people, the court maintained the authoritj' of the village, acting under legislative sanc- tion, to protect the public health against such nuisance. It said : " We cannot doubt that the police power of the State was applicable and adequate to give an effectual remedy. That power belonged to the States when the Federal Constitution was adopted. They did not surrender it, and they all have it now. It extends to the entire prop- erty and business within their local jurisdiction. Both are subject to it in all proper cases. It rests upon the fundamental principle that every one shall so use his own as not to wrong and injure another. To regulate and abate nuisances is one of its ordinary functions." It is supposed by the defendants that the doctrine for which they contend is sustained by Pumpelly v. Green Bay Co., 13 Wall. 166. But in that view we do not concur. That was an action for the recov- ery of damages for the overflowing of the plaintifTs land by water, resulting from the construction of a dam across a river. The defence was that the dam constituted a part of the system adopted by the State for improving the navigation of Fox and Wisconsin rivers ; and it was contended that as the damages of which the plaintiff complained were only the result of the improvement, under legislative sanction, of a 792 MUGLER V. KANSAS. [CHAP. V. navigable stream, he was not entitled to compensation from the State or its agents. The case, therefore, involved the question whether the overflowing of tlie plaintiff's land, to such an extent that it became practically' unfit to he used, was a taking of property, within the mean- ing of the Constitution of Wisconsin, providing that "the property of no person shall be taken for public use without just compensation therefor." This court said it would be a very curious and unsatisfactor}' result, were it held that, " if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely,' can inflict irreparable add permanent injury' to any extent, can, in effect, subject it to total destruction, without making any compensation, because, in the narrowest sense of that word, it' is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for the invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors." pp. 177, 178. These principles have no application to the case under consideration. The question in Pumpelly v. Green Bay Company arose under the State's power of eminent domain ; while the question now before us arises under what are, strictly-, tlie police powers of the State, exerted for the protection of the health, morals, and safety- of the people. That case, as this court said in Transportation Co. v. Chicago, 99 U. S. 635, 642, was an extreme qualification of the doctrine, universallj' held, that " acts done in the proper exercise of governmental powers,, and not directly encroaching upon private property, though these con- sequences maj' impair its use," do not constitute a taking within the meaning of the constitutional provision, or entitle the owner of such property to compensation from the State or its agents, or give hina any right of action. It was a case in which there was a "permanent flooding of private propertj-," a " phj'sical invasion of the real estate of the private owner, and a practical ouster of his possession." His propert3- was, in effect, required to be devoted to the use of the public, and, consequenth', he was entitled to compensation. As already stated, the present case must be governed by principles, that do not involve tlie power of eminent domain, in the exercise of which property' may not be taken for public use without compensation. ^ prohibition simpl3- upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public beneflQ Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a 'declaration by the State that its use bj- any one, for certain forbidden purposes, is prejudicial to the public intei'ests.^ Nor can Jegislation of that character come within the Fourteenth Amendment, in any case, CHAP. V.J MUGLEE V. KANSAS. 793 unless it is apparent that its real object is not to protect the commu- nity, or to promote tlie general well-being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. The power which the States have of pro- hibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not — and, con- sistentlj- with the existence and safety of organized society, cannot be — burdened with the condition that the State must compensate such individual owners for pecuniary losses thej' maj- sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the pro- hibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property' for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated ; in the other, unoffending property is taken away from an innocent owner. It is true, that, when the defendants in these cases purchased or erected their breweries, the laws of the State did not forbid the manu- facture of intoxicating liquors. But the State did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged. Indeed, as was said in Stone \. Mississippi, above cited, the supervision of the public health and the pubUc morals is a governmental power, " continuing in its nature," and " to be dealt with as the special exigencies of the moment may require ; " and that, " for this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself." So in Beer Co. v. Massachusetts, 97 U. S. 32 : " If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer." It now remains to consider certain questions relating particularly to the thirteenth section of the Act of 1885. That section — which take.? the place of § 13 of the Act of 1881— .is as follows. . . . [This is given a}ite, p. 784, note.] It is contended by counsel in the case of Kansas v. Ziebold & Hage- lin, that the entire scheme of this section is an attempt to deprive persons who come within its provisions of their property and of their liberty without due process of law ; especially, when taken in connec- tion with that clause of § 14 (amendatory of § 21 of the Act of 1881) which provides that "in prosecutions under this Act, by indictment or otherwise, ... it sliall not be necessary in the first instance for the State to prove that the party charged did not have a permit to sell intoxicating liquors for the excepted purposes." We are unable to perceive anything in these regulations inconsistent with the constitutional guarantees of liberty and property. The State 794 MUGLER V. KANSAS. [CHAP. V. having authority to prohibit the manufacture and sale of intoxicating liquors for other than medical, scientific, and mechanical purposes, we do not doubt her power to declare that any place, kept and maintained for the illegal manufacture and sale of such liquors, shall be rleemed a common nuisance, and be abated, and, at the same time, to provide for the indictment and trial of the offender. One is a proceeding against the property used for forbidden purposes, while the other is for the punishment of the offender. It is said that by the thirteenth section of the Act of 1885, the legis- lature, finding a brewery within the State'in actual operation, without notice, trial, or hearing, by the mere exercise of its arbitrary- caprice, declares it to be a common nuisance, and then prescribes the conse- quences which are to follow inevitably by judicial mandate required by the statute, and involving and permitting the exercise of no judicial discretion or judgment ; that the brewery being found in operation, the court is not to determine whether it is a common nuisance, but, under the command of the statute, is to find it to be one ; that it is not the liquor made, or the making of it, which is thus enacted to be a common nuisance, but the place itself, including all the property used in keep- ing and maintaining the common nuisance ; that the judge having thus signed without inquir3' — and, it may be, contrary to the fact and against his own judgment — the edict of the legislature, the court is commanded to take possession by its officers of the place and shut it up ; nor is all this destruction of property, by legislative edict, to be made as a forfeiture consequent upon conviction of any offence, but merely because the legislature so commands ; and it is done by a court of equitj-, without any previous conviction first had, or anj' trial known to the law. This, certainly, is a formidable arraignment of the legislation of Kansas, and if it were founded upon a just interpretation of her stat- utes, the court would have no difllculty in declaring that they could not be enforced without infringing the constitutional rights of the citizen. But those statutes have no such scope and are attended with no such results as the defendants suppose. The court is not required to give effect to a legislative " decree" or " edict," unless every enactment by the law-making power of a State is to be so characterized. It is not declared that everj' establishment is to be deemed a common nuisance because it may have been maintained prior to the passage of the statute as a place for manufacturing intoxicating liquors. The statute is pro- spective in its operation, that is, it does not put the brand of a common nuisance upon any place, unless, after its passage, that place is kept and maintained for purposes declared by the legislature to be injurious to the community. Nor is the court required to adjudge any place to be a common nuisance simply because it is charged by the State to be such. It must first find it to be of that character ; that is, must ascertain, in some legal mode, whether since the statute was passed the place in question has been, or is being, so used, as to make it a common nuisance. CHAP, v.] MUGLER V. KANSAS. 795 Equallj' untenable is the proposition that proceedings in equity' for the purposes indicated in the thirteenth section of the statute are inoonsistent with due process of law. " In regard to public nui- sances," Mr. Justice Story saj's, " the jurisdiction of courts of equity seems to be of a verj' ancient date, anc] has been distinctly traced bsick to the reign of Queen Elizabeth. Tlie jurisdiction is applicable not only to public nuisances, strictly so called, but also to purprestures upon public rights and property. ... In case of public nuisances, properly so called, an indictment lies to abate them, and to punish the offenders. But an information, -also, lies in equity to redress the griev- ance by way of injunction." 2 Stor^-'s Eq. §§ 921, 922. The ground of this jurisdiction in cases of purpresture, as well as of public nui- sances, is the abilit3' of courts of equity to give a more speedy, effectual, and permanent remedy, than can be had at law. They can not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and, b^' perpetual injunc- tion protect the public against them in the future ; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary juris- diction, especially where a nuisance affects the health, morals, or safety of the communit}'. Though not frequently exercised, the power un- doubtedly exists in courts of equity thus to protect the public against injury. District Attorney v. Lynn and Boston Railroad Co., 16 Graj*, 242, 245 ; Attorney-General v. New Jersey Hailroad, 2 Green, Ch. 139; Attorney- General v. Tudor Ice Co., 104 Mass. 239, 244; State V. Mayor, 5 Porter (Ala.), 279, 294; Soole v. Attorney- General, 22 Ala. 190, 194 ;' Attorney-General v. Hunter, 1 Dev. Eq. 12 ; Attorney- General V. Forbes, 2 Myl. & Cr. 123, 129, 133 ; Attorney- General v. Great Northern Railway Co., 1 Drew. & Sm. 154, 161 ; Eden on Injunctions, 259 ; Kerr on Injunctions (2d ed.), 168. As to the objection that the statute makes no provision for a jurv trial in cases like this one, it is sufficient to say that such a mode of trial is not required in suits in equity brought to abate a public nui- sance. The statutory- direction that an injunction issue at the commence- ment of the action is not to be construed as dispensing with such preliminary proof as is necessary to authorize an injunction pending the suit. The court is not to issue an injunction simply because one is asked, or because the charge is made that a common nuisance is main- tained in violation of law. The statute leaves the court at liberty to give effect to the principle that an injunction will not be granted to restrain a nuisance, except upon clear and satisfactory evidence that one exists. Here the fact to be ascertained was, not whether a place, kept and maintained for purposes forbidden by the statute, was, per se, a nuisance — that fact being conclusively determined by the statute itself — but whether the place in question was so kept and maintained. If the proof upon that point is not full or sufficient, the court can refuse an injunction, or postpone action until the State first obtains the 796 MUGLER V. KANSAS. [CHAP. V. verdict of a jurj' in her favor. In tliis case, it cannot be denied that tlie defendants kept and maintained a place tiiat is within the statutor3- definition of a common nuisance. Their petition for tlie removal of the cause from the State court, and their answer to the bill, admitted every fact necessary to maintain this suit, if the statute, under which it was brought, was constitutional. Touching the provision that in prosecutions, by indictment or otheiv wise, the State need not, in the first instance, prove that the defendant has not the permit required by the statute, we may remark that, if it has any application to a proceeding like titis, it does not deprive him of the presumption that he is innocent of any violation of law. It is only a declaration that when the State has proven that the place described is kept and maintained for the manufacture or sale of intoxicating liquors — such manufacture or sale being unlawful except for specified purposes, and then only under a permit — the prosecution need not prove a negative, namely, that the defendant has not the required license or permit. If the defendant has such license or permit, he can easily produce it, and thus overthrow the prima facie case established by the State. A portion of the argument in behalf of the defendants is to the effect that the statutes of Kansas forbid the manufacture of intoxicating liquors to be exported, or to be carried to other States, and, upon that ground, are repugnant to the clause of the Constitution of the United States, giving Congress power to regulate commerce with foreign nations and among the several States. We need only saj', upon this point, that there is no intimation in the record that the beer which the respective defendants manufactured was intended to be- carried out of the State or to foreign countries. And, without expressing an opinion as to whether such facts would have constituted a good defence, we observe that it will be time enough to decide a case of that; character when it shall come before us.^ For the reasons stated, we are of opinion that the judgments of the Supreme Court of Kansas have not denied to Mugler, the plaintiff in error, any right, privilege, or immunity secured to him by the Consti- tution of the United, iStates, and its judgment, in each case, is, accord- ingly, affirmed. We are, also, of opinion that the Circuit Court of the United States erred in dismissing the bill of the State against Ziebold & Hagelin. The decree in that case is reversed, and the cause remanded,, luith directions to enter a decree granting to the State such relief as the Act of March 7, 1885, authorizes.^ [Field, J., gave a dissenting opinion.J 1 Held, that it would not, in Kidd v. Pearson, 128 U. S. 1 (1888). — Ed. 2 As to the relation between this extensive power of the States and the Constitution and laws of the United States, see Bowman v. Chic. ^ N. W. Ri/. Co., 125 U. S. 465 (1888) ; Leisi/ v. ffardin, 135 U. S. 100 (1890), and In re Rahrer, 140 U. S. 545 (1891). — Ed. CHAP. V.J SMITH V. ALABAMA. 797 In Smith v. Alabama, 124 U. S. 465 (1888), on error to the Supreme Court of Alabama, the validity was in question of a statute of that State requiring all locomotive engineers to be examined and licensed by a State Court. In holding this valid, Matthews, J., for the court, said : " The grant of power to Congress in the Constitution to regulate com- merce with foreign nations and among the several States, it is conceded, is paramount over all legislative powers which, in consequence of not having befen granted to Congress, are reserved to the States. It follows that any legislation of a State, although in pursuance of an acknowl- edged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of commerce, must give -way be- fore the supremacy of the national authority. As the regulation of commerce may consist in abstaining from prescribing positive rules for its conduct, it cannot always be said that the power to regulate is dor- mant because not affirmatively exercised. And when it is manifest that Congress intends to leave that commerce, which is subject to its juris- diction, free and unfettered bj- any positive regulations, such intention would be contravened by State laws operating as regulations of com- merce as much as though these had been expressly forbidden. In such cases, the existence of the power to regulate commerce in Congress has been construed to be not only paramount but exclusive, so as to with- draw the subiect as the basis of legislation altogether from the States. . . . But the provisions on the subject contained in the statute of Ala- bama under consideration are not regulations of interstate commerce. It is a misnomer to call them such. Considered in themselves, they are parts of that body of the local law which, as we have already seen, properly governs the regulation between carriers of passengers and merchandise and the public who employ them, which are not misplaced until they come in conflict with express enactments of Congress in the exercise of its power over commerce, and which, until so displaced, according to the evident intention of Congress, remain as the law gov- erning carriers in the discharge of their obligations, whether engaged in the purely internal commerce of the State or in commerce among the States." 1 1 A like result was reached in Nashville, ^c. Railway v. Ala., 128 TT. S. 96 (1888), in considering another statute of tlie same State requiring, in the case of rarious classes of railroad employees, an examination and a certificate of fitness, as regards color- blindness and defective vision, from a State board of medical men. See Jamieson v. Ind. Nai. Gas Co., 128 Ind. 555. —Ed. 798 CKOWLEY V. CHRISTENSEN. [CHAP. V. CROWLEY V. CHRISTENSEN. Supreme Court or the United States. 1890. [137 U. S. 86.] This was an appeal from an order of the Circuit Court of the United States for the Northern District of California discharging, on habeas corpus, the petitioner for the writ, the appellee here, from the custody of the chief of police of the city and count}' of San Francisco, by whom he was held under a warrant of arrest issued by the Police Court of that municipality, upon a charge of having engaged in and carried on in that city the business of selling spirituous, malt, and fermented liquors and wines in less quantities than one quai't, without the license required by the ordinance of the city and countj-. The ordinance referred to provided that every person who sold such liquors or wines in quantities less than one quart should be designated as " a retail liquor-dealer" and as "a grocer and retail liquor-dealer," and that no license as such liquor-dealer, after January 1, 1886, "shall be issued bj- the collector of licenses, unless the person desiring the same shall have obtained the written consent of a majority of the Board of Police Commissioners of the city and county of San Francisco to carry on or conduct said busi- ness ; but, in case of refusal of such consent, upon application, said Board of Police Commissioners shall grant the same upon the written recommendation of not less than twelve citizens of San Francisco own- ing real estate in the block or square in which said business of retail liquor-dealer or grocery and retail liquor-dealer is to be carried on ; " and that such license should be issued for a period of only three montlis. The ordinance further declared that any person violating this provision should be deemed guilty of a misdemeanor. The Constitution of California provides, in the eleventh section of Article 11, that " any country, city, town, or township may make and enforce within its limits all such local, police, sanitaiy, and other regu- Jations as are not in conflict with general laws." The petitioner had, previously to June 10, 1889, carried on the busi- ness of retail liquor-dealer in San Francisco for some years, under licenses from the Board of Police Commissioners, but his last license was to expire on the 17th of that month. Previously to its expiration he was informed bj- the Polige Commissioners that they had withdrawn their consent to the further issue of a license to him. He afterwards tendered to the collector of license fees, through which oflScer it was the practice of the Board to issue the licenses, the sum required for a new license, but the tender was not accepted, and his application for a new license was refused. He then applied to the Police Commissioners for a hearing before them on the question of revoking their consent to the issue of a further license to liim. Such hearing was accorded to him, and the time fixed for it was the 24th of June. But, before any hearing CHAP, v.] CROWLEY V. CHEISTENSEN. 799 was had, he was arrested upon a warrant of the Police Court upon the charge of carrying on the business of a retail liquor-dealer without a license. He then obtained from the Supreme Court of the State a writ of habeas corpus to be discharged from the arrest, but that court, on the 2d of August, 1890, held the ordinance valid and remanded him to the custody of the chief of police. He then applied for the allowance of an appeal from this order to the Supreme Court of the United States, but it was refused by the Chief Justice of the State Court, and the Associate Justice of the Supreme Court of the United States assigned to the circuit, who could have allowed the appeal, was absent from the State. On the 7th of August following a new complaint was made against the petitioner, charging him with unlawfully engaging in and carrying on in San Francisco the business of a retail liquor-dealer with- out a license under the ordinance of the city and county. Upon this complaint a warrant was issued under which he was arrested. He there- upon applied to the Circuit Court of the United States for a writ of habeas corpus, which was issued. In return to the writ, the chief of police, the appellant here, stated that he held the petitioner under the warrant mentioned by the petitioner and several other warrants issued by the Police Court of the city and county, upon different charges, made at different times, of his conduct- ing and carrying on the business of a retail liquor-dealer in San Fran- cisco without a license, as required by the ordinance of the city and county. He also stated, among other things, that a further license to the petitioner was refused by the Police Commissioners, because they had reason to believe that the business was carried on by him under his existing license in such a manner as to be offensive, and violative of the criminal laws of the State and of the rights of others. In support of this charge it was averred that in that business the petitioner was assisted by one whom he represented and claimed to be his wife, and that she had on one occasion stolen one hundred and sixtj- dollars from a person who visited his saloon, and been convicted of the offence in the Superior Court of the city and county, and sentenced to be imprisoned for one' year, and on another occasion had stolen a watch and a scarf-pin from a person at the saloon, and was held to answer for the charge. It was also averred that there were more than sixteen citizens of San Francisco owning real estate in the block on whicli the petitioner carried on his business. It did not appfear that on the hearing of the application an}' proof was offered of the facts alleged either in the petition or in the return. The case was heard upon exceptions or demurrer to the return. To that part respecting the alleged larceny by the wife and her convic- tion, the demurrer was on the ground that the return also showed ihat an appeal had been taken from the conviction, which was then pending, and that she might be acquitted of the offence charged. Several objections were urged by the petitioner to the ordinance. Some of them were of a technical character, and could not be considered. Of the others only one was noticed, which was, that by it "the State of 800 CEOWLEY V, CHEISTENSEN. [CHAP. V. California, bj- its officers, denies to him the equal protection Of the laws, and makes and enforces against him a law which abridges his privileges and immunities as a citizen of the United States," contrary to the Fourteenth Amendment to the Constitution of the United States. The court held that the ordinance made the business of the petitioner depend upon the arbitrary will of others, and iu that respect denied to him the equal protection of the laws, and accordingly ordered his dis- charge. 43 Fed. Rep. 243. From that order the case was brought to this court by appeal under §§ 763 and 764 of the Revised Statutes, this latter section as amended by the Act of M&rch 3, 1886, c. 353, 23 Stat. 437. Mr. Davis Louderhack and Mr. J. D. Page, for appellant. Mr. Alfred Glarhe and Mr. Joseph D. Redding, for appellee. Me. Justice Field, after stating the case as above, delivered the opinion of the court. It is undoubtedly true that it is the right of every citizen of the United States to pursue any lawful trade or business, under such restrictions as are imposed upon all persons of the same age, sex, and condition. But the possession and enjo3-ment of all rights are subject to such reason- able conditions as m&y be deemed bj- the governing authorit}' of the countiy essential to the safety, health, peace, good order, and morals of the comm.unit}-. Even liberty itself^ the greatest of all rights, is not Unrestricted license to act according to one's own will. It is only free- dom from restraint under conditions essential to the equal enjo^-ment of the same right bj- others. It is then liberty regulated b}- law. The right to acquire, enjoy, and dispose of propertj- is declared in the Con- stitutions of several States to be one of the inalienable rights of man. But this declaration is not held to preclude the legislature of anj- State from passing laws respecting the acquisition, enjoyment, and disposition of propertj-. What contracts respecting its acquisition and disposition shall be valid and what void or voidable ; when they shall be in writing and when thcj- may be made orally ; and b}- what instruments it ra&y be conveyed or mortgaged are subjects of constant legislation. And as to the enjoyment of property-, therule is general that it must be accom- panied with such limitations as will not impair the equal enjoj'meiit by others of their property. Sic utere tuo ut alienum non Imdas is a maxim of universal application. For the pursuit of anj- lawful trade or business, the law imposes simi- lar conditions. Regulations respecting them are almost infinite, varying with the nature of the business. Some occupations bj' the noise made in their pursuit, some bj' the odors they engender, and some by the dan- gers accompanying them, require regulations as to the locality in which they shall be conducted. Some by the dangerous character of the articles used, manufactured, or sold require, also, special qualifications in the parties permitted to use, manufacture, or sell them. All this is but common knowledge, and would hardly be mentioned were it not for the position often taken, and vehemently pressed, that there is something CHAP, v.] CROWLEY V. CHRISTENSEN. 801 wrong in principle and objectionable in similar restrictions wiien applied to the business of selling by retail, in small quantities, spirituous and intoxicating liquors. It is urged that, as the liquors are used as a bev- erage, and the injury following them, if taken in excess, is voluntarily inflicted and is confined to the party offending, their sale should be without restrictions, the contention being that what a man shall drink, equally with what he shall eat, is not properh' matter for legislation. There is in this position an assumption of a fact which does not exist, that when the liquors are taken in excess the injuries are confined to the party offending. The injur,y, it is true, first falls upon him in his health, which the habit undermines ; in his morals, which it weakens ; and in the self-abasement which it creates. But, as it leads to neglect of busi- ness and waste of propertj' and general demoralization, it affects those who are immediately connected with and dependent upon him. By the general concurrence of opinion of every civilized and Christian com- munity, there are few sources of crime and misery to society equal to the dram shop, where intoxicating liquors, in small quantities, to be drunk at the time, are sold indiscriminately to all parties applying. The statistics of ever^' State show a greater amount of crime and miserj' attributable to the use of ardent spirits obtained at these retail liquor saloons than to any other source. The sale of such liquors in this way has therefore been, at all times, by the courts of every State, considered as the proper subject of legislative regulation. Not only may a license be exacted from the keeper of the saloon before a glass of his liquors can be thus disposed of, but restrictions may be imposed as to the class of persons to whom they may be sold, and the hours of the day and the days of the week on which the saloons may be opened. Their sale in that form may be absolutely prohibited. It is a question of public ex- pediency and public morality, and not of Federal law. The police power of the State is fully competent to regulate the business — to mitigate its evils or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail ; it is not a privi- lege of a citizen of the State or of a citizen of tiie JCJnited States. As it is a business attended with danger to the community it may, as already said, be entirely prohibited, or be permitted under such conditions as will li]nit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority. That authority mav vest in such officers as it may deem proper the power of passing upon applications for permission to carry it on, and to issue licenses for that purpose. It is a matter of legislative will only. As in many other cases, the oflHcers may not always exercise the power conferred upon them with wisdom or justice to the parties affected. But that is a mat- ter which does not aflTect the authority of the State ; nor is it one which can be brought under the cognizance of the courts of the United States. The Constitution of California vests in the municipality of the city and county of San Francisco the right to make " all such local, police, VOL. I. — 51 802 CROWLEY V. CHRISTENSEN. [CHAP. V. sanitary, and otber regulations as are not in conflict with general laws." The Supreme Court of the State has decided that the ordinance in ques- tion, under which the petitioner was ari-ested and is held in custody, was thus authorized and is valid. That decision is binding upon us unless some inhibition of the Constitution or of a law of the United States is violated b^' it. We do not perceive that there is anj- such violation. The learned Circuit Judge ^ saw in the provisions of the ordinance em- powering the poUce commissioners to grant or refuse their assent to the application of the petitioner for a license, or failing to obtain their assent upon application, requiring it to be given upon the recommenda- tion of twelve citizens owning real estate in the block or square in which his business as a retail dealer in liquors was to be carried on, the delegation of arbitrary discretion to the police commissioners, and to real estate owners of the block, which might be and was exercised to deprive the petitioner of the equal protection of the laws. And he considers that his view in this respect is supported by the decision in Tick Wo V. Hopkins, 118 U. S. 356. In that case it appeared that an ordinance of the cit3' and countj- of San Francisco passed in Juh', 1880, declared that it should be unlawful after its passage " for any person or persons to establish, maintain, or carry on a laundry within the corporate limits of the city and county of San Francisco without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone." The ordinance did not limit the power of the super- visors to grant such consent, where the business was carried on in wooden buildings. It left that matter to the arbitrarj- discretion of the board. Under the ordinance the consent of the supervisors was refused to the petitioner to carrj- on the laundrj- business in wooden buildings, where it had been conducted by him for over twenty years. He had, at the time, a certificate from the board of fire wardens that his premises had been inspected b^' them, and upon such inspection they had found all proper arrangements for carrj'ing on the business, and that all proper precautions had been taken to comply with the provisions of the ordi- nance defining the fire limits of the city and count}' ; and also a certifi- cate from the health oflScer that the premises had been inspected hy him and were properlj- and sufHcicnth' drained, and that all proper arrange- ments for carrying on the business of a laundry without injurj- to the sanitary- conditions of the neighborhood had been complied with. The limits of the city and count}- embraced a territorj' some ten miles wide by fifteen or more in length, much of it being occupied at the time, as stated by the Circuit Judge, as farming and pasture lands, and much of it being unoccupied sand banks, in many places without buildings within a quarter or half a mile of each other. It appeared also that, in the practical administration of the ordinance, consent was given bj' the board of supervisors to some parties to carry on the laun- ^ For his opinion, see In re Christensen, 43 Fed. Bep. 243. — Ed. CHAP. V.J CROWLEY V. CHEISTENSEN. 803 dry business in buildings other than those of brick or stone, but that all applications corning from the Chinese, of whom the petitioner was one, to carry on the business in such buildings were refused. This court said of the ordinance : '• It allows without restriction the use for such pur- poses of buildings of brick or stone ; but, as to wooden buildings, constituting nearly all those in previous use, it divides the owners or occupants into two classes, not having respect to their personal character and qualifications for the business, nor the situation and nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of which are those who are permitted to pursue their indus- try by the mere will and consent of the supervisors, and, on the other, those from whom that consent is withheld, at their mere will and pleas- ure. And both classes are alike only in this, that they are tenants at will, under the supervisors, of their means of living. The ordinance, therefore, also differs from the not unusual case, where discretion is lodged by law in public officers or bodies to grant or withhold licenses to keep taverns, or places for the sale of spirituous liquors and the like, when one of the conditions is that the applicant shall be a fit person for the exercise of the privilege, because in such cases the fact of fitness is submitted to the judgment of the officer, and calls for the exercise of a discretion of a judicial nature." It will thus be seen that that case was essentially different from the one now under consideration, the ordinance there held invalid vesting uncontrolled discretion in the board of supervisors with reference to a business harmless in itself and useful to the commnnit}' ; and the dis- cretion appearing to have been exercised for the express purpose of depriving the petitioner of a privilege that was extended to others. In the present case the business is not one that any person is permitted to carry on without a license, but one that may be entirely prohibited or subjected to such restrictions as the governing authority of the city may prescribe. It would seem that some stress is placed upon the allegation of the petitioner that there were not twelve persons owners of real property in the block where the business was to be carried on. This allegation is denied in the return, which alleges that there were more than sixteen such property holders. As the case was heard upon exceptions or de- murrer to the return, its averments must be taken as true. At common law no evidence was necessary to support the return. It was deemed to import verity until impeached. Hurd on Hahens Corpus, book 2, c. 3, §§ 8, 9, and 10 ; Church on Same, § 122. And this rule is not changed by any statute of the United States. It must, tlierefore, be considered as a fact in the case that there were more than sixteen owners of real estate in the block. But if the fact were otherwise, and there was not the number stated in the petition, the result would not be affected. If there were no property holders in the block, tlie discretionarj' autlioritj- would be exercised finally by the police commissioners, and their refusal to grant the license is not a matter for review by this court, as it violates 804 BUDD V. NEW YORK. [CHAP. T. no principle of Fedei'al law. We however find in the return a statement which would fully justify- the action of the commissioners. It is averred that in the conduct of the liquor business the petitioner was assisted bj- his wife, and that she was twice arrested for larcenies committed from persons visiting his saloon, and in one case convicted of the offence and sentenced to be imprisoned, and in the other held to answer. These larcenies alone were a suflBcient indication of the character of the place in which the business was conducted, for the exercise of the discre- tion of the police commissioners in refusing a further license to the petitioner. ♦ The order discharging the petitioner must be Reversed, and the cause remanded with directions to take further proceedings in conformity with this opinion, and it is so ordered.^ BUDD V. NEW YORK. NEW YORK EX KEL. ANNAN v. WALSH. NEW YORK EX KEL. PINTO v. WALSH. Supreme Court of the United States. 1892. [143 U.S. 517.]^ '[Error to the Superior Court of Buffalo, New York, and to the Supreme Court of New York.j Mr. Benjamin F. Tracy and Mr. William N". Dykman, for Annan and Pinto, plaintiffs in error. Mr. Spencer Clinton, for Budd, plaintiff in error. Mr. J. A. JSyland, for the defendants in error in 644 and 645. Mr. George T. Quinhy filed a brief for the defendants in error in 719 IBuddY. iV. Z.]. Mr. Justice Blatchford, after stating the case,^ delivered the opinion of the court. The main question involved in these cases is whether this court will adhere to its decision in Munn v. Illinois, 94 U. S. 113. The Court of Appeals of New York, in I'eople v. JBudd, 117 N. Y. 1, held that chapter 581 of the laws of 1888 did not violate the consti- tutional guarantee protecting private propertj", but was a legitimate exercise of the police power of the State over a business affected with a public interest. In regard to the indictment against Budd, it held 1 See Ex parte Sing Lee, 96 Cal. 3.'54 (1892). Compare Chic. Ri/. Co. v. Minn.,ante, p. 660, and note, p. 673. In Sharp v. Wakefield, [1891] Appeal Cases, 173, 182, a case relating to licenses for selling intoxicating liquors. Lord Bramwell said : " Houses of public entertainment and for the sale of drink have been in this country, and in ■many others, the subject of regulation for police purposes ; not for what one may call economic purposes, like the fixing of the price of bread or the wages of labor, but for the maintenance of order." — Ed. 2 The facts are sufficiently given in the opinion. — Ed. CHAP, v.] B.UDD V. NEW YORK. 805 that the charge of exacting more than the statute rate for elevatuig was proved, and that as to the alleged overcharge for shovelling, it appeared that the carrier was compelled to pay $4 for each 1000 bushels of grain, which was the charge of the shovellers' union, by which the work was performed, and that the union paid the elevator, for the use of the latter's steam shovel, $1.75 for each 1000 bushels. The court held that there was no error in submitting to the jury the question as to the overcharge for shovelling ; that the intention of tlie statute was to confine the charge to the " actual cost" of the outside labor required ; and that a violation of the Act in that particular was proved ; but that, as the verdict and sentence were justified by proof of the overcharge for elevating, even if the alleged overcharge for shovelling was not made out, the ruling of the Superior Court of Buiifalo could not have prejudiced Budd. Of course, this court, in these eases, can consider only the Federal questions involved. It is claimed, on behalf of Budd, that the statute of the State of New York is nneonstitutioual, because contrary to the provisions of section 1 of the Fourteenth Amendment to the Constitution of the United States, in depriving the citizen of his property without due process of law ; that it is unconstitutional in fixing the maximum charge for elevating, receiving, weighing and discharging grain by means of floating and stationary elevators and warehouses at five- eighths of one cent a bushel and in forbidding the citizen to make any profit upon the use of his property or la,bor ; and that the police power of the State extends onl}' to propertj' or business which is devoted by its owner to the public, by a grant to the public of the right to demand its use. It is claimed on behalf of Annan and Pinto that floating and stationary elevators in the port of New York are private property, not affected with any public interest, and not subject to the regnlation of rates. "Trimming" in the canal-boat, spoken of in the statute, is shovel- ling the grain from one place to another, and is done by longshoremen with scoops or shovels ; and " trimming" the ship's cargo when load- ing is stowing it and securing it for the voyage. Floating elevators are primarily boats. Some are scows, and have to be towed from place to place by steam tugs ; but the majority are propellers. When the floating elevator arrives at the ship and makes fast alongside of her, the canal-boat carrying the grain is made fast on the other side of the elevator. A long wooden tube, called " the' leg of the elevator," and spoken of in the statute, is lowered from the tow^r of the elevator so that its lower end enters the hold of the canal-boat in the midst of the grain. The "spout" of the elevator is lowered into the ship's hold. The machinery of the elevator is then set in motion, the grain is elevated out of the canal-boat, received and weighed in the elevator, and discharged into the ship. The grain is lifted in " buckets " fastened to an endless belt which moves up and down in the leg of the elevator. The lower end of the leg is buried in the grain so that the buckets are 806 BUDD V. NEW YOEK. [CHAP. V, submerged in it. As the belt moves, each bucket goes up full of grain, and at the upper end of the leg, in the elevator tower, empties its con- tents into the hopper which receives the grain. The operation would cease unless the grain was trimmed or shovelled to the leg as fast as it is carried up by the buckets. There is a gang of longshoremen wlio shovel the grain from all parts of the hold of the canal-boat to " the leg of the elevator," so that the buckets may be always covered with grain at the lower end of the leg. This "trimming or shovelling to tlie leg of the elevator," when the canal-boat is unloading, is that part of the work which the elevator owner is required to do at the " actual cost." In the Budd and Pinto cases, the elevator was a stationar}' one on land ; and in the Annan case, it was a floating elevator. In the Budd case, the Court of Appeals held that the words " actual cost," used in the statute, were intended to exclude any charge bj- the elevator be- yond the sum specified, for the use of its machinerj' in shovelling, and the ordinar}' expenses of operating it, and to confine the charge to the actual cost of the outside labor required for trimming and bringing the grain to the leg of the elevator ; and that the purpose of tlie statute could be easily evaded and defeated if the elevator owner were per- mitted to separate the services, and charge for the use of the steam shovel any sum which might be agreed upon between him and the shovellers' union, and thereby, under color of charging for the use of his steam shovel, exact from the carrier a sum for elevating beyond the rate fixed therefor by the statute. The Court of Appeals, in its opinion in the Budd case, considered fully the question as to whether the legislature had power, under the Constitution of the State of New York, to prescribe a maximum charge for elevating grain bj' stationary- elevators, owned b3- individuals or corporations who had appropriated their property' to that use and were engaged in that business; and it answered the inquiry in the aflflrma- tive. It also reviewed the case of Munn v. Illinois, 94 U. S. 113, and arrived at the concliisioh that this court there held that the legislation in question in that case was a lawful exercise of legislative power, and did not infringe that clause of the Fourteenth Amendment to the Con- stitution of the United States which provides that no State shall ' ' deprive any person of life, liberty or property without due process of law ; " and that the legislation in question in that case was similar to, and not distinguishable in principle from, the Act of the State of New York. In regard to Munn v. Illinois, the Court of Appeals said that the question in that case was raised by an individual owning an elevator and warehouse in Chicago, erected for, and in connection with which he had carried on, the business of elevating and storing grain, many years prior to the passage of the Act in question, and prior also to the adoption of the amendment to the Constitution of Illinois in 1870, declaring all elevators and warehouses, where grain or other property CHAP, v.] BUDD V. NEW YORK. 807 is stored for a compensation, to be public warehouses. The Court of Appeals then cited the eases of People ex rel. etc. v. B. & A. B. B. Co., 70 N. Y. 669 ; Bertholfv. O'Beilhj, 74 N. Y. 509 ; if. H. S. B. B. Co. V. B. S. B. B. Co., Ill N. Y. 132 ; and People v. Kinr/, 110 N. Y. 418, as cases in which Munn v. Illinois had been referred to by it, and said that it could not overrule and disregard Munn v. Illinois without subverting the principle of its own decision in People v. King, and eertainlj' not without disregarding man^- of its deliberate expres- sions in approval of the principle of Munn v. Illinois. The Court of Appeals further examined the question whether the power of the legislature to regulate the charge for elevating grain, where the business was carried on by individuals upon their own premises, fell within the scope of the police powt'r, and wliether the statute in question was necessary for the public welfare. ^Jt affirmed that, while no general power resided in the legislature to regulate private business, prescribe the conditions under which it should be conducted, fix the price of commodities or services, or interfere with freedom of contract, and while the merchant, manufacturer, artisan and laborer, under our system of government, are left to pursue and provide for their own interests in their own wa^-, untrammelled by burdensome and restrictive regulations, which, however common in rude and irregular times, are inconsistent with constitutional liberty, yet there might be special conditions and circumstances which brought the business of elevating grain within principles which, by the common law and the practice of free governments, justified legislative control and regulation in the particular -case, so that the statute would be con- stitutional ; that the control which, hy common law and by statute, was exercised over common carriers, was conclusive upon the point that the right of the legislature to regulate the charges for services in connection with the use of property did not depend in every case upon the question whether there was a legal monopoly-, or whether special governmental privileges or protection had been bestowed ;^that there were elements of publicity in the business of elevating grain which peculiarly affected it with a public interest; that those elements were found in the nature and extent of tlie business, its relation to the com- merce of the State and country, and the practical monopoly enjoyed by those engaged in itj that about 120,000,000 bushels of gr.ain come annually to Buffalo from the West ; that the business of elev.ating grain at Buffalo is connected m.niiily with lake and canal transporta- tion ; that the grain received at New York in 1887 by way of the Erie Canal and Hudson River, during the season of canal navigation, exceeded 46,000,000 bushels, an amount very largely in excess of the grain received during the same period by rail and by river and coast- wise vessels ; that the elevation of that grain from lake vessels to canal-boats takes place at Buffalo, where there are thirty or forty ele- vators, stationary and floating ; that a large proportion of the surplus cereals of the country passes through the elevators at Buffalo Snd flndsp' 808 BUDD V. NEW YORK. [CHAP. V. its way through the Erie Canal and Hudson River to the seaboard at New York, whence it is distributed to the markets of the world ; that the business of elevating grain is an incident to the business of trans- portation, the elevators being indispensable instrumentalities in the business of the common carrier, and in a broad sense performing the work of carriers^ being located upon or adjacent to the waters of the State, and transferring the cargoes of grain from the lake vessels to the canal-boats, or from the canal-boats to the ocean vessels, and thereby performing an essential service in transportation ; that by their means the transportation of grain b3* water from the upper lakes to the seaboard is rendered possible ; that the business of elevating grain thus has a vital relation to commerce in one of Its most impor- tant aspects ; that every excessive charge made in the course of the transportation of grain is a tax upon commerce^ that the public has a deep interest that no exorbitant charges shall be exacted at any point, upon the business of transportation ; and that whatever impaired the usefulness of the Erie Canal as a highwaj- of commerce involved the public intei'esA The Court of Appeals said that, in view of the foregoing exceptional circumstances, the business of elevating grain was affected with a pub- lic interest, within the language of Lord Chief Justice Hale, in his treatise De Portibus Maris (Harg. Law Tracts, 78) ; that the case fell within the principle which permitted the legislature to regulate the business of common carriers, ferrymen and hackmen, and interest on the use of money ; that the underlying principle was, that business of ■ certain kinds holds such a peculiar relation to the public interest that there is superinduced upon it the right of public regulation ; and that the court rested the power of the legislature to control and regulate elevator charges upon the nature and extent of the business, the exis- tence of a virtual monopol3-, the benefit derived from the Erie Canal's creating the business and making it possible, the interest to trade and commerce, the relation of the business to the property and welfare of the State, and the practice of legislation in analogous cases, collectively creating an exceptional case and justifying legislative regulation. The opinion further said that the criticism to which the case of Munn v. Illinois had been subjected proceeded mainly upon a limited and strict construction and definition of the police power ; that there was little reason, under our system of government, for placing a close and narrow interpretation on the police power, or restricting its scope so as to hamper the legislative power in dealing with the varying necessities of society and the new circumstances as thej- arise calling for legislative intervention in the public interest ; and that no serious invasion of constitutional guarantees by the legislature could withstand for a long time the searching influence of public opinion, which was sure to come sooner or later to the side of law, order and justice, how- ever it might have been swayed for a time by passion or prejudice, or whatev^ aberrations might have marked its course. CHAP, v.] BUDD V. NEW YOKK. 809 We regard these views which we have referred to as announced by the Court of Appeals of New York, so far as they support the validity of the statute in question, as sound and just. . . ". This court, in Munn v. Illinois, the opinion being delivered by Chief Justice Waite, and there being a published dissent by only two justices, considered carefully the question of the repugnancy of the Illinois statute to the Fourteenth Amendment. It said, that under the powers of government inherent in every sovereignty, "the government regu- lates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation be- comes necessary for the public good ; " and that, " in their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, etc., and in. so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold." It was added: "To this day, statutes are to be found in many of the States upon some or all these subjects ; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions ngainst interference with private property-." It announced as its conclusions that, down to the time of the adoption of the Four- teenth Amendment, it was not supposed that statutes regulating the use, or even the price of the use, of private property- necessarily de- prived an owner of his propertj' without due process of law ; that, when private property was devoted to a public use, it was subject to public regulation ; that Munn and Scott, in conducting the business of their warehouse, pursued a public employment and exercised a sort of public oflSce, in the same sense as did a common carrier, miller, ferry- man, innkeeper, wharfinger, baker, cartman or hackney coachman ; that they stood in the very gateway of commerce and took toll from all who passed ; that their business tended " to a common charge," and had become a thing of public interest and use ; that the toll on the grain was a common charge ; and that, according to Lord Chief Justice Hale, every such warehouseman " ought to be under a public regula- tion, viz.," that he " take but reasonable toll." This court further held in Munn v. Elinois, that the business in question was one in which the whole public had a direct and positive interest ; that the statute of Illinois simply extended the law so as to meet a new development of commercial progress ; that there was no attempt to compel the owners of the warehouses to grant the public an interest in their property, but to declare their obligations if they used it in that particular manner ; that it mattered not that Munn and Scott had built their warehouses and established their business before the regulations complained of were adopted; that, the property being clothed with a public interest, what was a reasonable compensation for its use was not a judicial, but a legislative question ; that, in countries where the common law prevailed, it had been customary from time 810 BUDD V. NKW YORK. [CHAP. V. immemorial for the legislature to declare what should bn a reasonable compensation under such circumstances, or to fix a maximum be^'ond which any charge made would be unreasonable ; that the warehouses of Munn and Scott were situated in Illinois and their business was' carried on exclusivel}' in that State ; that the warehouses were no more necessarily a part of commerce itself than the dra^- or the cart by which, but for them, grain would be transferred from one railroad station to another ; that their regulation was a thing of domestic con- cern ; that, until Congress acted in reference to their interstate rela- tions, the State might exercise all the powers of government over them, even though in so doing it might operate indirectly upon com- merce outside its immediate jurisdiction ; and that the provision of § 9 of article 1 of the Constitution of the United States operated onl^' as a limitation of the powers of Congress, and did not affect the States in the regulation of their domestic affairs. The final conclusion of the court was, that the Act of Illinois was not repugnant to the Constitu- tion of the United States ; and the judgment was afHrmed. In Sinhing Fund Cases, 99 U. S. 700, 747, Mr. Justice Bradley, who was one of the justices who concurred in the opinion of the court in Munn v. Illinois, speaking of that case, said: '4The inquiry there was as to the extent of the police power in cases where the public interest is affected ; and we held that when an emploj-ment or business becomes a matter of such public interest and importance as to create a common charge or burden upon the citizen ; in other words, when it becomes a practical monopoly, to which the citizen is compelled to resort, and by means of which a tribute can be exacted from the com- munity, it is subject to regulation bj' the legislative poweA' Although this was said in a dissenting opinion in Sinking Fund Cases, it shows what Mr. Justice Bradley regarded as the principle of the decision in Munn V. Illinois. In Spring Valley Water Works v. Schottler, 110 U. S. 847, 354, this court said : " That it is within the power of the government to regulate the prices at which water shall be sold by one who enjoj's a virtual monopoly- of the sale, we do not doubt. That question is settled by what was decided on full consideration in Munn v. Illinois, 94 U. S. 113. As was said in that case, such regulations do not de- prive a person of his propertj- without due process of law." In Wabash &c. Railway Co. v. Illinois, 118 U. S. 557, 669, Mr. Justice Miller, who had concurred in the judgment in Munn v. Illi7iois, referred, in delivering the opinion of the court, to that case, and said : "That case presented the question of a private citizen, or unincorpo- rated partnership, engaged in the warehousing business in Chicago, free from any claim of right or contract under an Act of Incorporation of any State whatever, and free from the question of continuous trans- portation through several States. And in that case the court was pre- sented with the question, which it decided, whether any one engaged in a public business, iu which all the public had a right to require his CHAP, v.] BUDD V. NEW YORK. 811 service, could be regulated b}' Acts of the Legislature in the exercise of this public function and public duty, so far as to limit the amount of charges that should be made for such services." In Dow V. Beidelman, 125 U. S. 680, 686, it was said b^- Mr. Justice Graj', in delivering the opinion of the court, that in Munn v. Illinois the court, after affirming the doctrine that by the common law carriers or other persons exercising a public emploj'ment could not charge more than a reasonable compensation for their services, and that it is within the power of the legislature " to declare what shall be a reason- able compensation for such services, or perhaps, more properly speak- ing, to fix a maxjmum beyond which an^- charge made would be un- reasonable," said that to limit the rate of charges for services rendered in the public employment, or for the use of property in which the pub- lic has an interest, was only changing a regulation which existed be- fore, and established no new principle in the law, but onlj' gave a new eflfeet to an old one. In Chicago &c. Railway Co. v. Minnesota, 134 U. S. 418, 461, it was said by Mr. Justice Bradley, in his dissenting opinion, in which Mr. Justice Gray and Mr. Justice Lamar concurred, that the decision of the court in 'that case practically overruled Munn v. Illinois j but the opinion of the court did not say so, nor did it refer to Munn v. Illinois ; and we are of opinion that the decision in the case in 134 U. S. is, as will be hereafter shown, quite distinguishable from the present cases. It is thus apparent that this court has adhered to the decision in Munn v. Elbiois and to the doctrines announced in the opinion of the court in that case ; and those doctrines have since been repeatedlj- en- forced in the decisions of the courts of the States. In Railway v. Railway, 30 Ohio St. 604, 616, in 1877, it was said, citing Munn v. Illinois : " When the owner of property devotes it to a public use, he, in effect, grants to the public an interest in such use, and must, to the extent of the use, submit to be controlled bj- the pub- lic, for the common good, as long as he maintains the use." That was a decision by the Supreme Court Commission of Ohio. In State V. Gas Company, 34 Oliio St. 572, 582, in 1878, Munn v. Illinois was cited with approval, as holding that where the owner of property devotes it to a use in which the public have an interest, he in effect grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public, for the common good, so long as he maintains the use ; and the court added that in Munn v. Illinois the principle was applied to warehousemen engaged in receiving and storing grain ; that it was held that their rates of charges were subject to legislative regulation ; and that the principle applied with greater force to corporations when they were invested with franchises to be exercised to subserve the public interest. The Supreme Court of Illinois, in Ruggles v. People, 91 Illinois, 256, 262, in 1878, cited Munn v. People, 69 Illinois, 80, which was 812 BUDD V. NEW YORK. [CHAP. V. aflBrmed in Munn v. Elinois, as holding that it was competent for the General Assembly to fix the maximum charges by individuals keeping public warehouses for storing, handling and shipping grain, and that, too, when such persons had derived no special privileges from the State, but were, as citizens of the State, exercising the business of storing and handling grain for individuals. The Supreme Court of Alabama, in Davis v. The State, 68 Ala- bama, 58, in 1880, held that a statute declaring it unlawful, within certain counties, to transport or move, afte^ sunset and before sunrise of the succeeding da^-, any cotton in the seed, but permitting the owner or purchaser to remove it from the field to a place of storage, was not unconstitutional. Against the argument that the statute was such a despotic interference with the rights of private property- as to be tan- tamount, in its practical effect, to a deprivation of ownership " without due process of law," the court said that the statute sought only to regulate and control the transportation of cotton in one particular con- dition of it, and was a mere police regulation, to which there was no constitutional objection, citing Munn v. Illinois. It added, that the object of the statute was to regulate traflSc in the staple agricultural product of the State, so as to prevent a prevalent evil, which, in the opinion of the law-making power, might do much to demoralize agri- cultural labor and to destroy the legitimate profits of agricultural pur- suits, to the public detriment, at least within the specified territorj-. In Baker v. The State, 54 Wisconsin, 368, 373, in 1882, Munn v. Illinois was cited with approval hy the Supreme Court of Wisconsin, as holding that the Legislature of Illinois had power to regulate public warehouses, and the warehousing and inspection of grain within that State, and to enforce its regulations b^- penalties, and that such legis- lation was not in conflict with anj* provision of the Federal Constitution. The Court of Appeals of Kentucky, in 1882, in Nash v. Page, 80 Kentucky, 539, 545, cited Munn v. Illinois, as applicable to the case of the proprietors of tobacco warehouses in the city of Louisville, and held that the character of the business of the tobacco warehousemen was that of a public employment, such as made them subject, in their charges and their mode of conducting business, to legislative regulation and control, as having a practical monopoly of the sales of tobacco at auction. In 1884, the Supreme Court of Pennsylvania, in Girard Storage Co. V. Southwark Co., 105 Penn. St. 248, 252, cited Munn v. Illinois as involving the rights of a private person, and said that the principle involved in the ruling of this court was, that where the owner of such property as a warehouse devoted it to a use in which the public had an interest, he in eflfect granted'to the public an interest in such use, and must, therefore, to the extent thereof, submit to be controlled by the public for the common good, as long as he maintained thaft use. In Sawyer v. Davis, 136 Mass. 239, in 1884, the Supreme Judicial Court of Massachusetts said that nothing is better established than the CHAP, v.] BUDD V. NEW YOKK. 813 power of the legislature to make what are called police regulations, declaring in wliat manner property shall be used and enjo^-ed and busi- ness carried on, with a view to the good order and benefit of the com- munity, even though they may interfere to some extent with the full enjoyment of private property, and although no compensation is given to a person so inconvenienced ; and Miinn v. Illinois was cited as holding that the rules of the common law which had from time to time been establislied, declaring or limiting the right to use or enjoy prop- erty, might themselves be changed as occasion might require. The Supreme Court of Indiana, in 1885, in Brechbill v. Randall, ... 102 Indiana, 528, held that a statute was valid which required persons selling patent rights to file with the clerk of the county a copy of the patent, with an afl3davit of genuineness and authority to sell, on the ground that the State had power to make police regulations for the pro- tection of its citizens against fraud and imposition ; and the court cited Mann v. Illinois as authority. The Supreme Court of Nebraska, in 1885, in Webster Telephone Case, 17 Nebraska, 126, held that when a corporation or person as- sumed and undertook to supply a public demand, made necessary by the requirements of the commerce of the country, such as a public tele- phone, such demand must be supplied to all alike, without discrimina- tion ; and Munn v. Illinois was cited by the prevailing party and by the court. The defendant was a corporation, and had assumed to act in a capacity which was to a great extent public, and had undertaken to satisfy a public want or necessity, although it did not possess any special privileges by statute or any monopoly of business in a given territory ; yet it was held that, from the very nature and character of its business, it had a monopoly of the business which it transacted. The court said that no statute had been deemed necessary to aid the courts in holding that where a person or company undertook to supply a public demand, which was " affected with a public interest," it must supply all alike who occupied a like situation, and not discriminate in favor of or against any. In Stone v. Yasoo & Miss. Valley B. Co., 62 Mississippi, 607, 639, the Supreme Court of Mississippi, in 1885, cited Munn v. Illinois as deciding that the regulation of warehouses for the storage of grain, owned by private individuals, and situated in Illinois, was a thing of domestic concern and pertained to the State, and as aflSrming the right of the State to regulate the business of one engaged in a public employ- ment therein, although that business consisted in storing and trans- ferring immense quantities of grain in its transit from the fields of production to the markets of the world. In Hockett v. The State, 105 Indiana, 250, 258, in 1885, the Su- preme Court of Indiana held that a statute of the State which pre» scribed the maximum price which a telephone company should charge for the use of its telephones was constitutional, and that in legal con- templation all the instruments and appliances used by a telephone 814 BUDD V. NEW YORK. [CHAP. V. compan}' in the transaction of its business were devoted to a public use, and the propertj' thus devoted became a legitimate subject of legislative regulation. It cited Munn v. Illinois as a leading case in support of that proposition, and said that although that case had been the subject of comment and criticism, its authority as a precedent re- mained unshaken. This doctrine was confirmed in Central Union Telephone Co. v. Bradbury, 106 Indiana, 1, in the same j'ear, and in Central Union Telephone Co. v. The State, 118 Indiana, 194, 207, in 1888, in which latter case Munn v. Illinois was cited by the court. In Chesapeake & Potomac Telephone 'Vo. v. Balto. & Ohio Tele- graph Co., 66 Maryland, 399, 414, in 1886, it was held that the tele- graph and the telephone were public vehicles of intelligence, and those who owned or controlled them could no more refuse to perform im- partially the functions which they had assumed to discharge than a railway company, as a common carrier, could rightfully refuse to per- form its dutj- to the public ; and that the legislature of the State had full power to regulate the services of telephone companies, as to the parties to whom facilities should be furnished. The court cited Munn v. Illinois, and said that it could no longer be controverted that the legislature of a State had full power to regulate and control, at least within reasonable limits, public emploj-ments and property used in connection therewith ; that the operation of the telegraph and the tele- phone in doing a general business was a public emploj-ment, and the instruments and appliances used were property devoted to a public use and in which the public had an interest ; and that, such being the case, the owner of the propert}- thus devoted to public use must submit to have that use and employment regulated bj- public authoritj- for the common good. In the Court of Chancerj- of New Jersey, in 1889, in Delaware, &c. Hailroad Co. v. Central Stock-Yard Co., 45 N. J. Eq. 60, 60, it was held that the legislature had power to declare w"hat services warehouse- men should render to the public, and to fix the compensation that might be demanded for such services ; and the court cited Munn v. Illinois as properly holding that warehouses for the storage of grain must be regarded as so far public in their nature as to be subject to legislative control, and that when a citizen devoted his property to a use in which the public had an interest, he in effect granted to the public an interest in that use, and rendered himself subject to control, in that use, by the body politic. In Zanesville v. Gas-Light Company, 47 Ohio St. 1, in 1889, it was said by the Supreme Court of Ohio, that the principle was well estab- lished, that where the owner of proi)erty devotes it to a use in which the public have an interest, he in effect grants to the public an interest in such use, and must to the extent of that interest submit to be con- trolled by the public for the common good, as long as he maintains the use ; and that such was the point of the decision in Munn v. Illinois, CHAP, v.] BUDD V. NEW YORK. 815 We must regard the principle maintained in Munn v. Illinois as firmly established; and we think' it covers the present cases, in respect to the charge for elevating, receiving, weighing and discharging the grain, as well as in respect to the charge for trimming and shovelling to the leg of the elevator when loading, and trimming the cargo when loaded. If the shovellers or scoopers chose, they might do the shovel- ling by hand, or might use a steam-shovel. A steam-shovel is owned by the elevator owner, and the power for operating it is furnished by the engine of the elevator ; and if the scooper uses the steam-shovel, he paj's the elevator owner for the use of it. The answer to the suggestion that by the statute the elevator owner is forbidden to make any profit from the business of shovelling to the leg of the elevator is that made by the Court of Appeals of New York in the case of Budd, that the words " actual cost," used in the statute, were intended to exclude any charge by the elevator owner, beyond the sum specified for the use of his machinery in shovelling and the ordinary expenses of operating it, and to confine the charge to the actual cost of the outside labor required for trimming and bringing the grain to the leg of the elevator; and that the purpose of the statute could be easily evaded and defeated if tiie elevator owner was permitted to separate the services, and to charge for the use of his steam-shovel any, sum which might be agreed upon between himself and tJie sliovellers' union, and thereby, under color of charging for the use of his steam-shovel, to exact of the carrier a sum for elevating be- yond the rate fixed by the statute. We are of opinion that the Act of the Legislature of New York is not contrary to the Fourteenth Amendment to the Constitution of the United States, and does not deprive the citizen of his propertj- without due process of law ; that the Act, in fixing the maximum charges which it specifies, is not unconstitutional, nor is it so in limiting the charge for shovelling to the actual cost thereof; and that it is a proper exer- cise of the police power of the State. On the testimony in the cases before us the business of elevating grain Is a business charged with a public interest, and those who carry it on occupy a relation to the eommunitj' analogous to that of common carriers. The elevator owner, in fact, retains the grain in his custod\- for an appreciable period of time, because he receives it into his cus- tody, weighs it, and then discharges it, and his employment is thus analogous to that of a warehouseman. In the actual state of the busi- ness the passage of the grain to the city of New York and other places on the seaboard would, without the use of elevators, be practically im- possible. The elevator at Buffalo is a link in the chain of transporta- tion to the seaboard, and the elevator in the harbor of New York is a like link in the transportation abroad bj' sea. The charges made bj- the elevator influence the price of grain at the point of destination on the seaboard, and that influence extends to the prices of grain at the places abroad to which it goes. The elevator is devoted by its owner, 816 BUDD V. NEW YORK. [CHAP. V. who engages in the business, to a use in which the public has- an inter- est, and he must submit to be controlled by public legislation for the common good. It is contended in the briefs for the plaintiffs in error in the Annan and Piuto cases that the business of the relators in handling grain was wholly- private, and not subject to regulation by law ; and that thej- had received from the State no charter, no privileges and no immunitj-, and stood before the law on a footing with the laborers they employed to shovel grain, and were no more subject to regulation than any other individual in the community. But these same facts existed in Munn V. Illinois. In that case, the parties offending were private individuals, doing a private business, without anj' privilege or monopoly granted to them by the State. Not only is the business of elevating grain aflfected with a public interest, but the records show that it is an actual monop- oly, besides being incident to the business of transportation and to that of a common cari'iev, and thus of a quasi-public character. The Act is also constitutional as an exercise of the police power of the State. So far as the statute in question is a regulation of commerce, it is a regulation of commerce only on the waters of the State of New York. It operates only within the limits of that State, and is no more ob- noxious as a regulation of interstate commerce than vyas the statute of Illinois in respect to warehouses, in Munn v. Illinois. It is of the same character with navigation laws in respect to navigation within the State, and laws regulating wharfage rates within the State, and other kindred laws.'' . . . In the cases before us, the records do not show that the charges fixed by the statute are unreasonable, or that property has been taken without due process of law, or that there has been anj- denial of the equal protection of the .laws ; even if under any circumstances we could determine that the maximum rate fixed by the legislature was unreasonable. In Georgia Banldng Co. v. Smith, 128 U. S. 174, 179, in the opinion of the court, delivered by Mr. Justice Field, it was said that this court had adjudged in numerous instances that the legislature of a State had the power to prescribe the charges of a railroad companj' for the carriage of persons and merchandise within its limits, in the absence of any contract to the contrar3', subject to the limitation that the carriage is not required without reward, or upon conditions amount- ing to the taking of propertj- for public use without just compensation, and that what is done does not amount to a regulation of foreign or interstate commerce. It is further contended for the plaintiffs in error that the statute in question violates the Fourteenth Amendment, because it takes from the elevator owners the equal protection of the laws, in that it applies 1 For a passage omitted here, see ante, p* 671. — Ed. CHAP. V.J LAWTON V. STEELE. 817 only to places which have 130,000 population or more, and does not apply to places which have less than 130,000 population, and thus operates against elevator owners in the larger cities of the State. The law operates equally on all elevator owners in places having 130,000 population or more ; and we do not perceive how they are deprived of the equal protection of the laws, within the meaning of the Fourteenth Amendment. Judgments affirmed. [Brewer, J., gave a dissenting opinion in which Field, J., and Brown, J., concurred.] LAWTON V. STEELE. Supreme Court of the United States. 1894. [14 Sup. Court Rep. 499.] In error to the Supreme Court of the State of New York. This was an action at law instituted in tlie Supreme Court for the county of Jefferson by the plaintiffs in error against the defendant in error, together with Edward L. Sargent and Richard U. Sherman, for the conversion of fifteen hoop and fyke nets of the alleged value of $525. Defendants Steele and Sargent interposed a general denial. Defendant Sherman pleaded that he, with three others, constituted the "Commissioners of Fisheries" of the State of New York, with power to give directions to game and fish protectors with regard to the enforce- ment of the game law ; that defendant Steele was a game and fish pro- tector, duly appointed by the Governor of the State of New York, and that the nets sued for were taken possession of by said Steele, as such game and fish protector, upon the ground that they were maintained upon the waters of the State in violation of existing statutes for the protection of fish and game, and therebj' became a public nuisance. The facts were undisputed. The nets were the property of the plain- tiffs, and were taken away by the defendant Steele, and destroyed. At the time of the taking, most of the nets were in the waters of the Black River Bay, being used for fishing purposes, and the residue were upon the shore of that baj', having recentlj' been used for the same purpose. The plaintiffs were fishermen, and the defendant Steele was a State game and fish protector. The taking and destruction of the nets were claimed to have been justifiable under the statutes of the State relating to the protection of game and fish. Plaintiffs claimed there was no justification under the statutes, and if they constituted such justifica- tion upon their face, they were unconstitutional. Defendant Sherman was a State Fish Commissioner. Defendant Sargent was President of the Jefferson County Fish and Game Association. Plaintiffs claimed these defendants to be liable upon the ground that they instigated, incited, or directed the taking and destruction of the nets. VOL. I. — 52 818 LAWTON V. STEELE. [CHAP. V. Upon trial before a jun' a verdict was rendered, subject to the opin- ion of tlie court, in favor of the plaintiffs against defendant Steele for the sum of $216, and in favor of defendants Sargent and Slierraan. A motion for a new trial was denied, and judgment entered upon the verdict for $216 damages and $166.09 costs. On appeal to the General Tei-m this judgment was reversed, and a. new trial ordered, and a fur- ther appeal allowed to the Court of Appeals. On appeal to the Court of Appeals, the order of the General Term granting a new trial was aflSrmed, and judgment absolute ordered for the defendant. 119 N. Y. 226. Plaintiffs thereupon sued out a writ of error from this court. Xein H. Brown, for plaintiffs in error. JSlon R. Brown, for defendant in error. Mr. Justice Bkown, after stating the facts in the foregoing language, delivered the opinion of the court. This case involves the constitutionalitj- of an Act of the Legislature of the State of New York known as chapter 591, Laws of New York of 1880, as amended by chapter 317, Laws of New York of 1883, entitled " An Act for the Appointment of Game and Fish Protectors." By a subsequent Act enacted in 1886 : " Section 1. No person shall at any time kill or take from the waters of Henderson Baj' or Lake Ontario, within one mile from the shore, between the most westerly point of Pillar Point and the boundary line between the counties of Jefferson and Oswego, . . . any flsh of anj- kind by any device or means whatever otherwise than bj' hook and line or rod held in hand. But this section shall not applj- to or prohibit the catching of minnows for bait, providing the person using nets for that purpose shall not set them, and shall throw back anj- trout, bass, or any other game fish taken, and keep only chubs, dace, suckers, or shiners. " See. 2. Any person violating anj' of the provisions of this Act shall be guilty of a misdemeanor, and liable to a penalty of $50 for each offence." Laws, 1886, c. 141. By the Act of 1880, as amended by the Act of 1883 : "Sec. 2. Any net, pound, or other means or device for taking or capturing fish, or wherebj' the}- raa}- be taken or captured, set, put, floated, had, found, or maintained, in or upon anj- of the waters of this State, or upon the siiores of or islands in any of the waters of this State, in violation of anj' existing or hereafter enacted statutes or laws for the protection of flsh, is herebj- declared to be, and is, a public nuisance, and ma}' be abated and summaril}- destroj'ed bj- any person, and it shall be the duty of each and every protector aforesaid and of ever}' game constable to seize and remove and forthwith destroy the same, . . . and no action for damages shall lie or be maintained against an}' person for or on account of any such seizure and destruction.'' This last section was alleged to be unconstitutional and void for three reasons : (1) as depriving the citizen of his property without due CHAP. V.J LAWTON V. STEELE. 819 process of law ; (2) as being in restraint of the liberty of the citizen ; (3) as being an interference with the admiralty and maritime jurisdiction of the United States. The trial court ruled tlie first of the above propositions in plaintiffs' favor, and tlie others against them, and judgment was thereupon entered in favor of the plaintiffs. The constitutionality of the section in question was, however, sus- tained by the General Term and by the Court of Appeals, upon the ground of its being a lawful exercise of the police power of the State. The extent and limits of what is known as the "police power" have been a fruitful subject of discussion in the appellate courts of nearly avery State in the Union. It is universally conceded to include eveiT- thing essential, to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that the State may order the destruction of a house falling to decay, or otherwise endangering the lives of passers-by ; the demolition of such as are in the path of a conflagration ; the slaughter of diseased cattle ; the destruction of decayed or unwholesome food ; the prohibition of wooden buildings in cities ; the regulation of railways and other means of public conveyance, and of interments in burial-grounds ; the restriction of objectionable trades to certain localities ; the compulsory- vaccination of children; the confinement of the insane or those afflicted -with conta- gious diseases; the restraint of vagrants, beggars, and habitual drunk- ards ; the suppression of obscene publications and houses of ill fame ; and the prohibition of gambling-houses and places where intoxicating liquors are sold. Be^-ond this, however, the State ma3' interfere wlier- ever the public interests demand it, and in this particular a large dis- cretion is necessarily vested in the legislature to determine, not only what the interests of thTe public require, but what measures are neces- sary for the protection of such interests. Sarhier v. Connolly, 113 U. S. 27; Kicldx. Pearson, 128 U. S. 1. Cfo justify the State in thus interposing its authorit3' in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference ; and, second, that the means are reasonabl3' necessarj- for the .lecomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarilj' interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a prmier exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts. . . . [Here reference is made to Henderson v. Mayor, 92 U. S. 259 ; Chy Lung v. Freeman, 92 U. S. 265 ; R. R. Co. v. Hnsen, 95 U. S. 465 ; Rochmell v. Mar- ing, 35 N. Y. 302 ; Austin v. Murray, 16 Pick. 121 ; Watertown v. Mayo, 109 Mas.s. 315 ; The Slaughter-House Cases, 16 Wall. 36 ; In re Cheesebrough, 78 N. Y. 232 ; and Brown v. Perkins, 12 Gray, 89 .] 820 LAWTON V. STEELE. [CHAP. V. The preservation of game and fish, however, has alwaj-s been treated as withui the proper domain of the police power, and laws limiting the season within which birds and wild animals may be killed or exposed for sale, and prescribing the time and manner in which fish ma}' be caught, have been repeatedly upheld by the courts. Thns in Smith v. Maryland, 18 How. 71, it was held that the State had a right to pro- tect its fisheries in Chesapeake Bay by making it unlawful to take or capture oj'sters with a scoop or drag, and to inflict the penalt}- of for- feiture upon the vessel employed in this pursuit. The avowed object of tlie Act was to prevent the destruction of the, oysters bj- the use of particular instruments in taking them. " It does not touch," said the court, "the subject of the common liberty of taking oysters save for the purpose of guarding it from injury to whom it m&y belong and by whomsoever it may be enjoyed." It was held that the right of for- feiture existed, even though the vessel was enrolled for the coasting trade under the Act of Congress. So in Smith v. Levinus, 8 N. Y. 472, a similar Act was held to be valid, although it vested certain legis- lative powers in boards of supervisors, authorizing them to make laws for the protection of shell and other fisli. In Slate v. Hoberts, 59 N. H. 256, which was an indictment for taking fish out of navigable waters out of the season prescribed by statute, it was- said by the court: "At common law the right of fishing in navigable waters was common to all. The taking and selling of certain kinds of fish and game at certain sea- sons of the j-ear tended to the destruction of the privilege or right by the destruction consequent upon the unrestrained exercise of the right. This is regarded as injurious to the communitj', and, therefore, it is within the authority- of the legislature to impose restriction and limita- tion upon the time and manner of taking fish and game, considered valuable as articles of food or merchandise. For this purpose fish and game laws are enacted. The power to enact snch laws has long been exercised, and so benefieiall}' for the public that it ought not now to be called into question.^ Commonwealth v. C/iapm, 5Pick. 199 ; McCready V. Virginia, 94 U. S. 391 ; Vinton v. Welsh, 9 Pick. 92 ; Common- wealth V. Essex Co., 13 Gray, 248 ; Phelps v. Bacey, 60 N. T. 10 ; Holyohe Co. v. Lyman, 15 Wall. 500 ; Gentile v. State, 29 Ind. 409 ; State V. Lewis, 33 N. E. R. 1024. As the waters referred to in the Act are unquestionably within the jurisdiction of the State of New York, there can be no valid objection to a law regulating the manner in which fishing in these waters shall be carried on. Hoolter v. Cummings, 20 Johns. 91. The duty of pre- serving the fisheries of a State from extinction, b^- prohibiting exhaus- tive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the j'oung as well as the mature fish, is as clear as its powerto secure to its citizens, as far as possible, a supply of any other wholesome food. The main, and only real difficulty connected with the Act In question is in its declaration that any net, &c., maintained in violation of any CHAP, v.] LAWTON V. STEELE. 821 law for the protection of fisheries, is to be treated as a public nuisance, " and may be abated and summarily destroyed by any person, and it shall be the duty of each and ever3' protector aforesaid and every game constable to seize, remove, and forthwith destroy the same." The legislature, however, undoubtedly possessed the power not onl^' to pro- hibit fishing by nets in these waters, but to make it a criminal offence, and to take such measures as were reasonable and necessary' to prevent such offences in the future. It certainly could not do this more effec- tually than by destroying the means of the offence. If the nets were being used in a manner detrimental to the Interests of the public, we think it was within the power of the legislature to declare them to be nuisances, and to authorize the officers of the State to abate then^ Hart V. The Mayor, 9 Wend. 571 ; Meeker v. Van Rensselaer, 15 Wend. 397. An Act of the Legislature which has for its object the preserva- tion of the public interests against the illegal depredations of private individuals ought to be sustained, unless it is plainly violative of the Constitution, or subversive of private rights. In this ease there can be no doubt of the right of the legislature to authorize judicial proceedings to be taken for the condemnation of the nets in question, and their sale or destruction by process of law. Congress has assumed this power in a large number of cases, by authorizing the condemnation of property' which has been made use of for the purpose of defrauding the revenue. Examples of this are vessels illegally registered or owned, or employed in smuggling or other illegal traffic ; distilleries or breweries illegally carried on or operated, and buildings standing upon or near the boundary line between the United States and anotlier country, and used as depots for smuggling goods. In all these cases, however, the forfeiture was decreed by judicial proceeding. But where the property is of little value, and its use for the illegal purpose is clear, the legislature may declare it to be a nuisance, and subject to summarj' abatement. In- stances of this are the power to kill diseased cattle ; to pull down houses in the path of conflagrations ; the destruction of decayed fruit or fish or unwholesome meats, of infected clothing, obscene books or pictures, or instruments which can only be used for illegal purposes. While the legislature has no right arbitrarily to declare that to be a nuisance which is clearly not so, a good deal must be left to its discretion in that regard, and if the object to be accomplished is conducive to the public interests, it may exei-cise a large liberty of choice in the means em- ployed. Newark, &c. R'wy Co. v. Hunt, 50 N. J. Law, 308 ; Blasier v. Miller, 10 Hun, 435 ; Mouse's Case, 12 Coke, 62 ; Stone v. The Mayor, 25 Wend. 173 ; Am. Print Works v. Lawrence, 21 N. J. Law, 248; Same v. Saw.e, 23 Id. 590. It is not easy to draw the line between cases where property illegally used may be destroyed summarily and where judicial proceedings are necessary for its condemnation. If the property were of great value, as, for instance, if it were a vessel employed for smuggling or other illegal purposes, it would be putting a dangerous power in the hands of 822 LAWTON V. STEELE. [CHAP. V- a custom ofHcer to perinit him to sell or destroy it as a public nuisance, and the owner would have good reason to complain of such act as depriving him of his property without due process of law. ^ut where the propertj' is of trifling value, and its destruction is necessarj- to effect the object of a certain statute, we think it is within the power of tlie legislature to order its summary abateraent.1 For instance, if the legis- lature should prohibit the killing of fish by explosive shells, and should ^order the cartridges so used to be destroyed, it would seem like belittling the dignity of the judiciary to require such destruction to be preceded by a solemn condemnation in a courfe of justice. The same remark might be made of the cards, chips, and dice of a gambling-room. The value of the nets in question was but $15 apiece. The cost of condemning one (and the use of one is as illegal as the use of a dozen), by judicial proceedings, would largely exceed the value of the net, and doubtless tlie State would, in many cases, be deterred from executing the law by the expense. Thej- could only be removed from the water with difficulty, and wei'e liable to injury in the process of removal. The object of the law is undoubtedly a beneficent one, and the State ought not to be hampered in its enforcement by the application of con- stitutional provisions which are intended for the protection of substan- tial rights of property. It is evident that the efficacy of this statute would be ver3' seriously impaired by requiring every net illegal!}' used to be carefully taken from the water, carried before a court or magis- trate, notice of the seizure to be given hy publication, and regular judi- cial proceedings to be instituted for its condemnation. There is not a State in the Union which has not a constitutional pro- vision entitling persons charged with crime to a trial b^- jurj', and j-et from time immemorial the practice has been to try persons charged with pett}- offences before a police magistrate, who not only passes upon the question of guilt, but metes out the proper punishment. This has never been treated as an infraction of the Constitution, though techni- cally a person may in this way be deprived of his liberty without the intervention of a jury. Callan v. Wilson, 127 U. S. 540, and cases cited. So the summary abatement of nuisances without judicial process or proceeding was well known to the common law long prior to the adoption of the Constitution, and it has never been supposed that the constitutional provision in question in this case was intended to inter- fere with the established principles in that regard. Nor is a person whose property is seized under the Act in question without his legal remedy. If in fact his property has been used in vio- lation of the Act, he has no just reason to complain ; if not, he may replevy his nets from the officer seizing them, or, if they have been destroyed, may have his action for their value. In such cases the bur- den would be upon the defendant to prove a justification under the statute. As was said by the Supreme Court of New Jersey in a simi- lar case (Am. Print Works v. Lawrence, 21 N. J. Law, 248, 259) : "The party is not, in point of fact, deprived of a trial by jury. The CHAP, v.] LAWTON V. STEELE. 823 evidence necessary to sustain the defence is cLianged. Even if the party were deprived of a trial by jury, tiie statute is .not, tlierefore, necessarily unconstitutional." Indeed, it is scarcely possible that any actual injustice could be done in the practical administration of the Act. It is said, however, that the nets are not ih themselves a nuisance, but are perfectly lawful acts of manufacture, and are ordinarily used for a lawful purpose. This is, however, by no means a conclusive answer. Many articles, such, for instance, as cards, dice, and other articles used for gambling purposes, are perfectly harmless in themselves, but may become nuisances by being put to an illegal use, and in such cases fall within the ban of the law and may be summarily' destroyed. It is true that this rule does not always follow from the illegal use of a harmless article. A house may not be torn down because it is put to an illegal use, since it may be as readily used for a lawful purpose {Ely\. Supervisors, 36 N. Y. 297), but where minor articles of personal property are de- voted to such use the fact that they may be used for a lawful purpose would not deprive the legislature of the power to destroy them. The power of the legislature to declare that which is perfectly iimocent in itself to be unlawful is beyond question {People v. West, 106 N. Y. 293), and in such case the legislature may annex to the prohibited act all the incidents of a criminal offence, including the destruction of prop- erty denounced by it as a public nuisance. In Weller v. Snover, 42 N. J. Law, 341, it was held that a fish war- den for a county, appointed by the Governor, had the right, under an Act of the Legislature, to enter upon land and destroy a fish basket con- structed in violation of the statute, together with the materials of which it was composed, so that it might not again be used. It was stated in that case that " after a statute has declared an invasion of a public right to be a nuisance it may be abated by the destruction of the object used to effect it. The person who, with actual or constructive notice of the law, sets up such nuisance cannot sue the oflScer whose duty it has been made by the statute to execute its provisions." So in Wil- liams v. Blackwall, 2 H. & C. 33, the right to take possession of or destroy any engine placed or used for catching salmon in contravention of law was held to extend to all persons, and was not limited to con- servators or officers appointed under the Act. It is true there are several cases of a contrary purport. Some of these cases, however, may be explained upon the ground tiiat the prop- erty seized was of considerable value {leek v. Anderson, 57 Cal. 251, boats as well as nets ; Dunn v. Burleigh, 62 Me. 24, teams and sup- plies in lumbering ; King v. Hayes, 80 Me. 206, a horse) — in others the court seems to have taken a more technical view of the law than the necessities of the case or an adequate protection of the owner required. Lowry v. Rainwater, 70 Mo. 152 ; State v. Bobbins, 124 Ind. 308 ; Bidgeway v. West, 60 Ind. 371. Upon the whole, we agree with the Court of Appeals in holding this > 824 LAWTON V. STEELE. [CHAP. V. Act to be constitutional, and the judgment of the Supreme Court is, therefore . Affirmed. Mr. Chief Justice Fuller (with whom concurred Mr. Justice Field and Mr. Justice Brewer) dissenting. In my opinion the legislation in question, so far as it authorizes the summary destruction of fishing-nets and prohibits any action for dam- ages on account of such destruction, is unconstitutional. ■ Fishing-nets are in themselves articles of property entitled to the pro- tection of the law, and I am unwilling to concede to the legislature of a State the power to declare them public nuisances, even when put to use in a manner forbidden by statute, and on that ground to justify their abatement by seizure and destruction without process, notice, or the observance of anj' judicial form. The police power rests upon necessity- and the right of self-protection but private property cannot be arbitrarily invaded under the mere guise of police regulation, nor forfeited for the alleged violation of law bj- its owner, nor destroyed by way of penalty inflicted upon him, without opportunity to be heard. It is not doubted that the abatement of a nuisance must be limited to the necessity of the occasion, and, as the illegal use of flshing-nets would be terminated by their withdrawal from the water and the public be fully protected hy their detention, the lack of necessity for the arbi- trary proceedings prescribed seems to me too obvious to be ignored. Nor do I perceive that the difficulty which may attend their removal, the liability to injury in the process, and their comparatively small value ordinarily, aflect the principle, or tend to show their summary destruc- tion to be reasonably essential to the suppression of the illegal use. Indeed, I think that that argument is to be deprecated as weakening the importance of the preservation, without impairment in ever so slight a degree, of constitutional guarantees. I am, therefore, constrained to withhold my assent to the judgment just announced, and am authorized to saj' that Mr. Justice Field and Mr. Justice Brewer concur in this dissent.^- 1 See State v. Lewis, 33 N. E. Rep. 1024 (Ind., April, 1893), holding valid a statute making it criminal to have in one's possession a gill net or seine, with certain excep- tions. And so as to gaming implements, Hastings v. Haug, 85 Mich. 87 (1891). — Ed. CHAP, v.] GODDAED, PETITIONEE. 825 GODDARD, Petitionee. Supreme Judicial Court of Massachusetts. 1835. [16 Pick. 504.] Petition for a certiorari to the Municipal Court for the city of Boston. In January 1835, the citj- marshal of Boston made a complaint to the Police Court, in the name of the Commonwealth, against Goddard, as the occupant of a house and lot of land situate on Kingston Street, in the city of Boston, and not in that part of the city called South Boston, for neglecting and refusing to remove the snow from the sidewalk in Kingston Street, adjacent to his land. The defendant was sentenced to pay a fine and costs, and he appealed to the Municipal Court. At the trial in that court it was admitted, that the facts alleged in the complaint were true. S. D. Parker, County Attornej', and Ji. R. Curtis, in support of the complaint, read the 17th section of the city ordinance passed on August 22, 1883, viz., that " the tenant, occupant, and in case there shall be no tenant, the owner of anj' building or lot of land bordering on an^' street, lane, court, or public place within tlie city (excepting that part of the city called South Boston), where there is any footway or sidewalk, shall after the ceasing to fall of any snow, if in the day time, within six hours, and if in the night time, before two of the clock in the afternoon succeeding, cause the same to be removed therefrom ; and in default thereof shall forfeit and pay a sum not less than one dollar, and not more than four dollars, for each and every day that the same shall afterwards remain on such footway or sidewalk ; " also, the clause from the loth section of the city charter (St. 1821, c. 110,) which declares, " that the mayor and aldermen and common council of the said city shall have power to make all such needful and salutary by-laws, as towns, by the laws of this Commonwealth, have power to make and establish ; and to annex penalties, not exceeding twenty dollars, for the breach thereof;" also the clause in St. 1785, c. 75, § 7, which empowers the inhabitants of any town " to make and agree upon such necessary rules, orders, and by-laws for the direct- ing, managing, and ordering the prudential affairs of such towns, as they shall judge most conducive to the peace, welfare and good order thereof." . . . The defendant's counsel moved the court to instruct the jury, that the by-law in question was inoperative and void. . . . Bui the judge instructed the juiy that the by-law was valid and effectual. . . . The jury found a verdict against the defendant, and he was sentenced to pay a fine of four dollars and costs of suit. The defendant filed exceptions to the instructions of the judge, and now petitioned for a certiorari in order that the sentence might be reversed. 826 GODDAR0, PETITIONER. [cHAP. V. Bartlett insisted on the exceptions. C. P. Curtis, in beiialf of tlie cit}- of Boston. Shaw, C. J., delivered the opinion of the court. No question is nmde of the facts in this case, but it is conceded, that the petitioner did not clear the sidewalk in front of his land, in the manner required by the bj--law of the city, and he justifies this on the ground that the" law itseli is invalid and of no binding force. For the purpose of having this question deliberately considered, and for the purpose of taking several exceptions to the course of proceedings, the petitioner has prayed for a writ of certiorari to the Municipal Court. . . . 3. Another, and perhaps the most important objection, is, that the by-law is one imposing a tax or duty upon the citizens, and it is a vio- lation of the Constitution in this, that it is partial, and unequal, and contravenes that fundamental maxim of our social system, that all burdens and taxes laid on the people for the public good shall be equal. But the court are all of opinion, that the by-law in question is not obnoxious to this objection. It is not spfiaking strictly, to characterize this citj' ordinance as a law levying a tax, the direct or principal object of which is, the raising of revenue. It imposes a dut3' upon a large class of persons, the perform- ance of which requires some labor and expense, and therefore indirectly operates as a law creating a burden. But we think it is rather to be regarded as a police regulation, requiring a duty to be performed, highly salutary and advantageous to the citizens of a populous and closely built city, and which is imposed upon them because they are so situated as that they can most promptlj* and conveniently perform it, and it is laid, not upon a few, but upon a numerous class, all those who are so situated, and equally' upon all who are within the description composing the class. It is said to be unequal, because it singles out a particular class of citizens, to wit, the owners and occupiers of real estate, and imposes the dut}' exclusively upon them. If this were an arbitrary selection of a class of citizens, without ref- erence to their peculiar fitness and ability to perform the dut3-, the objection would have great weight, as for instance, if the expense of clearing the streets of snow were imposed upon the mechanics, or mer- chants, or anj' other distinct class of citizens, between whose conveni- ence and accommodation, and the labor to be done, there is no natui-al relation. But suppose there is a class of citizens wiio will themselves commonly derive a benefit from the performance of some public duty, we can see no inequality in requiring that all those who will derive such benefit, shall by a general and equal law be required to do it. Supposing a bj'-law should require every inhabitant, who keeps a cart, truck or other team, or a coach or other carriage, to turn out himself or send a man, with one or more horses, after each heavy fall of snow, to assist in levelling it. Although other citizens would derive a benefit, CHAP, v.] GODDAED, PETITIONER. 827 yet as these derive some peculiar benefit, accompanied with the ability, I can at present perceive no valid objection to a by-law requiring it, on the ground of inequality. Supposing a general regulation, that at certain seasons of the j'ear, every shopkeeper should sprinkle the side- walk in front of his own shop, or sweep it, inasmuch as he has a peculiar benefit, and as the duty is equal upon all who come within the descrip- tion, it seems to us to be equal, in the sense in which the law requires all such burdens to be equal. And it appears to us that the case before us is similar. Although the sidewalk is part of the public street, and the public have an easement in it, yet the adjacent occupant often is the owner of the fee, and generallj' has some peculiar interest in it, and benefit from it, distinct from that which he enjoj's in common with the rest of the community. He has this interest and benefit, often in accommodating his cellar-door and steps, a passage for fuel, and the passage to and from his own house to the street. To some purposes, therefore, it is denominated his sidewalk. For his own accommodation, he would have an interest in clearing the snow from his own door. The owners and occupiers of house-lots and other real-estate, therefore, have an interest in the performance of this duty, peculiar and somewhat distinct from that of the rest of the community. Besides, from their situation, they have the power and ability to perform this duty, with the promptness which the benefit of the com- munity requires, and the duty is divided, distributed and apportioned upon so large a number, that it can be done promptly and effectually, and without imposing a verj' severe burden upon any one. Supposing a by-law should require, what is often done, in practice, that upon an alarm of fire in the night, all householders, on streets leading to and near the fire, should exhibit a light. This would seem to be reasonable. Or that all the owners or occupiers of dweUing-houses, having a well and pump, should keep them in repair at their own expense, to be used in case of fire. It would operate partially, but it seems to us not unequal, in the sense in which we are using that term. The city might keep persons ready in every street, to light torches and fiambeaux in case of fire, and the expense be paid from the treasury ; still, it appears to me, that as householders would derive a benefit from the operation of this general regulation, as their local situation puts it peculiarly within their power and ability to perform it without great expense, and as it is equal in its terms, it would not be obnoxious to the charge of being invalid for partiality and inequality. In all these cases the answer to the objection of partiality and ine- quality is, that the duty required is a duty upon the person in respect to the property which he holds, occupies and enjoys, under'the protection and benefit of the laws, that it operates upon each and all in their turns, as they become owners or occupiers of such estates, and it ceases to be required of them, when they cease to be thus holders and occupiers of the estate, in respect to which the duty is required. In this respect it is like a land tax, or house tax, it does not bear upon owners of per- 828 GKIDLEY V. BLOOMINGTON. [CHAP. V. sonal property, and therefore does not bear upon all citizens alike, but is not on that account unequal or partial, in the sense contemplated by the Declaration of Eights, requiring all taxes and burdens to be equal and impartial. The court are all of opinion, that as a bj'-law, the regulation in ques- tion was a reasonable one, that it was not repugnant to the Constitution or laws of the Commonwealth, and that the conviction was right. Petition dismissed. GEIDLEY V. BLOOMINGTON. Supreme Court of Illinois. 1878. [88 III. 554.] Appeal from the Circuit Court of McLean County. Complaint, under oath, was made, charging that defendant permitted snow to remain upon the sidewalk abutting on premises occupied by him as a "wood and stable lot," contraiy to an ordinance of the citj' which provides, that "whoever, being the occupant of anj' occupied premises, or the owner of anj' vacant premises, shall suffer any snow to remain on any sidewalk or footway adjacent thereto longer than six hours from the time it ceases falling, or if the cessation be in the night time, then longer than six hours after sunrise on the next morning, shall be fined five dollars, and be subject to a like penalty for each day such snow so remains after the first penalty has been incurred." Proof was made that defendant, on the 16th day of Februaiy, 1875, owned and occupied Lot 3, in White's addition to Bloomington, as a wood and stable lot ; that there was a sidewalk on the south side of the lot, which abutted on Grove Street ; that defendant did not remove the snow that had fallen on the sidewalk, two or three days before, to the depth of several inches, within six hours after sunrise on the day men- tioned in the complaint, and that the sidewalk in question was within the corporate limits of the city. It was admitted for the defence, that White's addition to Bloomington was laid out by James White on the 7th day of April, 1836. On the trial, defendant was found guiltj-, and fined in the sum of three dollars, and from the judgment rendered against him defendant prosecutes his appeal to this court. Mr. E. M. Prince, and Messrs. Karr & Karr, for the appellant. Mr. Justice Scott delivered the opinion of the court : — The ordinance under which defendant was prosecuted, imposes a fine upon any one who shall permit snow to remain upon the sidewalk abut- ting premises occupied or owned by him, longer than a period of six hours after it ceases to fall, or if the cessation is in the night time, then longer than six hours after sunrise on the next morning. The validity CHAP, v.] GKIDLEY V. BLOOMINGTON. 829 of that ordinance is the onlj' question made on the argument. It was admitted the lot occupied by defendant was one of an addition to Bloomington that was laid out in 1836, and hence it follows, under the decisions of this court, the fee of the street in front of the premises was either in the original proprietor or in the corporation. Indianapolis, Bloomington & Western E. B. Co. v. Hartley, 67 111. 439 ; Gebliardt V. Beeves, 75 Id. 301. The public had an easement over the street in front of the lot occupied and owned bj- defendant, and it makes no difference, so far as this deci- sion is concerned, whether the fee of the street passed by the plat and dedication to the corporation, or whether it remained in the original proprietor. It is plain defendant has no other interest in the street in front of his property than any other citizen of the municipality. The same is true of the sidewalk. It is a part of the street set apart for the exclusive use of persons travelling on foot, and is as much under the con- trol of the municipal government as the street itself. The owner of the adjacent lot is under no more obligation to keep the sidewalk free from obstructions, than he is the street in front of his premises. He may not himself obstruct either so as to impede travel on foot or in car- riages. It will be conceded the citizen is not bound to keep the street in front of his premises free from snow or anything else that might impede travel ; then, upon what principle can he be fined for not remov- ing snow or other obstruction from the sidewalk in which he has no interest other than what he has in common with all other persons resi- dent in the city? It is certainly not upon the principle under which assessments are made against the owner for building sidewalks in front of his property'. The cases are- not analogous. Such assessments are maintained on the ground the sidewalk enhances the value of the prop- ertj', and to the extent of the special benefits conferred thej- are held to be valid. It would be absurd to suppose that assessments for benefits for local improvements could be enforced by fines or penalties, as in the ordi- nance under which defendant was fined. Nor do we think this ordinance can be upheld as an exercise of the police. power inherent in all munici- pal governments. It was expressly' decided by this court, in City of Ottawa v. Spencer, 40 111. 211, that local improvements of either side- walks or streets cannot be compelled, under the general police power. The legislature must afford the necessarj' power for constructing all needful improvements, subject to constitutional limitations; and when one mode of making such improvements is sanctioned by the Constitution, no other can be adopted. Keeping streets and sidewalks in repair, and free from obstructions that impede travel or render it dangerous, is referable to the same power as for constructing new improvements. The sidewalk, as was declared in the case cited, is as much a public highwaj', free to the use of all, as the street itself, and, upon principle, it follows, the citizen cannot be laid under obligations, under our laws, to keep it free from obstructions 830 GKIDLEY V. BLOOMINGTON. [CHAP. V. in front of his property at his own expense, any more than the street itself, either by the exercise of the police power or by fines and penalties imposed by ordinance, or by direct legislative action. Our conclusion is, the ordinance in question is Invalid, and the judg- ment must be reversed and the cause remanded. tTudyment reversed.^ 1 The doctrine of this case was affirmed in Chicago v. O'Brien, 111 111. 532 (1884). The court (SCholfield, C. J.) said: " It is conceded by counsel for appellant that this court, in Gridleij v. Citij of Bloomington, 88 111. 554, decided the only question involved in this case (namely, the validity of the ordinance under which the suit is prosecuted) against appellant ; but they contend that decision is based upon incorrect grounds, and should therefore be overruled. They contend that the ordinance is but a proper police regulation, and that, as such, it should be sustained. In support of this position they cite Bonsall et ux. v. Mai/or, etc.. 19 Ohio, 418; Paxton v. Sweet, 13 N. J. (1 Green) 196; Mayor, etc. v. Maberri/, 6 Humph. 368; Washington v. Mayor, etc., 1 Swan (Tenn.), 177; Woodbridge v. City of Detroit, 8 Mich. 274; and other cases. " In City of Chicago v. Lamed, 34 111. 203, — a case very elaborately argued by able counsel, — the principle involved in the decisions of these cases was carefully considered, and it was held they could not apply here, — that they were decided under constitutions so materially different from ours, that the same Hue of reasoning is not applicable to both. And iu City of Ottawa v. Spencer, 40 111. 211, which was a proceeding to charge the adjacent lot-owner with the cost of building a sidewalk, the same question was again before the court, and it was then insisted, as it is now, that the charges may be sustained as within the police power, but the position was held untenable. In passing upon this point, it was there said : 'It is also urged that this may be referred to the police power of the State, which has been delegated to the city, and may therefore be properly exercised ; and in support of the proposition we are referred to the decisions of the Supreme Court of Tennessee : Mayor, etc. v. Maberry, 6 Humph. 368 ; Washing- ton V. The Mayor and Aldermen of Nashville, I Swan, 177; White v. The Mayor and Aldermen of Nashville, 2 Id. 364. These cases go to the length of sustaining the doc- trine contended for by plaintiffs in error. They announce the doctrine that such improvements may be compelled under the general police power. If this be so, by an exercise of the same power we presume that the owner could be compelled to con- struct and keep in repair public roads, bridges, and culverts fronting upon or running through his lands, or the owner of a city or village lot could be compelled to make and repair the street in front of his property. A sidewalk is a portion of a public high- way, appropriated, it is true, to pedestrians alone, but still open and free to all per- sons desiring to use and enjoy it as a public highway. It is as much a public highway in the mode of its use as the street itself. The difference in the manner of their use does not render one public more than the other. They are both free to be properly used and enjoyed by the entire public, and are constructed alike for their use. That the legislature may afford the necessary power of constructing such improvements so essentially necessary to the comfort and convenience of the community is apparent ; but under our Constitntion we think the mode authorized in this case is not sanctioned, and that the principles announced in the case of Lamed v. The City of Chicago fully govern and control this case.' "Even the police power, comprehen.'iive as it is, has some limitations. It cannot be held to sanction the taking of private property for public use without making just compensation therefor, however essential this might be, for the time, to the public health, safety, etc. And upon like principle, a purely public burden cannot be laid upon a private individual, except as authorized in ca«es to exercise the right of eminent domain, or by virtue of proper proceedings to enforce special assessments or special taxation. The drainage of malarial swamps would surely largely contribute to pro- mote the public health ; but could it be contended that therefore the burden of such CHAP, v.] CARTHAGE V. FREDERICK. 831 Tn Carthage v. Frederick, 122 N.Y. 268, 277 (1890), in sustaining the constitutionalitj- of a local ordinance of the same sort as that in the case of Goddard, Petitioner, the Court of Appeals (Second Division), Vann, J., said : " If this power of local legislation can be conferred upon the largest city in the State, it can also be conferred upon the smallest village that the legislature sees fit to incorporate. In this latitude the accumulation of snow upon sidewalks in large quantities is a matter of course. Its presence retards travel, interrupts business, and interferes with the safety' and convenience of all classes. It is a frequent cause of accidents and thus affects the property of every person who is liable to assessment to pay the damages caused by a failure to remove it. But how is it possible for the authorities of a large city, with many hundred miles of streets, to remove the snow in time to prevent injury to those who have the right to travel upon the sidewalks unless they can require the owners and occupants of adjacent property to remove it ? Every man can conveniently and promptly attend to that which is in front of his own door, and it is both reasonable and necessary that he should be compelled to do so. We think that the ordinance under considera- tion is valid ; that it conflicts with no provision of the Constitution, and that it is the duty of the courts to enforce it. "In reaching this conclusion, we have not overlooked the case of Gridley v. City of £loomin[/ton, 88 111. 554, but have given it the diainage may be laid upon some single person to be arbitrarily selected, or upon those who happen to own the adjacent dry land, in disregard of the principles applicable to special assessments and special taxation? Undoubtedly, the allowing of Ice or snow to remain upon a sidewalk may be declared a nuisance, but it must be a public nui- sance, and one, too, not caused by the act of the adjacent property holder, but solely by the action of the elements. No one questions the right of the municipality to pre- vent such use of property and such action of the citizen as may be injurious to the public ; but the adjacent lot-owner has no ownership or control of the adjacent street, and this ordinance seeks to control the action of no one while on the street. The lot- owner is held responsible solely and simply for the accident of owning property near the nuisance. He may have no more actual control of the street, or necessity to use it, than if his property were miles away ; still, he is held responsible for a result he could not control, and to the production of which he did not even theoretically contribute. The gist of the whole argument is merely that it is convenient to hold him responsible. It is not perceived why it would not be equally convenient to hold him responsible for the entire police government of so much of the street. " Counsel seem to wish to draw a distinction between the present case and the cases of Citi/ of Chicago v. Lamed, and Cilg of Ottawa v. Spencer, supra, upon the ground that it is here neither sought to construct nor repair a sidewalk, but simply to keep it in a passable condition. But the difference is in the extent and not in the char- acter of the burden sought to be imposed. The principle is precisely the same in each case. The object is to fit the streets, or so muQh as is occupied by sidewalks, for travel ; and if the power to compel the private person to accomplish this result exists at all, it must extend to the necessary means in each case. It is impossible to point out why the removal of a snow-bank should re^t on a different principle from that applicable to filling a hole, or nailing down a board. " We are satisfied with the entire correctness of the ruling in Gridley v. City of Eloomington, supra, and being so satisfied, the judgment below must be affirmed." Judgment affirmed, DiCKET, Sheldon, and Ceaig, JJ., dissenting. — Ed. 832 KEINKEN V. FUEHEING. [CHAP. V. attention to which it is entitled by the high standing of the court that decided it. The argument upon which the opinion in that case rests is that, as the fee of the street was in the corporation, and the sidewalk was a part of the street, the lot-owner had no more interest in the side- walk in front of his premises than any other citizen of the municipality, because it was set apart for the exclusive use of persons travelling on foot and was as much under the control of the municipal government as the street itself. "We are unable to yield to this reasoning, because it overlooks not only the public safety and general convenience, but also the peculiar interest that every owner or occupant of real propert}- has in a clean sidewalk in front of his own premises. Whatever adds to the usefulness of a sidewalk adds both to the rental and permanent value of the adja- cent lot. " After carefully examining all of the questions presented bj' counsel, we think the judgment should be affirmed." All concur except Follett, Ch. J., not sitting. Jvdgment affirmed. REINKEN V. FUEHRING. Supreme Court of Indiana. 1891. [130 Tnd. 382.] Appeal from Circuit Court, Marion Countj' ; E. A. Brown, Judge. Action by Fred. Fuehring and others against Henry Eeinken, Sr., to foreclose a lien on defendant's real estate. Defendant appeals from a judgment overruling his demurrer to the complaint. Affirmed. Denny & Elliott, for appellant. Avtgustus L. Mason, for appellees. CoFFET, J. The appellees brought this suit in the Marion County Circuit Court to foreclose a lien for the amount assessed against the appellant's real estate for sweeping the street in front of his property in the city of Indianapolis, under a contract made between the city and the appellees pursuant to the provisions of the citj- charter.. A demurrer to the complaint was overruled, and the appellees had judgment, from which this appeal is prosecuted. The charter of the cit}- of Indianapolis is found in Acts Gen. Assem. 1891, p. 137. It provides for the mode of improving the streets, and the payment for such improvements ; and confers on the cit}', through its proper officers, the power to make con- tracts for sprinkling and sweeping such streets in the city as it may deem proper, and to assess against the. property holders abutting on such streets the cost of such sprinkling and sweeping. The only ques- tion before us for decision relates to the constitutionalit3' of so much of the Act as authorizes the city to contract for sprinkling and sweeping the streets at the cost of the property holders along the line of such CHAP, v.] EEINKEN V. FUEHKING. - 833 streets, it being contended by the appellant that these provisions are unconstitutional for the reasons : First. That it violates the provision of our State Constitution requiring an equal and uniform rate of taxation. Second. Because, even if the city has power to compel abutting property owners to pay for sweeping the streets in front of their propert}-, it has no power to compel them to do so, and at the same time compel them to pay into the general fund a part of the costs of cleaning other streets, as provided for in the Act. Third. Because the proceeding which the Act attempts to authorize amounts to a taking of private property with- out due compensation and due process of law. To support his contention as to the first proposition presented, the appellant relies to some extent upon the case oiGridley v. City of Bloom- ington, 88 111. 554, and the case of City of Chicago v. O'Brien, 111 111. 532. These cases hold that an ordinance making it the duty of the owner or person occupying premises abutting upon a street to keep the sidewalks free from snow and ice, and providing for the enforcement of such ordinance by the infliction of penalties, is void. The cases seem to rest principally upon the peculiarity of the laws of the State of Illinois, under which the lot-owner does not own the fee in the street. The last case, however, was decided by a divided court, three of the judges refus- ing to concur in the conclusion reached. Tlie authorities make a clear distinction between the word "• taxation " and the word " assessment." " 'Taxes' are impositions for purposes of general revenue. 'Assess- ments ' are special and local impositions upon property in the immediate vicinity of an improvement for the public welfare, which are necessary to pay for the improvement, and laid with reference to the special benefit which such property derives from the expenditure." Palmer v. Stnmph, 29 Ind. 329. This distinction is recognized in nearly all the States of the Union. For a collection of the authorities upon this subject see the case above cited. The assessment, therefore, made against the owners of property along the streets required to be swept under the Act in question, to pay the expense of such sweeping, is not a tax, but a local assessment. The question is then presented as to whether a local assessment for this purpose can be sustained under our Constitution. If it can be sus- tained at all, it must be upon the grounds that it is the proper exercise of the police power of the State, and a special benefit to the abutting property owner. The power of a municipal corjwration to order side- walks of a particular kind, and to assess against the abutting property owner 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 pnblic, is generally upheld upon the ground that it is proper exercise of the police power of the State. Goddard, Petitioner, 16 Pick. 504 ; Palmer v. Way, 6 Colo. 106; Cooley, Tax'n, pp. 396, 397; State v. Mayor, 37 N. J. Law, 423 ; Kirby v. Boylston, 14 Gray, 252 ; Pedrick v. Bailey, 12 Gray, 163 ; Moore v. Gadsden, 93 N. Y. 12 ; Hartford v. Talco'tt, 48 Conn. 525. Judge Coolej- says : " The cases for assessments for •the vol,. I. — 53 834 EEINKEN v. FUEHRING. [CHAP. V. construction of walks bj- the side of streets in cities and other populous places are more distinctly referable to the police power. These foot- walks are not only required, as a rule, to be put and kept in proper condition for use by tlie adjacent proprietors, but it is quite customary to confer b}- the municipal charters full authority upon the municipalities to order walks of a kind and quality by them prescribed to be constructed by the owners of adjacent lots, at their own expense, within a time lim- ited by the order for the purpose ; and that, in case of their failure so to construct them, it shall be done by the public authorities, and the cost collected from such owners, or made a lien upon their property. When this is done, the duty must be looked upon as a, regulation of police, made because of the peculiar interest such owners have in the walks, and because their situation gives them peculiar fitness and ability for the performing with promptness and convenience the dnt3' of putting them in a proper state, and afterwards keeping them in a condition suitable for use." Coole^', Tax'n, supra. Assuming, as held by these authorities, that the power to make local assessments to pay for local improvements or benefits is to be referred to the police power of the State, we are naturally led to inquire whether the assessments provided for in the charter now under consideration amounts to a taking of private property without compensation, and without due process of law, as contended by the appellant. Mr. Sedgwick, in his valuable work on Statutory and Constitutional Law, 435, says : "The clause prohibiting the taking of private property without compen- sation is not intended as a limitation of the exercise of those police powers which are necessary- to the tranquillity of every well-ordered communit3', nor of that general power over private propert3' which is necessary for the orderly existence of all governments. It has always been held that the legislature maj- make police regulations, although they raaj- interfere with the full enjoyment of private propertj-, and though no compensation is given." . . . [Here follows a citation from 1 Dillon, Munic. Corp. 212, and a statement of the cases of Goddard, Petitioner, and Carthage v. Frederick.'] The principles which rule the cases above cited cannot, in our opin- ion, be distinguished from the principles which rule the case at bar. Of course, it is not claimed that in the exercise of the police power such assessments could be made and collected from the abutting propertj' owner unless he had a special interest and derived a special benefit therefrom, not enjoj'ed by the public in general ; but if he has a special interest in the improvement of the street and sidewalk, and in keeping them free from snow and ice, so he has a special interest in keeping them free from accumulating filth. It is matter of common observation, of which we must take notice, that property located upon well-improved streets, kept clean, is more desirable than property on unimproved streets where mud and filth are permitted to accumulate and obstruct their use. It is safe to assert, we think, that keeping a street clean adds to the rental, if not to the permanent value, of property" located CHAP, v.] EEINKEN V. FUEHRING. 835 thereon ; and for this reason, among others, Ihe abutting property owner has a special interest in such cleaning, not enjo^'ed by the general coin- munit3'. For the reason »that the public in general has an interest in keeping the streets free from filth, the cit^' may, in exercising the police power conferred upon it by the State, order them swept ; and for the further reason that the abutting property owner derives a benefit from such sweeping not enjoyed by the general public, he may be required by assessments to pay the expenses incident to such sweeping. It fol- lows from what we have said that the assessments provided for by the Act under consideration do not amount to a taking of private property without compensation and without due process of law. Assessments of the kind we are now considering are made upon the principle that the person assessed is benefited in the increased value of his property, either rental or permanent, over and above the benefits received bj' the public, in a sura equal to the amount he is required to pay. It is upon this theory alone that they ban be sustained. If the propert3- owner is full^- compensated for his outlay in the enhanced value of his property, we see no reason why he may not be taxed generally, also, with the balance of the public, for cleaning other streets in wbich the public alone have an interest, and which are not, and, indeed, cannot be, swept as the streets upon which his property abuts. We are not able to perceive how such a tax would be unjust or inequitable, inas- much as he receives as much benefit therefrom, in contemplation of law, as any other member of the community. As he has been fully compen- sated for his outlay in sweeping the street upon which his property is situated, he should not be heard to complain of such payment when called upon to bear his portion of other public burdens. Nor do we think the fact that the statute contemplates the sweeping of the cross- ings renders it invalid. It cannot be said that the property owners do not receive a special benefit from keeping them clean. Sweeping the street in front of the property would be of little benefit if filth and rub- bish were permitted to accumulate upon the crossings, so as to render them unfit for use. If the property does in. fact receive a special benefit from sweeping the crossings, there is no reason why those who are thus benefited should not pay the expenses. Having carefully examined all the objections urged against the validity of so much of the statute as is here called in question, we have reached the conclusion that it is not unconstitutional, and that the court did not, therefore, err in overruling a demurrer to the complaint before us. Judgment affirmed. Elliott, C. J., took no part in the decision of this cause. 836 COMMONWEALTH V. CARTER. [CHAP. V. COMMONWEALTH v. CARTER. Supreme Judicial Court op Massachusetts. 1882. [132 Mass. 12.] Indictment for an assault, on September 28, 1880, upon Martin Griffin, an inspector of milk, while said GriflSn was in the discharge of his diit3' as such inspector. . . . The jury returned a verdict of gnilty ; and the defendant alleged exceptions. J. D. Thomson, for the defendant. C. H. .Barrows, Assistant Attorney-General ( G. Marsion, Attor- ney-General, with him), for the Commonwealth. Field, J. The only question argued in this case is the constitution-' aUty of the St. of 1864, c. 122, § 2, so far as it authorizes inspectors of milk to " enter any place where milk is stored or kept for sale, and all carriages used in the conveyance of milk ; and whenever they have reason to believe any milk found therein is adulterated, they shall take specimens thereof and cause the same to be analyzed, or otherwise satisfactorily tested, the result of which they shall record and preserve as evidence." It is contended that this provision is nnconstitutional, because it authorizes the taking of property without consent or compensation ; warrants unreasonable searches and seizures ; compels one to furnish evidence against liimself: and is not within the police power of the Commonwealth. An analysis of a specimen of milk offered for sale is an appropriate means of carrying into effect the various provisions of the statutes regulating the sale of milk in this Commonwealth. In the case at bar, the can of milk was taken from a carriage used in the con- veyance of milk, and it is unnecessary to consider whether the words of the section " place whore milk is stored or kept for sale" may- or may not include a dwelling-house, and whether, if construed to include a dwelling-house, they do not purport to give a power wliich the legislature could not give, because the clause authorizing an entry into any place where milk is stored or kept for sale is separable from that which authorizes an entry into all carriages used in the con- veyance of milk. Neither is the power granted in violation of the pro- vision of art. 12 of the Declaration of Rights, that no subject shall be compelled to accuse, or fhrnish evidence against himself. If the seizure is such as is authorized by the Constitution -and a law passed in pursu- ance thereof, the fact that the thing seized may be used in evidence in a criminal charge against the person from whose possession it is taken, does not render the seizure itself a violation of the Declaration of Rights. Commonwealth v. Dana, 2 Met. 329, 337. If the statute had required that all milk offered for sale should first be inspected, it would hardly be contended that the trifling injuiy to property occa- CHAP, v.] PEOPLE V. EWER. 837 sioned by taking samples for inspection would be such a taking of private property for public use as to require that compensatiou be made therefor. Such an injury to property is a necessary incident to the enforcement of reasonable regulations affecting trade in food. Private property is held subject to the exercise of such public rights, for the common benefit; and in the case of licensed dealers in merchan- dise, the injury suffered by inspection is accompanied by advantages which must be regarded as a sufficient compensation. Bancroft v. Cambridge, 126 Mass. 438, 441. Instead of requiring all milk offered for sale to be first inspected, the legislature for obvious reasons has permitted hcensed dealers to sell milk without inspection, has imposed penalties for selling adulterated milk, has defined what shall be deemed adulterated milk, and has provided that when the inspector of milk has reason to believe that any milk has been adulterated he may take speci- mens thereof in order that by analysis or otherwise he may determine whether the milk has been adulterated. Such a seizure of milk for the purposes of examination is a reasonable method of inspection, and does not require a warrant. It is a supervision under the laws by a public officer of a trade which concerns the public health, and is within the police power of the Commonwealth. Commonwealth v. Bucey, 126 Mass. 269. Jo?ies v. Boot, 6 Gray, 435. There is nothing in this case which requires us to determine the rights of the defendant, if the inspector had attempted to take a larger quantity of milk for analysis than was reasonably necessary for the performance of his duties. We have not found it necessary to con- sider whether the defendant, by voluntarily accepting a license to sell milk, has not assented to the conditions and regulations which the legislature has seen fit to impose upon the exercise of the trade licensed. See Pitkin v. Springfield, 112 Mass. 509; Bertholf v. (yBeilly, 74 N. Y. 509, 517. Exceptions overruled. PEOPLE V. EWER. New York Codet of Appeals. 1894. [36 Northeastern Reporter, 4.] Appeal from Supreme Court, General Term, first department. . . . Charlotte Ewer was arrested upon a police magistrate's warrant, charged with a misdemeanor in violating section 292 of the Penal Code by exhibiting her child, Mildred Ewer, as a dancer at the Broadway Theatre in New York City. The examination before the magistrate sustained the charge, and showed that she was of the age of seven years, and went by the stage name of " La Regaloncita ; " that she was clad in the usual style of the ballet-dancer, in a low-necked, sleeve- less, and short dress, and wore purple tights ; that she danced upon the 838 PEOPLE V. EWER. [OHAP. V. stage to the music of an orchestra, elevating her legs, moving upon her toes, and posturing witii her figure. Her mother, being held upon the charge, sued out writs of habeas corpus and certiorari, to which the mag- istrate made return of liis proceedings, etc. The prisoner demurred to the return ; alleging that there were no suflBcient grounds for holding her, and that the statute under which she was arrested was unconstitutional. The provisions of the Code under which this arrest was made read that " a pei-son who . . . exhibits ... a female child apparentlj' or actually under the age of fourteen years, ... or who, having the care, etc., of such a child as parent, etc., ... in a»y way consents to the emploj'- ment or exhibition of such a child either as ... a dancer ... or in a theatrical exhibition ... or in any . . . exhibition dangerous or injurious to the life, limb, health or morals of the child ... is guilty of a misdemeanor." At the Special Term the writs were dismissed, and the prisoner was remanded. The order of that court was affirmed at the General Term, and the defendant has appealed to this court. A. J. Dittenhoefer and David Gerber, for appellant. De Lancey Nicoll, Dist. Atty. {Elbridge T. Gerry, of counsel), for the people. Gray, J. The question we shall determine upon this appeal is whether the statute under which the appellant was arrested violates any just and personal riglits secured to her bj' the Constitution of the State. If it is such an interference with the legal relation of parent and child as exceeds the limits within which the legislature, exercising the sovereign power of the State, ma}' regulate and control that rela- tion, then it is the duty of the courts to declare its nnconstitutionalitj' ; hut, if it is within a proper and legitimate exercise of legislative func- tions, the courts may not interfere. This question falls within those which are classified under the head of the police power of the State. The extent of the exercise of that power, with which the legislature is invested, and which it has so freely exerted in many directions, within constitutional limits, is a matter resting in discretion, to be guided by the wisdom of the people's representatives. It is difficult, if not im- possible, to define the police power of a State, or, under recent judi- cial decisions, to say wiiere the constitutional boundaries limiting its exercise are to be fixed. It is a power essential to be conceded. to the State, in the interest, and for the welfare, of its citizens. We may sa}- of it that when its operation is in the direction of so regulating a use of private property-, or of so restraining personal action, as mani- festly to secure or to tend to tlie comfort, prosperit}- or protection of the community', no constitutional guarantee is violated, and the legisla- tive authority' is not transcended. But the legislation must have some relation to these ends ; for, to quote the expressions of Mr. Justice Field in the Slaughter- House Cases, 16 Wall. 36, " under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded." In People v. King, 110 N. Y. 418, i8 N. E. 245, it was well observed hy Judge Andrews : "By means of this power the legislature exercises a supervision over matters affecting the CHAP, v.] PEOPLE V. EWEE. 839 common weal. ... It maj- be exerted whenever necessary to secure the peace, good order, health, morals, and general welfare of the com- munit3', and the propriety of its exercise, within constitutional limits, is purely a matter of legislative discretion, witli which courts cannot interfere.'l The assumption of the exercise of this extraordinary and very necessary power has been the subject of severe criticism in the opinions of judges, when it has been sought thereby to regulate and control in the interest of the public the conduct of corporate or indi- vidual business transactions. Mtinn v. State of Illinois, 94 U. S. 113, maj- be referred to as starting a current of authority in this countr3-. But no such criticism can And just grounds for cavilling at legislation whose ends clearly tend to promote the health or moral well-being of the members of society. To tliat class of legislation this statute belongs. By preventing the exhibition of children of tender and im- mature age upon the theatrical or other public stage, the legislature is exercising that right of supervision and control over the child which in ever}' civilized State inheres in the government, and which nothing in the legal relations of parent and child should be deemed to forbid. iThe proposition is indisputable that the custody of the child by the parent is within legislative regulation.} The parent, by natural law, is entitled to the custody and care of the child, and, as its natural guardian, is held to the performance of certain duties. To society, organized as a State, it is a matter of paramount interest that the child shall be cared for, and that the duties of support and education be performed by the parent or guardian, in order that the child shall become a healthful and useful member of the comnninitj'. It has been well remarked that, the better organized and trained the race, the better it is prepared for holding its own. Hence it is that laws are enacted looking to the compulsory education by parents of their children, and to their punishment for cruel treatment, and which limit and regulate the employment of children in the factory and the workshop, to prevent injury from excessive labor. It is not, and cannot be, disputed that the interest which the State has in the physical, moral, and intellectual well- being of its members warrants the implication and the exercise of every just power which will result in preparing the child, in future life, to sup- port itself, to serve the State, and, in all the relations and duties of adult life, to perform well and capably its part. . . . The learned counsel for the appellant does not, in the main, contest the right and the duty of the State to protect, and to promote by ade- quate legislation, the health and morals of its citizens, but bases his arguments here upon the proposition, substantially, that the legislature cannot take from parents the right to employ their children in any law- ful occupation, not indecent or immoral, or dangerous to life, limb, health, or morals. That proposition may be readily conceded. It is true enough that if the court could say that this legislation was an arbitrary exercise of the legislative power, depriving the parent of a right to a legitimate use of his child's services, — that, while ostensibly 840 PEOPLE V. EWER. [CHAF. V. for the promotion of the well-being of children, in reality- it strikes at an inalienable right or at the personal libeitj' of the citizen, and but remotely concerned the interests of the community-, — it would be its dutj' to so pronounce, and to declare its invalidity-. But this legislation has no such destructive effect or tendency. It does not deprive the parent of the child's custodj', nor does it abridge any just rights. It interferes to prevent the public exhibition of children, under a certain age, in spectacles or performances which, by reason of the place or hour, of the nature of the acts demanded of the child performer, and of the surroundings and circumstances o#the exhibition, are deemed bj' the legislature prejudicial to the physical, mental, or moral well-being of the child, and hence to the interests of the State itself.^ Take the facts of this case, and they seem sufficiently to warrant the interference of the law. It is not necessary to reason upon them. The scanty dress of the ballet-dancer, the pirouetting and the various other de- scribed movements with the limbs, and the vocal efforts cannot be said to be without possible prejudice to the physical condition of the child, while in the glare of the footlights, the tinsel surroundings, and the incense of popular applause, it is not impossible that the immature mind should contract such unreal views of existence as to unfit it for the stern- realities and exactions of later life. The statute is not to be construed as applying only when the exhibition offends against morals or decencj', or .endangers life or limb, by what is required of the child actor. Its application is to all public exhibitions or shows. That any and all such shall be deemed prejudicial to tiie interests of the child, and contrary to the policy' of the State to permit, was for the legisla- ture to consider and say. The right to personal libert3' is not infringed upon because the law imposes limitations or restraints upon the exercise of the faculties with which the child may be more or less exeeptionallj' endowed. The in- alienable right of the child or adult to pursue a trade is indisputable ; but it must be not only one which is lawful, but which, as to the child of immature years, the State or sovereign, as^a?'ens^ay a justice of the peace of Columbus County, aud tried by him, charges the defendant, as superintendent of the "Wilmington, Columbia, and Augusta Railroad Company, with a personal criminal responsibility, for the running over and killing two cows, the property of J. C. Powell, the prosecutor, by a train moving over its track, on May 19th, 1886. The proceeding is instituted under the A<;t of 1880, ch. 13, which is brought forward, and constitutes the four last sections, 2327, 2328, 2329, 2330, of chapter 10 of vol. II. of The Code. [These sec- tions are placed in a note.^] ^ The enactment is in these words : — "When any cattle, horses, mules, sheep or other lire stock shall be killed or in- jured by any car or engine running on any railroad in the counties of Columbus, New Hanover, Brunswick, Bladen, Robeson, Richmond, Anson, Union, Gaston, Lincoln, Cleveland, and Burke, it shall be a misdemeanor ; and the president, receiver, aud superintendent of such road, and also the engineer aud conductor in charge of the train or engine by which such killing or injury is done, may be indicted for such kill- ing or injury : Provided, if the parties indictable under this section shall, within six months after the killing as aforesaid of any stock mentioned in this section, and before any indictment is preferred or warrant issued, pay the owner of such stock as may be killed his charges for said stock, or in the event the charges are too high, or tliought to be so, such sum or sums as may be assessed by three commissioners, — one to be chosen by the party whose stock is killed or injured, a second by the party accused of killing the same, and the third by the two commissioners chosen as above indicated, who shall meet at some place in the county where the stock is killed or injured, to be selected by the parties interested, — within thirty days after they are chosen aud accepted, such payment shall be a bar to any prosecution under this sec- tion ; and the decision of two of said commissioners shall be final for the purposes of this section : Provided further, if any person or persons liable to indictment under this section, shall within the time prescribed, propose to the party endamaged to refer the matter of damages in the manner hereipbefore indicated to three commis- sioners, and the party endamaged shall refuse or decline such proposition, such refusing or declining ^all be a bar to any prosecution under tbis section : Provided also, if the party endamaged shall, at any time before the indictment is preferred, or war- rant issued, directly or indirectly, receive any sum in full compensation of his damages, such compensation shall be a bar to any prosecution under this section ; and if any compensation be so received after indictment is preferred or warrant issued, or if after said time the party accused shall pay or tender to the owner of the stock killed the value of j;he same, as decided by the commissioners, as above provided, — in either case the prosecution shall go no further, aud the accused shall be charged only with accrued cost." The second section prescribes the punishment by " fine not exceeding fifty dollars, or imprisonment not longer than thirty days." The third provides that, " when stock is killed or injured by a running engine or 852 STATE V. DIVINE. [CHAP. V. Upon an appeal to the Superior Court from the judgment rendered against the defendant by the justice of the peace, a special verdict was found b}- the jury in these words : " The cattle were killed by the cars of the Wilmington, Columbia, and Augusta Railroad Company as alleged, under the following circumstances, to wit : That at the time of the killing it was a bright moonlight night, about 10 p. m. ; that the train was on schedule time, running at the rate of forty miles per hour ; that the cattle could have been seen at least one hundred yards ahead of the train ; that the cattle were not seen hy the engineer until struck by the train ; that the cattle were the property of J. C. Powell ; that the corporation owning the road is the same which was chartered bj' the Act of March 1st, 1870, as the Wilmington and Carolina Railroad Company ; that the defendant is the superintendent of the said Wil- mington, Columbia, and Augusta Railroad Company ; that the said company refused to refer the matter to arbitration ; that the defendant, J. F. Devine, was not on the train that did the kilhng, and was in no way connected with said kilhng." The court being of opinion that the defendant was not guiltj-, ad- judged that he go without daj-, and the Solicitor appealed. The Attorney- General, for the State. Mr.' Geo. Davis (by brief), for the defendant. . . . Smith, C. J. . . . The objections to the validit3- of the legislation are pointed out and forcibly presented in the brief of defendant's counsel, with an arra}- of numerous rulings in their support, as follows : — 1. In its whole structure and manifest purpose it creates out of a pri- vate civil injury a public prosecution, to subserve the interests of the injured party, and to be put in operation or arrested at his instance and election. 2. It assumes a criminal liabilitj' to have been incurred by an officer of a railroad corporation, without his concurrence in the act of the subordinate, and, assuming negligence and guilt, puts him on the defensive, and requires him to repel the presumption, when he in no manner participated in what was done. 3. It undertakes to drive the accused to an adjustment of the claim for damages by assenting to a reference to arbitration, and to deprive him of his constitutional right to be tried in the courts of the State — tribunals provided under the Constitution — and b3' a properly constituted jurj', acting under a judge. 4. It places at the election of the claimant the institution of the prose- cution, which otherwise is suspended, by making » proposition for a reference. 5. It discriminates, without apparent difference, between counties and railroads, giving partial operation to a law, general in its provisions and equally applicable to all, bj- which the same act is ren- dered criminal in one locality which is not so in another, and raising car in the counties enumerated, it shall be prima facie evidence of negligence on the trial of the indictment." The fourth section declares that the indictment against the officers of railroad com- panies shall not lie " until a proposition to refer the matter has been proposed by the party claiming that he has been damaged." CHAP, v.] STATE V. DIVINE. 853 out of an act done by one employee a presumption of guilt against another emploj'ee, who did not, in any way, participate in it. We do not perceive any difficulty in the Act of 1856-57 ( The Code, § 2326) raising a presumption of negligence on the part of the company from the fact of killing or injuring stock, in a civil suit for reparation, brought within six months thereafter, as is explained in the opinion in Doggett v. Railroad, 81 N. C. 459, and whose validity has not been questioned in the numerous cases wliich- have been before the court. But the present case passes far beyond the limits of that enactment, in fastening a criminal responsibility, not upon the principal whose agent does tlie injury, but upon a co-employee in the same general service, and this not upon all, but specially upon railroads that run through or in particular counties. We do not say that there may not be local legislation, for it is very common in our statute-books, but that an act divested of any peculiar circumstances, and per se made indictable, should be so throughout the State, as essential to that equality and uniformity which are fundamen- tal conditions of all just and constitutional legislation. Looking at the indictment, it will be seen that the only material alle- gations are, that the prosecutor's cattle were killed by a moving train on the road of tlie company of which the defendant is superintendent, without connecting him with the act ; and scarcely more definite is the special verdict. Do these words impute crime, and upon mere proof of these facts is the charge established, and must the defendant be convicted unless he repels the negligence which the statute presumes in the subordinate emploj'ed in managing the train? The very question involves an an- swer, unless all the safeguards thrown around one accused of crime are disregarded, and he left without their protection. The defendant was not on the train when the accident occurred, and has no personal rela- tion to it, except such as results from his position as a higher officer of the road, — making the offence one by construction. Judge Cooley, in his work on Constitutional Limitations, at page 309, referring to a trial for criminal offences of different grades, uses this impressive lan- guage : " The mode of investigating the facts, however, is the same in all, and this is through a trial by jury, surrounded by certain safe- guards, which are a well-understood part of the system, and wliich the government cannot dispense with," meaning, as we understand, that the charge must go before the jury, and the guilt of the accused proved to them, with the presumption of innocence until this is done. In Cummings v. Missouri, 4 Wall. 328, Mr. Justice Field, referring to certain enactments in that State, says : " The clauses in question subvert the presumption of innocence, and alter the rules of evidence which, heretofore, under the universally recognized principles of the common law, have been supposed to be fundamental and unchange- able." " But I have no hesitation in saying," remarks Selden, J., in Wynehamer v. The People, 13 N. Y. 446, " That they (the legislature) 854 OHIO AND MISSISSIPPI RAILWAY CO. V. LACKEY. [CHAP. V. cannot subvert that fundamental rule of justice which holds that everj' one shall be presumed innocent until he is proved guilt3-." The case is not analogous to that wherein for civil purposes negli- gence is inferred from the fact of killing stock, and requiring matters in excuse to be shown, which lie peculiarlj' within the knowledge of the agent who perpetrated the act, or controls the running of the engine when it is done; nor to tlie statute (The Code, § 1005) which makes the having about the person one of the deadly weapons forbidden to be carried, or worn, prima facie evidence of concealment; for this is the sole personal act of the party, of»the consequences of which he is aware, and because a small weapon, if concealed, would be almost impossible of proof direct, while the possession of such is intimately and naturally connected with the secret carrying, and furnishes strong evi- dence of the fact. In San Manteo v. Railroad, 8 Am. & Eng. R. R. Cases, 10, in con- struing the Fourteentli Amendment to the Constitution of the United States, it is said : " Whatever the State maj' do, it cannot deprive any one within its jurisdiction of the equal protection of the laws. And by equal protection of the laws is meant equal securit}- under them, by every one on similar terms in his life, his liberty, his property-, and in the pursuit of happiness." Substantially the same doctrine is announced, and hy the same emi- nent judge (Mr. Justice Field), in Barbier v. Connolly, 113 U. S. 31, in which he adds, " that no greater burdens should be laid upon one than are laid upon others in the same calling and condition." From what has been said, it results that the legislation in question has not the sanction of the Constitution, and cannot be upheld as within the competencj' of the law-making power to enact. We have gone into this inquiry in order to settle the question of the validity of the statute in the application to the case before us, and because it will practicall}' put an end to the litigation. But for the defect in the special verdict we are compelled to direct that it be set aside for further proceedings in the court below. Reversed and special verdict set aside. OfllO AND MISSISSIPPI RAILWAY COMPANY v. LACKEY. Supreme Court of Illinois. 1875. [78 n. 55.] Appeal from the Circuit Court of Marion County ; the Hon. Silas L. Bryan, Judge, presiding. Mr. H. P. Buxton, for the appellant. Mr. Justice Breese delivered the opinion of the court : This is an appeal from the judgment of the Marion Circuit Court, CHAP, v.] OHIO AND MISSISSIPPI RAILWAY CO. V. LACKEY. 855 rendered at the October term, 1870, upon the following agreed state of facts : " It was agreed in this case that, during the year 1869, three persons were run over and killed by trains on the railroad of appellant, in Marion County, and the appellee, being coroner of said county at the time, held an inquest in each case, the expenses of which, together with the costs of burial, amount, in the aggregate, to $91.15 ; that if appel- lant was, in law, liable to appellee, upon the facts stated, for the above amount, then judgment should be rendered in favor of appellee there- for, and if not so liable, then judgment should be for appellant, with the right to either party to appeal." In 1855, the General Assembly of this State passed an Act entitled " An Act to provide for the burial of the dead occurring on railroads, and in or by vehicles carrying passengers," in the second section of which Act it is provided that " every railroad company running cars within this State shall be liable for all the expense of the coroner and his inquest, and the burial of all persons who may die on the cars, or who may be killed by collision, or other accident occurring to such cars, or otherwise ; and any coroner, city, town, or person who shall take charge of and decently inter any such body or corpse, or cause an in- quest to be held over such corpse, shall have cause of action against such company, before any court having competent jurisdiction." Sess. Laws, 1855, p. 170 ; Scates' Corap. 423. It is insisted by appellant that this statute is not within the constitu- tional competency of the General Assembly' to enact, as it places the burden of these expenses upon the railroad companies, which, in other cases of like nature, is placed upon the estate of the deceased, or upon the county in which the accident maj- occur. This is the general law. R. S. 1845, eh. 99, title, " Sheriffs and Coroners," sec. 23 ; R. S. 1874, sec. 21, title, " Coroners." It ma3', very pertinently-, be asked. Why this distinction? On what principle is it that railroad corporations, without any fault on their part, shall be compelled to pay charges which, in other cases, are borne by the property of the deceased, or, in default thereof, bj- the county in which the accident occurred ? Au examination of the section will show that no default, or negligence of any kind, need be established against the railroad company, but they are mulcted iu heavy charges if, notwithstanding all their care and cau- tion, a death should occur on one of their cars, no matter how caused, even if by the party's own hand. Running of trains by these corpora- tions is lawful, and of great public benefit. It is not claimed that the liabilitj' attaches for a violation of any law, the omission of any dutj', or the want of proper care and skill in running their trains. The penalty is not aimed at anything of this kind. We say penalty, for it is in the nature of a penalty, and there is a constitutional inhibition against im- posing penalties where no law has been violated or duty neglected. Neither is pretended in this case, nor are they in the contemplation of 856 TOLKDO, ETC. RAILWAY CO. V. JACKSONVIl.LE. [CHAP. V. the statute. A passenger on the train dies from sickness. He is a man of wealth. Wlij should his burial expenses be charged to the railroad company ? There is neither reason nor justice in it ; and if he be poor, having not the means for a decent burial, the general law makes ample provision for such cases. As argued b^' the counsel for appellant, the law attempts to place what is properly a public burden upon these cor- porations, wliich should be borne bj' all alike, and discharged out of public funds raised b^- equal and uniform taxation. This may be considered in the light of a special tax, for which there is no sanction in the Constitution. We have not been furnished with anj' brief, points, or argument for the appellee. The views presented by appellant satisfy us the law in question cannot be sustained as a constitutional enactment. In 1874, the General Assembly repealed this statute, by chap. 131, title, "Statutes," R. S. 1022, but, at the same session, re-enacted it substantially, giving the power to sue, not to the coroner, as here, but to the county. lb., title, " Coroners," 283, sec. 22. For the reasons given, the judgment is reversed. Judgment reversed. TOLEDO, ETC. RAILAVAY COMPANY v. JACKSONVILLE. Supreme Court of Illinois. 1873. [67 ///. 37.] Appeal from the Circuit Court of Morgan Connt}^ ; the Hon. Charles D. Hodges, Judge, presiding. This was a suit brought by the city of Jacksonville against the Toledo, Wabash, and Western Raih»ad Compan3-, before a justice of the peace, to recover a penalty for a violation of the ordinance of the city referred to in the opinion of the court. The cause was taken to the ^ Circuit Court by appeal, where a trial was had before court, without a jury. The court found the defendant guilty, and rendered judgment in favor of the plaintiff for $50. The defendant appealed. Mr. William H. Barnes, for the appellant. Mr. Edward Dunn, for the appellee. Mr. Justice Scott delivered the opinion of the court : This action was brought to recover a penalty for a failure to comply with an ordinance of the city which required the railroad companj' to keep a flagman by day and a red lantern by night at the point where its track crosses the street or State road just west of the bridge known as " Rock Bridge." It is stipulated that the companj'did not keep a flagman at the. cross- ing indicated ; that it is within the bounds of the city ; that it is an important crossing, and much used ; that it has been so used by the rsiili'oad and the inhabitants for the last twentj'-five years, and that, by resolution of the city council, the company is not required, at this point, CHAP, v.] TOLEDO, ETC. RAILWAY CO. V. JACKSONVILLE. 857 to run its trains at a rate of speed not greater thau eight miles per hour, as required by general ordinance. The charter of fifte city contains the usual grants of power to pass such ordinances as may be deeined necessary for the good governnieut of the city, to control streets and alleys, to declare what shall be deemed a nuisance and abate the same, and to control the laying of railroad tracks in the streets and alleys. It contains no express grant of power to pass the ordinance in question. The riglit to do so is claimed under the police power of the municipality. Waiving the question of the power of the city to pass the ordinance without being expressly authorized by the General Assembly, we shall treat the case as though the citi" had the right, by the grants in Its charter, to exercise all the power in the regulation of its domestic aflairs that the Statd could do for the general welfare of the people. There can be no question that railway corporations are subject to police regulations as well as private citizens. The General Assembly, when the public exigencies require it, has power to regulate corporations in their franchises so as to provide for the public safety. The exercise of this right in no manner interferes with or impairs the powers con- ferred by their Acts of Incorporation. The G. and C. U. B. R. Co. V. Loomis, 13 111. 548 ; Thorpe v. Rutland and Burlington R. R., 27 Ver. 140. \ Under tMs power, it has been held that the legislature may require railroad corporations, notvifithstanding no such right has been reserved in the charters, to fence their tracks, to put in cattle guards, to place upon their engines a bell, and to do many other things for the protection of life and property. This power is inherent in the State, and it can- not part irrevocably with its control over that which is for the health, safety, and welfare of societj'. But such regulations must be what thej' purport to be, police regula- tions, and must be reasonable when applied to corporations or indi- viduals. What are reasonable regulations, and what are subjects of police powers, must necessarily be judicial questions. The law-making power is the sole judge when the necessitj- exists, and when, if at all, it will exercise the right to enact such laws. Like other powers of government, there are constitutional limitations to its exercise. It is not witiiin the power of the General Assembly, under the pretence of exercising the police power of the State, to en.ict laws not necessar}' to the preservation of the health and safety of the communitj' that will be oppressive and burdensome upon the citizen. If it should prohibit that which is harmless in itself, or command that to be done which does not tend to promote the health, safety, or welfare of societ}', it would be an unauthorized exercise of power, and it would be the dutj- of the courts to declare such legislation void. It seems to us that the ordinance in this case imposes an unreasonable burden upon the railroad company. There is but a single track, so fin- as the record discloses, at the point where it requires the services of a 858 TOLEDO, ETC. RAILWAY CO. V. JACKSONVILLE. [CHAP. V. flagman, and only the usual trains of the company pass over it. It is totally unlike a place where a number of tracks cross a public street upon which there is a great amount of travel, wlftre trains are made up, and where the traius and locomotives doing the work pass and repass each other at short inteivals. The frequency with which trains pass and repass at such places renders the dangers to be apprehended con- stantly imminent, and the legislature may so declare and make it obli- gatory on the company to adopt measuies to secure the public safety'. The rights of the company and the public to the use of the crossing are mutual, but it is the duty of the company to jjrovide the proper safe- guards, and the degree of diligence must be in proportion to the haz- ard. A regulation that would require the company to place a flagman at such a place, or at any place where danger to the public safety, ill the judgment of prudent persons, might be apprehended at any time, would be a reasonable one, and could, unquestionably, be enforced. There can be no necessity, however, for the services of a flagman at a crossing of a public highwa}- in the country', where there is but little travel.] There, it will be a sufBcient protection if the company shall be required to erect signs that will notify persons that the3' are approaching a railroad crossing, and to give the usual signals. It is then the duty of the citizen to exercise a reasonable precaution for the safety- of him- self and his property. It would hardly be insisted a regulation that would compel a railway company to maintain a flagman at every crossing of a public road or street on its entire line would be demanded h\ the public exigencies, or be within the constitutional exercise of the police power of the State. It is a matter of which we ma^- take judicial notice, there does not now exist a necessity to enforce in this State manj- of those rigid regulations that have been adopted on some of the English railways, and in some of the densely populated countries on the continent of Europe. Doubt- less, as the population increases and the dangers multiplj-, it will be- come necessar3% in this country-, to increase precautionar}- measures for the public safety, and the companies will he compelled to bear the ad- ditional burden made necessary by the hazardous business in which they are engaged. It is their work that renders public crossings danger- ous, and hence it is they may be compelled to bear the expenses of such measures as may be adopted to secure the lives and propertj- of those who have an equal right with them to the use of the crossing on the highwa}'. There is nothing at the crossing where the company is required, by the provisions of the ordinance in the case at bar, to keep a flagman, that makes it nnusuall}' dangerous. So far as we know, it is an ordinary crossing. There is but a single track, on which only the usual trains pass at regular and irregular intervals and distance apart. Tlie city has not even deemed it advisable to require the company to slacken the speed of its trains when passing this point, as it is compelled to do by ordinance when crossing other streets in the city. If the company- can CHAP, v.] EX PARTE HODGES. 859 be compelled to maintain a flagman at this point, there is no reason why it could not be compelled to keep one at everj' road and street crossing on its entire line. That there are places where the danger to be appre- hended is so constant and imminent, b}' reason of the construction of the passage-wa}- over the track, the company may be required to employ a flagman to warn persons of the danger and conduct them across, we entertain no doubt, but the point designated in this ordinance is not such a one, at least it does not appear to be so from the ordinance it- self, or from anything in the record. The conclusion that we have reached is, that the ordinance under whicli it was sought to compel the railroad company to maintain a flag- man at the point designated is not a reasonable requirement, and is therefore within the constitutional limitations on the exercise of the police. The judgment of the court below finding appellant guiltj"^ is contrary to law, and must be reversed. Judgment reversed. EX PARTE HODGES. Supreme Court op California. 1890. [87 Cal. 162.] Application to the Supreme Court for a discharge on a writ of habeas corpus. The facts are stated in the opinion of the court. Latimer & Brown, for petitioner. W. S. Tinning, for respondent. Works, J. This is an application for a writ of habeas corpus. The Board of Supervisors of Contia Costa County enacted in the following ordinance. [It is found below in the note.i] The petitioner was convicted of a violation of this ordinance, sen- tenced to pay a fine, and in default of payment, was committed to the county jail. He now prosecutes this proceeding, and asks that he be discharged. The question as to the constitutionality of the ordinance is gravely 1 " An ordinance to provide for the extermination and destruction of ground-squir- rels in the county of Contra Costa. "The Board of Supervisors of the county of Contra Co. Section 1977 of the Eevised Statutes of the United States provides as follows : — "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce con- tracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." . . . [Then follows Art. 6, cl. 2, of the Consti- tution of the United States.] The discrimination against Chinese, and the gross inequality of the operation of this ordinance upon Chinese, as compared with others, in violation of the constitutional, treaty, and statutory provisions cited, are so manifest upon its face, that I am unable to comprehend how this discrimination and inequality of operation, and the consequent violation of the express provisions of the Constitution, treaties, and statutes of the United States, can fail to be apparent to the mind of ever}- intelligent person, be he law3-er or la3-man. The ordinance is not aimed at any particular vice, or any particular unwholesome or immoral occupation, or practice, but it declares it " to be unlawful for anj' Chinese to locate, reside, or carry on business within the limits of the city and county of San Francisco, except in that district of said city and county hereinafter provided for their location." It further provides that " within sixty days after the passage of this ordinance all Chinese now located, residing or carrying on business within the limits of said cit}- and count}- of San Francisco, shall either remove without the limits of said city and county of San Francisco, or remove and locate within the district of the cit}- and county of San Francisco, herein provided for their location." And again, section 4 provides that "any Chinese residing, locating, or carr}ing on business the police department of said city and county of San Francisco to strictly enforce the provisions of this order. " And the clerk is hereby directed to advertise this order a-s required by law- " In Board of Supervisors, San Francisco, February 17, 1890. " Passed for printing by the following vote : Ayes — Supervisors Bingham, Wright, Boyd, Pescia, Bush, EUert, Wheelan, Becker, Pilster, Kiugwell, Barry, Noble." CHAP, v.] IN EE LEE SING ET AL. 863 within tiie limits of the city and county, contrary to the provisions of this order, shall be deemed guilty of a misdemeanor, and upon convic- tion thereof, shall be punislied by imprisonment in the county jail for a term not exceeding six months. Upon what other people are these requirements, disabilities, and punishments imposed? Upon none. The obvious purpose of this order, is, to forcibly drive out a whole community of twenty-odd thousand people, old and joung, male and female, citizens of the United States, born on the soil, and foreigners of the Chinese race, moral and immoral, good, bad, and indifferent, and without respect to circumstances or conditions, from a whole section of the city which they have inhabited, and in whicli they have carried on all kinds of business appropriate to a city, mercantile, manufacturing, and otherwise, for more than forty years. Many of tliem were born there, in their own houses, and are citizens of the United States, entitled to all the rights and privileges under the Constitution and laws of the United States, that are lawfully enjoyed by any other citizen of the United States. They all, without distinction or exception, are to leave their homes and property, occupied for nearly half a century, and go, either out of the city and county, or to a section with prescribed limits, within the city and county, not owned by them, or by the city. Tliis, besides being discriminating, against the Chinese, and unequal in its opcratiQu as between them and all others, is simply an arbitrary confiscation of their homes and property, a depriving them of it, without due process or any process of law. And what little there would be left after aban- doning their homes, and various places of business would again be con- fiscated in compulsorily buying lands in the only place assigned to them, and which they do not own, upon such exorbitant terms as the present owners with the advantage given them would certainly impose. It must be that or nothing. There would be no room for freedom of action, in buying again. They would be compelled to take any lands, upon any terms, arbitrarily imposed, or get outside the city and county of San Francisco. That this ordinance is a direct violation of not only the express pro- visions of the Constitution of the United States, in several particulars, but also of the express provisions of our several treaties with China and of the statutes of the United States, is so obvious, that I shall not waste more time, or words in discussing the matter. To any reasonably intel- ligent and well-balanced mind, discussion or argument would be wholly unnecessary and superfluous. To those minds, which are so constituted that the invalidity of this ordinance is not apparent upon inspection' and comparison with the provisions of the Constitution, treaties, and laws cited, discussion or argument would be useless. The authority to pass this order is not within any legitimate police power of the State See In re Tie Zoy, 11 Sawy. 472, 26 Fed. Rep. QM; Inre Ah Fonq 3 Sawy. 144 ; Ohy Lung v. Freeman, 92 U. S. 275 ; In re Quona Woo, 7 Sawy. 531, 13 Fed. Rep. 229 ; Yich Wo v. Hopkins, 118 U S 3o6, 6 Sup. Ct. Rep. 1064 ; So Ah Kow v. Numan, 5 Sawy. 552 864 MAYOR, ETC. OF BALTIMORE V. EADECKE. [CHAP. V. Let the order be adjudged to be void, as being in direct conflict with the Constitution, treaties, and statutes, of the United States, and let the petitioners be discharged.^ MAYOR, ETC., OP BALTIMORE v. RADECKE. Maryland Court of Appeals. 1878. [49 Md. 2l1'.] Appeal from the Circuit Court of Baltimore Cit3'. The case is stated in the opinion of the court. The cause was argued before Bartol, C. J., Bowie, Miller, and Alvey, JJ. Thomas W. Sail and James L. McLane, for the appel- lant. £J. Duffy and 8. Teuckle Wallis, for the appellee. Miller, J., delivered the opinion of the court. The appellee is ten- ant and occupant of certain premises situated on McClellan's Alley, in a central business locality in the cit3- of Baltimore, where he and his father before him had carried on the business of carpentering and box- making since the year 1853. In 1866 he applied to the Maj'or and City Council for permission, which was granted, to erect and use on these premises and in tlie carrying on of his business, a steam-engine. The resolution gi'anting this permit contained a provision, in conformity to a city ordinance on the subject, that the engine was "• to be lemoved after six months' notice to that effect from the Ma3or." Upon the pas- sage of this resolution he erected and has ever since used a steam- engine in his said business, but some time in the year 1873 the Mayor gave him notice to remove it, which he refused to do. The citj', then, after the expiration of the six months instituted a suit before a justice of the peace, for the penalty of non-removal provided in the ordinance, and the appellee thereupon filed the bill in this case for an injunction to restrain the prosecution of that action and others wliich the city threat- ened to bring from day to day in order to enforce the removal of this engine. Tlie court below on final heai'ing ordered the injunction to be issued as prayed and made it perpetual. From this order the Mayor and City Council have appealed. The city legislation on the subject, in force at the time this permit was granted to the appellee, wsis Jirst, the 56th section of Ordinance No. 33, approved June 5, 1858, by which it was provided under pre- scribed penalties that no person should " erect, build, or have put up any steam saw-mill or machinery, or any steam-engine for any purpose whatever, or planing machine, or machinery within the limits of the city, without first obtaining the sanction of the Mayor and City Coun- cil," and secondly, part of the 5th section of Ordinance No. 78. approved June 9, 1864, which provided that " all permits granted for steam- 1 Compare Ex parte Sing Lee, 96 Cal. 354 (1892). — Ed. CHAP. V.J MAYOK, ETC. Of BALTIMOKE V. KADECKE. 865 boilers and steam engines and boilers may be revoked, and the same shall be removed, after six months' notice from the Mayor, and any one receiving such notice, who shall refuse or neglect to conform to the re- quirements of the same shall pay a ifine not exceeding one hundred dollars, and a further line not exceeding fifty dollars, for every day such refusal or neglect shall continue after the first." It is this last provision which the present case requires us more especially to con- sider, not only because the bill assails its legality and validity, but ^because the injunction complained of restrains the prosecution of suits for the penalties which it imposes for non-compliance with the notice and order to remove given by the Mayor. It is obvious that those who enacted this provision did not suppose it was an exercise of the power *' to prevent and remove nuisance," for it would be a curious anomaly in municipal legislation on that subject, as well as a novel mode of removing a nuisance, to pass an ordinance allowing a nuisance to re- main for six months after the Mayor had determined it to be such, before any steps could be taken to enforce its removal. ||But further than this, a stationary steam-engine is not in itself a nuisance even if erected and used in the midst of a populous citj-, unless it interferes with the safety or convenience of the public in the use of the streets. There is no proof in this record of any such interference, or even that this was the ground of the Mayor's action in giving the notice. Nor was this engine used in connection with any trade or occupation which the law pronounces offensive or noxious. The business of carpentering and box-making is jieither offensive to th« senses nor deleterious to health. In fact, the only complaints made against the engine are its liability, in common with all other steam boilers, to explode, and that it is used in a business in which combustible materials are necessarily brought in dangerous proximity to the fire of its boiler, and it therefore snbjects buildings and merchandise in that vicinity to increased danger from flr€, raises the premiums of insurance thereon, and excites the fears of neighboring owners for tlie safety and security of their prop- erty, but neither one nor all of these circumstances combined, make it a nuisance. Rhodes v. Dunbar, 57 Penn. State Rep- 274. But the legislature has gi-anted ample power of legislation upon the subject of the erection and use of steam-engines within the city limits, to the Mayor and City Council of Baltimore, independent of the power " to prevent and remove nuisances." They are clothed with the power to pass ordinances " for the prevention and extinguishment of fires," for " securing persons and property from danger or destruction, and for promoting the great interests and insuring the good government of the city," and "to pass^ all ordiiiances necessary to give effect and operation to all the powers vested in the corporation of the city." It has been well said in reference to such general gi-ants of power that as to the degree of necessity for municipal legislation on the subjects thus committed to their charge, the Mayor and City Council are the exclusive Judges,, while the selection of the means and manner (contributory to VOL. I. — 55 866 MAYOR, ETC. OF BALTIMOKE V. EADECKE. [CHAP. V. the end) of exercising the powers whieli they may deem requisite to the accomplishment of the objects of which the3- are made the guardians, is committed to their sound discretion. Harrison v. Mayor, &c., 1 Gill, 264. Tliis discretion is very broad, but it is not absolutely and in all cases beyond judicial control. Modern decisions in other States have in some instances extended the control of the courts over municipal ordinances upon the ground of their unreasonableness, further perhaps than the ad- judications in this State would justify us in going. The cases on this sub- ject and the conclusions to be drawn from them are well stated by Judge Dillon in his admirable work on Mi&icipal Corporations, in sections 253 to 260. They will also be found collected in Wood on Nuisances, 774, note 1. While we may not be willing to adopt and follow many of those cases, and while we hold that this power of control by the courts is one to be most cautiously exercised, we are yet of opinion there ■may be a case in which an ordinance passed under grants of power like those we have cited, is so clearly unreasonable, so arbitrar3-, oppressive or partial, as to raise the presumption that the legislature never intended to confer the power to pass it, and to jnstifj- the courts in interfering and setting it aside as a plain abuse of authority. In applying the doctrine of judicial control to this extent, we contravene no decisions in our own State and impose no unnecessary restraints upon the action of muni- cipal bodies. The inquiry then arises is the ordinance in question such as we have described ? To answer this question it is necessary* to con- sider briefly upon what it operates and what mischiefs or wrongs it is capable of inflicting. It is matter of common knowledge as well as of proof in this case, that the use of steam-engines is absolutely neces- sary for the successful prosecution of nearly all the various manufactur- ing, commercial, industrial, and business enterprises which are essential to the prosperity of large cities. Great numbers of them are in constant use in the city of Baltimore for purposes so varied and numerous as to embarrass description, and they are to be found in every business locality and in all sections of the town. In fact, it maj- be safely aflSrmed that their use could not be prohibited or discontinued without the most serio,us impairment, if not destruction, of the prosperit}- and growth of the city. Now it is with these powerful and dangerous but most im- portant and valuable aids to human industry, that this ordinance deals, and what does it do? It does not profess to prescribe regulations for their construction, location, or use, nor require such precautions and safeguards to be provided bj- those who own and use them as are best calculated to render them less dangerous to life and property, nor does it restrain their use in box-factories and other similar establishments within certain defined limits, nor in any other way attempt to promote their safety and security without destrojing their usefulness. ^But it commits to the unrestrained will of a single public officer the power to notify every person who now employs a steam-engine in the prosecution of any business m the city of Baltimore to cease to do so, and b)- pro- viding compulsory fines for every day's disobedience of such notice and CHAP, v.] MAYOR, ETC. OF BALTIMORE V. KADECKE. 867 order of removal, renders his power over the use of steam in that city practically absolute, so that he may prohibit its use altogether. But if he should not choose to do this, but onlj' to act in particular cases, there is nothing in the oi'dinance to guide or control his action. It lays down no rules by which its impartial execution can be secured or par- tiality and oppression prevented. It is clear that giving and enforcing these notices may, and quite likely will, bring ruin to the business of those against whom they are directed, while others from whom they are withheld may be actually benefited by what is thus done to their neigh- bors, and when we remember that this action or non-action maj- proceed from enmity or prejudice, from partisan zeal or animosity, from favor- itism and other improper influences and motives, easy of conceahnent and difficult to be detected and exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of being wrought under cover of such a power, for that becomes apparent to every one who gives to tiie subject a moment's consideration. '* In fact, an ordinance which clothes a single individual with such power hardly falls within the domain of law, and we are constrained to pronounce it inoperative and void^ Resting our decisipn as to the invalidity of this ordinance on this ground, we shall not consider the question whether it is also void as an unauthorized delegation of a public power or trust. In the view we have taken of the case, it becomes unnecessary to express any opin- ion upon that qnestion. It must also be observed that what we have declared void is only that part of the ordinance of 1864, which gives to the Mayor the power to revoke permits for steam engines and boilers, and we are not to be understood as expressing any disapproval of the section of the ordinance of 1858, which requires a permit from the Mayor and City Council for the erection of all such engines within the city limits. The Act of 1872, ch. 1,53, which was referred to by the appellant's counsel as containing a ratification and ajjproval by the legislature of both these ordinances, contains no reference to the ordi- nance of 1864. The section of that Act which is relied on for this rati- fication and approval simply provides that " nothing in this Act shall conflict with the ordinance of the Mayor and City Council of Baltimore, which requires their permission for the erection of steam-boilers in that city." This in plain terms refers exclusively to the ordinance of 18.58, and we by no means affirm that it constitutes a legislative ratification and approval even of that ordinance. As to the question of jurisdiction we have no doubt. ... It follows that the decree appealed from must -be aflflrraed. Decree affirmed.^ ^ See note at pp. 672-673. In State v. Yopp, 97 N. C. 477, 481 (1887), the court (Meerimon, J.) said • " In the case before us, the statute (Pr. Acts, 188.9, ch. 14) forbids every person, 'to use upon the road of said company a bicycle, or tricycle, or other non-horse vehicle, without the express permission of the superintendent of said road,' &c. The purpose of this statu- tory provision is not to destroy the defendant's property, — his bicycle, — or to deprive 868 MAYOE, ETC. OF BALTIMOEE V. EADECKE. [CHAP. V. him of the use of it, in a way not injurious to others, but to prerent him from using it on a particular road — that mentioned — at a particular time or season, when it would, by reason of its peculiar shape, and the unusual manner of using it as a means of locomotion, prove injurious to others, — particularly women and children, constantly passing and repassing in great numbers over the particular road mentioned, in carriages and other ordinary vehicles drawn by horses. The evidence tended strongly to show, that the use of the bicycle on the road materially interfered with the exercise of the rights and safety of others in the lawful use of their carriages and horses in passing over the road. In repeated instances the horses became frightened at them, and car- riages were thrown into the ditches along the side of the road. It was not uncommon for horses to become frightened at them, and became unruly, if the evidence is to be believed. "The statute did not deprive the defendant of the use of his property, — he might have gone another way, — he might have gone at an opportune time, with the express permission of the superintendent of the road. In any case, he had no right to go, using his bicycle, at the peril of other people, he giving rise to such peril. The statute did not, therefore, iu any just sense, destroy his propert3', as contended, or deprive him of the proper and reasonable use of it ; nor was such its purpose. Its purpose was lawful, and in our judgment, it does not provide an unreasonable police regulation, — certainly not one so unreasonable as to warrant us in declaring it void. Such statutes are vali^ unless the purpose, or necessary effect is, not to regulate the use of property, but to destroy it " It is further objected, that the statute leaves it to the arbitrary discretion of the superintendent of the road named to allow or disallow persons to use ' a bicycle, or tri- cycle, or other non-horse vehicle ' on it. This is a misapprehension of the true import of the provision cited: The discretion vested in the superintendent is not arbitrary. He is made the agent of the law, as well as superintendent, and he is bound to exercise the discretion ve^ad in him honestly, fairly, reasonably, and without prejudice or par- tiality, for the just purpose of effectuating the intention of the statute. If there be times, or seasons, or occasions, when persons wishing to use bicycles or other like vehi- cles embraced by the prohibitory clause of the statute in question, it is his plain duty to allow them to do so at such times The authority is not his ; he is simply made the agent of the law for a lawful purpose, and he is amenable as such for any prostitutioa of the power so vested in him, and the creation of the discretion implies that there may be occasions, or times, or seasons, when bicycles may be used on the road. " ' It not infrequently happens, that statutes require particular things to be done, or not to be done, that must be made to depend upon the judgment — discretion — of a designated agent or commissioner, or officer, and the discretion in such cases is not arbitrary, — it is lawful, and must be lawfully exercised.' . . " The learned counsel for the appellant directed our attention to the case of Yick Wo V. Hopkins, 118 U. S. 356. That case, in our judgment, has no application here. The court declared a city ordinance void, upon the ground that its manifest purpose was not a just and reasonable regulation, but unlawful, and the discretionary powers conferred upon certain authorities of the city were purely arbitrary — intentionally so — and therefore unlawful and void. And the same may be said of Mayor and C. of Baltimore v. EadecTce, 49 Md. 217, cited in the case above mentioned. In our case, the purpose of the statute is obviously a lawful one, — a proper regnlation of the use of property, — and the designation of the agent, and the discretionary power conferred upon him, is for the lawful purpose of effectuating the just intent of the statute, and he is amenable, as we have indicated above." Compare Twilley v. Perkins, 26 Atl. Rep 286 (Md. 1893). — Ed. CHAP, v.] STATE V. DEEING. 869 STATE V. DERING. SuPiiEME Court of Wisconsin. 1893. [84 Wis. 585.] Certiorari to a court commissioner of Columbia Countj'. Tills is a proceeding by certiorari to review the decision of C. L. Bering, court commissioner of Columbia County-, in the matter of his refusal to discharge the petitioner, Joseph Garvabad, from custody, and remanding him to the imprisonment of which he complains. It appears from the return of the sheriff of Columbia County to the writ of habeqs corpus issued by the commissioner, that on the 27th day of February, 1893, the petitioner was placed in his custody, and was held therein, under and by virtue of an execution or so-called "commitment," issued by V. Helman, a justice of the peace of the city of Portage in said county, reciting that the city of Portage had recovered a judgment be- fore said justice against the petitioner for the sum of $5, together with $13.85 costs of suit, for the violation of an ordinance of said city, to wit. No. 124, entitled "An Ordinance to regulate Street Parades and insure Public Safety," and commanding the sheriff or any constable of the county to levy the- same on the goods and chattels of the said peti- tioner except such as the law exempts, and in default thereof to take Iiis body and him convey and deliver to the keeper of the common jail of Colombia County, to be there kept in custody for the term of twenty days, unless said judgment with costs was sooner paid or he should be discharged by due course of law. The ordinance in question provides that " it shall be unlawful for anj* person or persons, society, association, or organization, under whatso- ever name, to march or parade over or upon " certain streets (therein named) in the city of Portage, "shouting, singing, or beating drums or tambourines, or playing upon any other musical instrument or instru- ments, for the purpose of advertising or attracting the attention of the public, or to the disturbance of the public peace or qniet, without first having obtained a permission to so march or parade, signed by the mayor of said city. In case of illness or absence of the mayor or other officer hereby designated of the city, such permission may be granted and signed by the president of the council, city clerk, or marshal, in the order named : provided, that this section shall not apply to funerals, fire companies, nor regularly organi|6Wi^ompanies of the State militia : and provided, further, that permissifti^jKO march or parade shall at no time be refused to any political partCTaving a regular State organization. Any person violating any of the Movi^ions of this ordinance shall, upon conviction thereof, be fined in a'Sum not less than two dollars or more than ten dollars." The second section provided that the marshal should accompany such person or persons receiving permission while upon the portion of the streets described, to preserve order, warn the owners of 870 STATE V. DEEING. [CHAP. T. horses upon said portions of said streets, and to carefully preserve the public safet3' ; and when such permission is given by any officer other than the marshal, that he should forthwith notify the marshal of the granting of the same. The sheriff further returned that " the central part of the business portion of the city of Portage is contained within the limits defined In the ordinance, and the streets therein referred to were narrow, and cross and enter each other at various angles, and there was a great deal of traffic over the same, and that the petitioner had been duly and lawfully convicted of a wilful violation of sai^ ordinance upon trial duly and legally had." The petitioner demurred to the return, and the commissioner over- ruled the demurrer and ordered that he be remanded to the custody of the sheriff, to be confined in the county jail of said county according to the terms of said execution. For the relator there was a brief by Rogers & Sail, and oral argu- ment by F. W. Hall. W. S. Stroud, for the respondent. PiNNEY, J. ... It is objected that the ordinance is void on its face, by reason of its operating unequally and creating an unjust and illegal discrimination, not only (1) by the express terms of the ordinance it- self, but (2) it is so framed as to punish the petitioner for what is per- mitted to others as lawful, without any distinction of circumstances, whereby an unjust and illegal discrimination occurs in its execution, and which, though not made by the ordinance in express terms, is made possible by it ; (3) in that it vests in the mayor, or other officers of the city named in it, power to arbitrarily deny persons and other societies or organizations the right secured by it to others to march and parade on the streets named. The general subject and scope of the ordinance is marching, or parading by " any person or persons, societj-, associa- tion, or organization" over the streets named, "shouting, singing, or beating drums or tambourines, or playing upon any musical instrument or instruments, for the purpose of advertising or attracting the attention of the public, or to the disturbance of the public peace or quiet," with- out having obtained permission as prescribed in the ordinance.' It pro- vides, among other things, that the ordinance shall not apply to fire companies, nor to regularly organized companies of the State militia, and that permission to march or parade shall at no time be refused to an3' political party having a regular State organization. p"he permission, it will be seen, is required absolutely to be granted to political parties having a regular State organization, so they are practically- excepted out of the ordinance. Whether permission shall be granted to any other society, civic, religious, or otherwise, depends not upon the char- acter^ of the organization, or upon the particular circumstances of the case, but upon the arbitrary discretion of the mayor or other officers named in the ordinance, acting in his absence. It is therefore argued that, as between different persons, societies, associations, or organiza- CHAP, v.] STATE V. BERING. 871 tions, the ordinance operates unequally and creates unjust and illegal discriminations l>y its express terms, and makes such discriminations not only possible but necessary in its administration, and therefore that the ordinance is void upon common-law principles, as heretofore recog- nized aud administered in the courts of the country. The rights of persons, societies, and organizations to parade and have processions on the streets with music, banners, songs, and shouting, is a well-established right, and, indeed, the ordinance upon its face recog- nizes to a certain extent the legality of such processions and parades, and provides for permitting them, in the discretion of the mayor, in all cases except those named, and as to those the right is practically se- cured. The ordinance, as framed, and as it is to be executed under the arbitrary discretion of the mayor or other officer, is clearly an abridg- ment of the rights of the people ; and in many cases it practically pre- vents those public demonstrations that are the most natural product of common aims and kindred purposes. " It discourages united effort to attract public attention and challenge public examination and criticism of the associated purposes.^ Anderson \. Wellington, 40 Kan. 173, contains a careful discussion and examination of a similar ordinance, which was there held to be void as contravening common right. In In , re Frazee, 63 Mich. 396, after a full discussion by Campbell, C. J., a similar ordinance was also held void, and that it is not in the power of the legislature to deprive any of the people of the enjoyment of equal privileges under the law, or to give cities anj' tyrannical powers ; that charters, laws, and regulations, to be valid, must be capable of con- struction, and must be construed, in conformity to constitutional prin- ciples and in harmony with the general laws of the land ; and that any bj'-Iaw which violates any of the recognized principles of lawful #ind equal rights is necessarily void so far as it does so, and void entirely if it cannot be reasonablj- applied according to its terms :> and no grant of absolute discretion to suppress lawful action can be sustained at all ; that it is a fundamental condition of all liberty, and necessarj' to civil societ}% that men must exercise their rights in harmony with and yield to such restrictions as are necessary to produce peace and good order ; and it is not competent to make anj' exceptions for or against the so- called " Salvation Army " because of its theories concerning practical work ; that in law it has the same right, and is subject to the same re- strictions, in its public demonstrations, as anj- secular bodj' or society^ which uses similar means for drawing attention or creating interest. Hence the by-law there in question, because it suppressed what was in general perfectly lawful, and left the power of permitting or restraining processions and their courses to an unlawful official discretion, was held void ; and that any regulation, to be valid, must be by permanent legal provisions, operating generally and impartially. The return of the sheriff utterly fails to show of what specific oifence the petitioner was convicted ; that is to say, in what particular respect he violated the ordinance. We may infer, however, for the purpose of 872 STATE V. DEEING. [CUXP. V. argument and illustration, from the fact that the petition for the writ addressed to this court states that the petitioner is a member of the Salvation Army, that he was convicted, of parading the streets in that capacity. It cannot be maintained that any person or persons or soci- ety have any right for religious purposes or as religious bodies to use the streets for purposes of public parade because the purpose in view is purely religious and not secular, hut they certainly have the same right to equal protection of the laws as secular organizations. The objections, urged against this ordinance are, we think, fatal to any conviction which: might take place under itj by reason *of its unreasonable and unjust, discriminations and of the arbitrary power conferred upon the mayor or other oflflcer of the citj' to make others in its administration and execu- tion ; so that it is impossible to sustain the conviction in any aspect in' which the question may be viewed. A careful examination of the decisions in various States, and the con- siderations upon which they are founded, is not material to the determi^ nation of the case, for the whole subject is governed and controlled bj the provisions of the Fourteenth Amendment to the Constitution of the United States, already referred to. In construing and applying this amendment, the Supreme Court of the United States have said in Sar- bier v. Connolly, 113 U. S. 27, that it "undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbi- trary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights ; that all persons should be equally entitled to pursue their happiness, and acquire and enjoj- propert)' ; that they should have like access to the courts of the country for the protection of flieir persons and property, the prevention and redress of wrongs, and the enforcement of contracts ; that no impediment should be inter- posed to the pursuits of anjf one except as applied to the same pursuits b}- others under like circumstances ; that no greater burdens should be laid upon one than are laid upon others in the' same calling and condi- tion. . . . Class legislation discriminating against some and favoring others is prohibited, but legislation which, in carrj-ing out a public pur- pose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amend- ment." The entire subject underwent careful examination in the case of Tick Wo V. Hopkins, 118 U. S. 356, where the subject of city ordi- nances and the principles regulating their validit3- were considered. The objections to the validity of the ordinances in that case were, in substance, the same that are urged in this, and the ordinances in ques- tion were held void. The objections urged in the case ot Baltimore v. Madecke, 49 Md. 217, were also in substance the same, for the ordinance in that case upon its face committed to the unrestrained will of a single public officer the power to determine the rights of parties under it, when there was nothing in the ordinance to guide or control his action, and it was held void because " it lays down no rules hy which its impartisd CHAP, v.] STATE V. DEKING. 873 execution can be secured, or partiality and oppression prevented," and that " when we remember that action or non-action may proceed from enmity or prejudice, from partisan zeal or animosity,, from favoritism and other improper influences and motives easy of concealment and dif- ficult to be detected and exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of being wrought under cover of such a power, for that becomes apparent to every one who gives to the subject a moment's consideration. In fact, an ordinance which clothes a single individual with such power hardlj' falls within the domain of law, and we are constrained to pronounce it inoperative and void." The doctrine of this case was approved in Tick Wo v. Hopkins, 1 ISj U. S. 356. . . . Nearly all the processions, parades, etc., that ordinarily occur are excepted from the ordinance in question, followed by a provision that permission to march or parade shall at no time " be refused to any po- litical partj' having a regular State organization.'' It is difficult to see how this can be considered municipal legislation, dictated by a fair and equal mind, which takes care to protect and provide for the parades and processions with trumpets, drums, banners, and all the accompaniments of political turn-outs and processions, and at the same time provides, in efCect, that the Salvation Armj', or a Sunday-school, or a temperance organization with music, banners, and devices, or a lodge of Odd Fel- lows or Masons, shall not in like manner parade or march in procession on the streets named without getting permission of the mayor, and that it shall rest within the arbitrary, uncontrolled discretion of this officer whether they shall have it at all. The ordinance resembles more nearly the means and instrumentalities frequently resorted to in practising against and upon pereons, societies, and organizations a petty tyranny, the result of prejudice, bigotry, and intolerance, than any fair or legiti^ mate provision in the exercise of the police power of the State to protect the public peace and safety. It is entirely un-American and in conflict with the principles of our institutions and all modern ideas of civil lib- erty. It is susceptible of being applied to offensive and improper uses,, made subversive of the rights of private citizens, and it interferes with and abridges their privileges and immunities, and denies them the equal protection of the laws in the exercise and enjoyment of their undoubted rights. In the exercise of the police power the common council may, in its discretion, regulate the exercise of such fights in a reasonable ■ manner, but cannot suppress them,, directly or indirectly, by attempting to commit the power of doing so to the maj^or or any other officerJ The discretion with which the council is vested is a legal disa-etion, to be exercised within the limits of the law, and not a discretion to transcend it orr to confer upon any city officer an arbitrary authority, making him in its exercise a petty tyrant, ^uoh ordinances or regulations, to be valid, must have an equal and uniform application to all persons, soci- eties, or organizations similarly circumstanced, and not be susceptible of unjust discriminations, which may be arbitrarily practised to the hurt, 874 SINGER V. MARYLAND. [CHAP. V. prejudice, or annoj-ance of any. An ordinance which expressly secures to political parties having State organizations the absolute right to street parades and processions, with all their usual accompaniments, and denies it to the societies and other like organizations already men- tioned, except b}- permission of the mayor, who may arbitrarily refuse it, is not -valid, and offends against all well-established ideas of civil and religious liberty. The people do not liold rights as important and well settled as the right to assemble and have public parades and processions with music and banners and shouting and songs, in support of any laud- able or lawful cause, subject to the power of any public officer to inter- dict or prevent them. Our government is "a government of laws and not of men," and these principles, well established by the courts, by the Fourteenth Amendment to the Constitution of the United States, have become a part of the supreme law of the land, so that no officer, body, or lawful authority, can " deny to any person the equal protection of the laws." It is plain that tlie ordinance in question is illegal and void, and for this reason the order of the commissioner must be reversed. By the Court. — The order of the court commissioner is reversed, and the petitioner ordered discharged.^ SINGER V. MARYLAND. Maryland Court of Appeals. 1890. [72 Md. 464.] Appeal as upon writ of error from the Criminal Court of Baltimore. ' The case is stated in the opinion of the court. • The cause was argued before Alvey, C. J., Miller, Robinson, Bryan, Fowler, McSherry, and Briscoe, JJ. David Stewart, for the appellant ; Edgar H. Gans and William Pinkney Whyte, Attornej-- General, for the appellee. Robinson, J., delivered the opinion of the court. The traverser is a plumber b^' trade, and was indicted for refusing to comply with the requirements of the Act of 1886, c. 439, which pro- vides that no person shall engage in the business of plumbing in the city of Baltimore unless such person shall have received from the State Board of Commissioners of Practical Plumbing a certificate as to his competency and qualification. This Act the traverser contends is in violation of Iiis constitutional rights under the Fourteenth Amendment of the Constitution of the United States and of the Constitution of this State, both of which declare that no person shall be deprived of his life, liberty, or property without due process of law. These constitutional safeguards have been so fuUj' considered and discussed by the Supreme 1 See Youngblood v. Binn. Co., 95 Ala. 521 ; see also ante, p. 673, note. — Ed. CHAP, v.] SINGER V. MARYLAND. 875 Court, especially since the adoption of the Fourteenth Amendment, by which the restraint upon the power of the States to pass laws affecting personal and private rights was made a part of the Federal Constitution, that it can only be necessary to refer to the conclusions reached by that court as affecting the question before us. Bent v. Went Virginia, 129 U. S. 114 ; Barbie?- v. Connolly, 113 U. S. 27 ; Muffler v. Kansas, 123 U. S. 623 ; Soon Hlng v. Crowley, 113 U. S. 703 ; Powell v. Pennsyl- vania, 127 U. S. 678. No one questions the right of every person in this country to follow any legitimate business or occupation he may see fit. This is a privilege open alike to every one. His own labor, and the right to use it as a means of livelihood, is a right' as sacred and as . fully protected by the law as any other personal or private right. But broad and comprehensive as this right may be, it is subject to the para- mount right, inherent in every government, to impose such restraint and to provide such regulations in regard to the pursuits of life as the public welfare may require. This paramount right rests upon the well- recognized maxim, Salus populi est suprema lex; and, whatever difficulty there may be in defining the precise limits and boundaries by which the exercise of this power is to be governed, all agree that laws and regulations necessary for the protection of the health, morals, and safety of society are strictly within the legitimate exercise of the police power. Powell v. Pennsylvania, 127 U. S. 678 ; Muffler v. Kansas, 123 U. S. 623 ; Railway Co. v. Beckwith, 129 U. S. 26. As to the com- mon and ordinary occupations of life, little or no regulation may be necessary ; but if the occupation or calling be of such a character as to require a special course of study or training or experience to qualify- one to pursue such occupation or calling with safety to the public interests, no one questions the power of the legislature to impose such restraints, and prescribe such requirements, as it may deem proper for the protec- tion of the public against the evils resulting from incapacity and igno- rance ;land neither section one of the Fourteenth Amendment of the Federal Constitution, nor article 23 of the Bill of Rights of the Constitu- tion of this State, was designed to limit or restrain the exercise of this power. It is in the exercise of this power that no one is allowed to practise law or medicine or engage in the'business of a druggist unless he shall have been found competent, and qualified in the mode and in the manner prescribed by the statute ; and, although the business and trade of a plumber may not require the same training and experience as some other pursuits in life, yet a certain degree of training is abso- lutely necessary to qualify, one as a competent and skilful workman. We all know that in a large city like Baltimore, with its extensive sys- tem of drainage and sewerage, the public health largely depends upon the proper and eflacient manner in which the plumbing work is executed, and, this being so, the legislature not only has the power, but It is eminently wise and proper that it should, provide some mode by which, the .qualifications of persons engaged in that business shall be determined. 876 TEASESEK V. GRAY. [CHAP. V. In considering the power of the legislature to impose restraints upon all persons engaged in certain pursiuits, the Supreme Court say : " The nature and extent of the qualifleations required must depend primarily upon .the judgment of the State as to their necessit3\ If they are ap- propriate to the calling or profession, and attainable by reasonable application, no objection to their validity can be raised." Dent v. West Virginia, 129 U. S. 114. The Act of 1886 now before as provides in the first place that no one shall engage in the business of plumbing except tliose qualified to work as registej^d plumbers ; and, further, that no one shall be qualified tO' work as a registered plumber unless he shall have made application to- and received from the State Board of Practical Plumibers appointed by the government a certificate as to hia competency. These reqnirements are appropriate, aiid relate to the busi- ness of plmmbiug, and are such as the legislature deemed necessary- and' proper for the protection of tlie health of the people of Baltimore against the consequences resulting from the work of incompetent and inexperi- enced plumbers. They are in themselves fair and reasonable, and impose no restraint or qmalification which may not be complied with hj reasonable training and experience. Such an Act is but the ordinary exercise of the police power of the State, and does not violate in anj' sense the constitutional righta of the traverser. Judgment affirmed?- 1 And so State v. Hememann, 80 Wis. 253, as to pharmacists ; and People v. Phip- pin, 70 Iilich. 6 (1888), as to medical men and surgeons, Campbell and Morse, JJ., dissenting. Compare State v. Pennoyer, 65 N. H. 113 (1889), which holds uneonstituf- tional, as being unequal, an exemption from the requirements of such a statute in. favor of medical men who have resided and practised their profession in the place o£ their present residence for the last four years. A similar clause was sustained in People V. Pheppin, ubi supra, the court (XoNW, J., at p. 24) saying; "This Act . . . makes a medical qualification the test of the right to practise. The real test of , the right to practise is that he shall be a ' graduate of any legally authorized raedieal col- lege in this State, or in any one of the United States, or in any other country.' And m this there is no discrimination. Now, the legislature saw fit in establishing this test, to except from its prorlsions a certain class of physicians and surgeons. In so doing it in effect declared that the physieiaiu' or surgeon who had actually practised medicine continuously for at least five years in this State, and who is practising when this Act shall take effect, was as well qualified, in its judgment, to continue the practice of his profession as the student coming fresh from the halls of college with his diploma was to commence it. The reasons which induced the legislature to insert the exception may-have been as varied as the different minds of its members. It certainly had power to insert it, and whetheai tihe power was reasonably or unreasonably e.xereised, or whether it was expedient to enact the hw^ace questions exclusively within the prov- ince of the legislative branch of the State government, and their judgment must neces- sarily be decisive upon these questions. .State v. Dent, 25 W. Va. 1 ; Sx parte Spinney, 10 Nev. 328 ; Wert v. Clutter, 37 Ohio St. 34"." In Trageser v. Gray, 73 Maryland, 250 (1 880), anon-naturalized Prussian applied for a writ of mandamus to compel certain commissioners to issue to him a license for the sale of intoxicating liquors. His petition was dismissed ; and by a proceeding in the nature of a writ of error, he now raised the question whether the Maryland statute of 1890, c. 343, for regulating the sale of intoxicating liquors, was valid. The court (Bryait, J. ) in affirming the order of the court below, said " In the law which we are now considering, the legislature hedged around this traffic with suqh safeguards CHAP, v.] TRAGESER V. GRAY. 877 as were deemed advisable for the purpose of protecting the public interest. It was an effort to restrict the licenses to such persons as would not abuse the privilege con- ierred; to this end the applicant was required to establish his fitness for the privilege by abundant testimony, and to promise, under oath, that he would not permit op his premises certain violations of the law. which have frequently been associated with the traffic, and wliich have caused great scandal, immorality, and disorder. And by section 653 /, it was enacted that the license should be refused in all cases, whenever, m the opinion of the said board, such license is not necessary for the accommodation of the public, or the petitioner or petitioners is or are not fit persons to whom such license should be granted ; and if sufficient cause ahaU at any time be shown, or proof be made to the said board, that the party licensed was guilty of any fraud in procuring such license, or has violated any law of the State relating to the sales of intoxicating liquor,' the said board shall, after giving notice to the person so licensed, revoke said license; and the criminal court of the city may in lilse maimer revolse said license, if the party should be convicted before it, of any such violation. It was thought proper to confine the license to citizens of the United States, of temperate habits and good moral character. The privilege is very lialile to be abused, and abuses would produce great public detriment. It therefore seemed wise to the legislature to confer it only on those who, being natives of the country, miglit reasonably be supposed to have a regard for its welfare; or who, not being natives, liad, as required by the natu- ralization law, proven by credible testimony before a court of justice, that they were attached to the principles of the Constitution of the United States, and were weU dis- posed to their good order and happiness. It was certainly the function of the law- maliing department to exercise its judgment on this (juestion, and this court has no right to criticise its conclusion. We do not think that this law is, in any manner, in conflict with the Constitution of this State. " We regard it as included ' in that immense mass of legi.slation which embraces everything within the territory of a State, not surrendered to the general government.' Gibbons V. Ogden, 9 Wheaton, 203. It has been uniformly held in all courts that no clause in the Federal Constitution interferes with the power of the States to promote and protect the public health, peace, morals, and good order within their respective limits. ... It is, however, maintained by the appellant that although this statute was passed apparently for the purpose of exercising this "power, yet it is in conflict with the Fourteenth Amendment, because it denies to persons not citizens of the United States the right to obtain licenses to retail liquor, and thereby makes an unconstitutional dis- crimination against them. The section of the amendment supposed to be involved is in these words : ' No State shall make or enforce any law whicli shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law ; nor deny to any person-within its jurisdiction the equal protection of the laws.' It cannot he said that any man, alien or citizen, has a natural right to retail intoxicatins liquor. According to Bartemei/er v. Iowa, 18 Wallace, 129, it is not one of the privileges and immunities of citizens of the United States. In Mugler v. Kansas, 123 V. S. fi23, it was said that 'such a.right did not inhere in citizenship,* and that it could not be said that govern- ment interfered with or impaired any one's constitutional rights' of liberty or property, when it prohibited the manufacture and sale of intoxicating drinks. And it was held that this prohibition might be made although it would destroy or greatly diminish the value of manufactories, which had been erected when it was lawful to engage in such business. In Kidd v. Pearson, 128 U. S. 1, a statute of Iowa prohibited the manufac- ture or sale of intoxicating liquors except for mechanical, medicinal, culinary, and sacramental purposes ; but any citizen of the State was permitted to mamifacture or Jbny and sell for these purposes, except hotel-keepers, keepers of saloons, eating-houses, grocery-keepers, and confectioners. The Supreme Court decided that the statute did not in any way contravene any provision of the Fourteenth Amendment. We see that the privilege granted was confined to citizens of the State, and that there was a dis- crimination against five classes of these citizens. But in truth, the valid exercise of the police power does not depend on any question of discrimination for or against particu- 878 TEAGESEE '■». GEAY. [CHAP. V. lar persons or classes 6f persons. It is confided to the wisdom of the legislature to make such application of it as the public welfare may require. In the case of occupa- tions which may become injurious to the community, they may prohibit them alto- gether, or they may permit them only in certain localities and on certain terms and under certain restrictions, or they may grant the privilege of pursuing them to some persons and deny it to others. Individual interests are not all considered in the exer- cise of this power. They must yield when they are in opposition to the public good. And the legislature is to determine what measures will best promote the public good in dealing with these matters. In Mugler v. Kansas it was said that it was not to be supposed that the Fourteenth Amendment was intended to impose restraints on the exercise of the police power by the States. It was also said that a State could not by any contract limit its exercise of this power where tVk public health and the public morals would be prejudiced ; and a ca,se was cited with approval {Stone y. Mississippi, 101 U. S. 814), where a charter to conduct a lottery had been granted to a private corpora- tion for a large moneyed consideration, and was afterwards repealed, and the repeal wag sustained as within the police power of the State And in the same case the court stated with great emphasis tlie necessity of upholding State police Regulations which were enacted in good faith and which had appropriate and direct connection with that protection to life, health, and property which each State owes to its citizens And in this case, and subsequently in Powell v. Pennsi/lvania, 127 U. S. 684, it was shown that a statute enacted in good faith for the exercise of the police power could not be re- garded as repugnant to the Fourteenth Amendment, uukss it had no real or substan- tial relation to the objects of such power. In the Slaughier-House Cases (16 Wallace, 86), it was held that in the exercise of the police power the State of Louisiana could lawfully grant to a single corporation, for twenty five years, the exclusive privilege of maintaining slaughter-houses in a district of country containing more than eleven hun- dred square miles, and including the city of New Orleans The trade of a butcher, though of great utility and necessity, is liable under some circumstances to injure the public health, and was, therefore, liable to this sort of legislation. " There are cases, unquestionably, in which discriminations against particular persons or classes of persons would be unlawful. They are indicated in Powell -v. Pennsi/lvanid and in many other cases, especially in the cases affecting the legislation of California on the subject of the Chinese. It is held that every one has a right to pursue an ordinary calling on terms of equality with all other persons in similar circumstances ; that is, a calling not in any way injurious to t\ie community, or likely to become so. .The court did not, in Powell v. Pennsi/lvania, regard the making of oleomargarine as an ordinary business ; nor in McGahey v. Virginia, 135 U. S. 712, was the traffic in ardent spirits so regarded. In the Chinese Cases, Re Parrott, 6 Sawyer, 349 ; Re Ah Chang, 6 Sawyer, 451, and Yick Wo. v. Hopkins, 118 U. S. 356, the legislation in question was directed against the Chinese, and was intended to prevent them from earning a livelihood by their own labor; or, at least, to impede and embarrass them as much a-s possible in their efforts to do so. This was most clearly evident, not only from the statutes and ordinances themselves, but from the article in the Constitution of California, under which they were framed. This article (19th) was entitled ' Clilnese,' and it provided that no corporation should employ, directly or indirectly, in any capacity, any Chinese or Mongolian ; that no Chinese should be employed on any State, county, municipal or other work, except in punishment for crime ; it declared that the presence of foreign- ers ineligible to become citizens (meaning the Chinese) was dangerous to the well- being of the State; and the legislature were directed to discourage their immigration by all means within their power, and were also directed to delegate all necessary power to the incorporated cities and towns of the State for the removal of Chinese beyond their limits, or for their location within prescribed portions of those limits; and were also directed to provide the necessary legislation to prohibit the introduction of Chi- nese into the State. One of the judges in Parrolt's Case said of this article, ' It is in open and seemingly contemptuous violation of the provisions of the treaty which give to the Chinese the right to reside here with all the privileges, immunities and exemp- tions of the most favored nation. It is, in fact, but one and the latest of a series of CHAP, v.] ■ , TEAGKSEK V. GRAY. 879 enactments designed to accomplish the same end.' 6 Sawyer, 365. It was apparent to the courts which decided these cases that, although the statutes and ordinances in question were in the form and fashion of police regulations, yet in reality, iu substance and in effect, they were enactments to take aWay from the Chinese the right to labor for a living. " They struck at those inalienable rights which belong to human beings at all times and in all places. They denied them the equali protection of the laws in particulars essen- tial to their means of existence. Their evident effect and purpose were to accomplish an unconstitutional result, and therefore they were necessarily declared to be void. The stat- ute now before us oppresses lio one, and was intended to oppress no one. It does not take from any man a solitary right, privilege or immunity. It subjects no one to penalties for its violations which are not imposed equally on all offenders. It does not, it is true, make an equal partition of the privilege of liquor selling among all classes of persons. But there is no warrant for supposing that legislative control over this traffic must conform to any such standard. It is not crippled by any such restraint. It overrides all pri- vate interests and embraces all means which are necessary and proper to protect the public from evils connected with the subject. Assuredly the Supreme Court did not consider this control as limited by the necessity of making an equal distribution of favors, when it said in speaking of the trade in liquor and its consequences : ' The police power which is e.xclusively in the States is alone competent J;p the correction of these great evils, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority.' Mugler v. Kansas, 123 U. S. 659. Nor is any such limitation consistent with the decisions in Stone v. Mississippi, 101 United States, 814 ; Beer Co. v. Mnssachusetts, 97 United States, 25 ; and Fertilizing Company v. Hyde Park, 97 United States, 659. In one of these cases a franchise which had been pur- chased from the State was taken away from the purchaser without compensation to him, because it was considered by the legislature to be hurtful to the public morals. In the other two cases, by the exertion of the police power, property of vast amount was rendered valueless, although it had been acquired under the express sanction of the legislature. It is needless to refer again to the Slaughter- House Cases, where there was a severe discrimination in favor of a single corijoration and against every one else, solely because the protection of the public health was involved. " It has been maintained that the appellant (Trageser) has rights under existing trear ties which have been infringed by the denial of licenses to aliens. Our opinion on this question has been sufficiently indicated. But a few words more may be added. If we assume, for the sake of argument, that Trageser has under treaties every right which a citizen could have, the answer is that no citizen of the United States can complain because a police regulation denies him the privilege of selling liquor, even if the privi- lege is granted to other citizens. We are unable to conceive that any one, citizen or alien, can acquire rights which conld in any way control, impair, impede, limit or diminish the police power of a State. Such power is original, inherent and exclusive ; it has never been surrendered to the general government, and never can be surren- dered without imperilling the existence of civil society. " The Act of Assembly involved in this controversy being in our opinion in all re- spects a valid law, it is perhaps unnecessary to say anything more ; but we will observe that, even if tlie clause relating to aliens were unconstitutional, the other portions of the statute would not be affected. Aliens could not even, in that event, obtain licenses to sell liquor without the approval of the Board of Commissioners. " The order refusing the mandamus must be affirmed. Order affirmed.''^ Alvey, C. J;, and McSherrt, J., concurred in the affirmance of the order appealed from, refusing the mandamus, but for reasons different from those assigned in the opinion of the majority of the court. 1 Compare Peiry v. City Gov., 7 Utah, 143. — Ed. 880 RICE ET AL. V. PAKKMAN. [CHAP. V. EICE ET AL, V. PAEKMAN. Supreme Judicial Coukt of Massachusetts. 1820. [16 Mass. 326.] ^ A WRIT of entry. The demandants claim as heirs of their mother (who died in 1792), and entitled to the possession upon the death of their father, in 1815, tenant by the curtesy. The tenant set up title through one Homer, to whom the father had sold th^ demanded premises under a legislative resolve, purporting to authorize the father, on giving bond, to sell and convey &nd to invest the proceeds for the use of the said children. The demandants reply, protesting that there was no such resolve or sale, and traversing the giving of the bond. Issue was joined upon the traverse, and a verdict returned, that the bond was given according to the directions of the resolve. The demandants objected at the trial, that no authority to sell the estate could be legally derived from the said resolve ; but that the same was wholly void, as respected them ; especially as it did not appear that any notice was given before the license was granted. This objec- tion was overruled by the Chief Justice, before whom the trial was had, November Term, 1818. A new trial was to be granted, if, in the opin- ion of the court, the said resolve did not give authority to sell as aforesaid. . Ward, for the demandants. Gallison, for the tenant. Parker, C. J., delivered the opinion of the court. If the power, by which the resolve, authorizing the sale in this case, was passed, were of a judicial nature, it would be ver^- clear, that it could not have been exercised by the legislature, without violating an express provision of the Constitution. But it does not- seem to us to be of this description of power ; for it was not a case of controversy between partj' and partjs nor is there any decree or judgment, affecting the title to prop- erty. The only object of the authority granted by the legislature was, to transmute real into personal estate, for purposes beneficial to all who were interested therein. This is a power frequentl}' exercised bv the legislature of this State, since the adoption of the Constitution ; and by the legislatures of the province, and of the colony, while under the sovereignty of Great Britain ; analogous to the power exercised by the British Parliament, on similar subjects, time out of mind. /Indeed it seems absolutely necessary for the interest of those, who, by the general rules of law, are incapacitated from disposing of their property, that a power should exist somewhere, to convert lands into monej'. For otherwise many minors might suffer, although having property ; it not being in a con- 1 The statement of facts is shortened, — Ed. CHAP, v.] KICE ET AL. V. PAEKMAN. 881 dition to yield an income. Thiis power must rest in the legislature in tbis Commonwealth ; that body being alone competent to act as the general guardian and protector of those who are disabled to act for themselves. It was undoubtedly wise to delegate this authority to other bodies, whose sessions are regular and constant, and whose structure may enable them move easily to understand the merits of the particular applications brought before them. But it does not follow that, because, the power has been delegated by the legislature to courts of law, it is judicial in its character. For aught we see, the same authority might have been given to the selectmen of each town, or to the clerks or registers of the counties ; it being a mere ministerial act, certainly requiring discretion, and sometimes knowledge of law, for its due ex- ercise ; but still partaking in no degree of the characteristics of judicial power. It is doubtless included in the general authority, granted by the people to the legislature in tlie Constitution. For full power and authoritj' is given, from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes and ordi- nances, directions and instiuctions (so as the same be not repugnant or contrary to the Constitution), as tliey sliall judge to be for the good and welfare of the Commonwealtli, and of the subjects thereof. No one imagines that, under this general authority, the legislature could deprive a citizen of his estate, or impair anj' valuable contract in which he might be interested. But there seems to be no reason to doubt that, upon his application, or the application of those who properl3" represent iiim, if disabled from acting himself, a beneficial chano-e of bis estate, or a sale of it for purposes necessary and convenient for the lawful owner, is a just and proper subject for the exercise of that autlior- ity. It is, in fact, protecting him in his property, which the legislature is bound to do; and enabling him to derive subsistence, comfort, and education from property, which might otherwise be wholly useless dur- ing that period of life, when it might be most beneficially employed. If this be not true, then the general laws, under which so many estates of minors, persons non compos mentis, and others, have been sold and converted into monej', are unauthorized by the Constitution, and void. For the courts derive their autliority from the legislature, and it not being of a judicial nature, if the legislature had it not, they could not communicate it to any other bod}'. Thus, if there were no power to relieve those from actual distress, who had unproductive property, and were disabled from conveying it themselves, it would seem that one of the most essential objects of government, that of providing for the welfare of the citizens, would be lost. But the argument, which has most weight on the part of the demand- ants, is that the legislature has exercised its power over this subject, in the only constitutional way, by establishing a general provision ; and that, having done this, their authority has ceased, they having no right VOL. I. — 56 882 BKEVOORT V. GBACE ET AL. [CHAP. V, to interfere in particular cases. And if tiie question were one of ex- pediency only, we should perhaps be convinced by the argument, that it would be better for all such applications to be made to the courts empowered to sustain them. But as a question of right, we think the argument fails. The con- stituent, when he lias delegated an authority without an interest, may do the act himself, whicli he has authorized another to do ; and espe- x;iall\- when that constituent is the legislature, and is not prohibited by the Constitution from exercising the authority. Indeed the whole authority might be revoked, and the legislature resume the burden of this business to itself, if in its wisdom it should determine that the common welfare required it. It is not legislation, which must be by general acts and rules, but the use of a parental or tutorial power, for purposes of kindness, with- out interfering with, or prejudice to the rights of any, but tiiose who apply for specific relief The title of strangers is not in any degree affected by such an iuterposition. In the ease before us, the object sought for could not have been obtained in the ordinar}- waj- of a license from a court of law ; for by that nothing could have been sold but the reversion belonging to the heirs ; and tiie proceeds of that alone wonld have been put at interest ; whereas, by a sale of the whole, as was authorized by the legislature, there is no doubt a better price was obtained, and the proceeds finally coming to the heirs were greater than they would otherwise have been. It is true, that the same purpose might have been effected substan- tially by a license to sell the reversion, and a sale of the estate for life without license by the tenant of the freehold. But still the pro- ceeds would not have been vested so beneficially, as they were under the actual sale. We do not consider notice to have been essential, if the fact be that none was given. The father acted as guardian, and he had no interest adverse to that of' his cliildren. Notice is not required by law to be given, upon applications for the sale of the estates of minors.^ Judgment for the tenant on the verdict. In Brevoort v. Grace- et at, 53 N. Y. 245, 250 (1873), the Court of Appeals (Grover, J.) said: "The real question in the case is whether the legislature has the power, by special Act, to authorize ' In Holden v. James, 11 Mass. 397, the court decided that the legislature could not suspend the operation of a general law to give a remedy in favor of an individual, although the Constitution provides that the power of suspending the laws, or the exe- cution of the laws, maj' be exercised by the legislature, or by authority derived from the legislature, to be exercised in such particular cases only as the legislature shall expressly provide for ; and although the practice, ever since the adoption of the Con- stitution, had been to enact remedial laws in like cases But tlie soundness of this decision has been questioned. — Ed. [of 11 MasSi Rep] fJee Davison v. .Tnhnnnnt, 7 Met. 388 ; Sohier v. Mass. Gen. Hospital, 3 Cush. 483 ; Sohkr V. Trin. Ch., 109 Mass. 1. — Ed. CHAP, v.] BEEVOOKT V. GRACE ET AL. 883 t and provide for the sale of the interest of known parties who have attained their majority and who are competent to act for themselves in real estate, and convert the same into personal, and provide for the in- vestment and management of the proceeds without their consent, upon the ground that such sale would, iu their judgment, promote the interest of such parties and others who are infants or who are not in being, and cannot, therefore, provide for the management of the property. If the legislature possesses this power, the Act in question is valid in all le- spects,not only for the reason tliat in the present case it clearly appears that the Ufe tenants would be greatly benefited bj* a sale, but also made highly probable that the interests of those in remainder would be pi-o- moted. It thus appears that if such power is possessed, this is a proper case for its exercise. But if the legislature possesses the power, it also has the power to determine whether the case presented is one proper for its exercise, and its determination is conclusive, as also of the mode and safeguards under which it shall be exercised. Henry Brevoort has, under the will, the remainder in fee iu case he shall survive his mother, subject to open and let in any other children of Mrs. Brevoort who n>ay hereafter be born, who shall survive her. We have seen that his title would pass under the deed of the referee, for the reason that he united in the petition and thereby assented to the proceedings under which the sale was made. " Special Acts of the Legislature, authorizing the sale of the real estate of infants and others incapable of acting for themselves, have been held valid in this State, and that a valid title as to such persons is acquired under sales pursuant to such Acts. Clarke v. Van Surlay, 15 Wend. 436. The same case was before the Court of Errors in the name of Cochrane and Wife v. Van Surlay, 20 Wend. 365, when the same rule ■was held, based upon the same reason, that it was the legitimate exer- cise of that paternal power over the persons and property of infants, ■which under the common law was an inherent right of sovereign power, which might be exercised under general laws or under peculia^- circum- stances by special legislation. But in his opinion in this case, Ver- planck, Senator, says, speaking of clauses in the Constitution of 1822 ■which are also contained in the present Constitution : ' Further protec- tion is given to property by adding a prohibition against the taking of private property for public use without just compensation, and also "an- other against the depriving any one of life or property without due process of law and by mere arbitrary legislation, under whatever pre- text of public or pi-ivate good.' " In Williamson v. Berry, 8 How. 495, and in a subsequent case, the Supreme Court of the United States determined differently upon the same title, but the difference between that and the courts of this State was not as to the power of the legislature to authorize the sale, but as to whether the consent of the Chancellor, etc., which was required by the Act, had been properly given, so as to give validity to the sale. "In »tiydix, 6 How. 507 ; Lake Shore db Michigan Southern Railway v. Chicago <& West- ern Indiana Railroad, 97 111. 506 ; Chicago & Northwestern Bail- way \. Chicago & Evanston Railroad, 112 111. 589. " For these reasons, a majority of the court are of opinion that the St. of 1888, e. 342, is not in conformity with the Constitution of the United States. It follows, that the petitioner has no title to the prop- erty in the hands of the trustees of the Cary Library, and that the petition must be dismissed. Petition dismissed." ^ THE GOVEENOE AND COMPANY OF THE CAST PLATE MANUFACTUREES v. MEREDITH Ht al. King's Bench, 1792. [4 Durnf. Sr East, 794.] This was an action upon the case, in which the plaintiffs declared, That before and at the time of committing the grievances mentioned, they were and from thenceforth hitherto have been and still are pos- sessed of a certain messuage, &c. and a certain yard or piece of land, with divers (to wit) three warehouses erected and built thereon, situate on the north side of High-Ground Street, in the parish of Christchurch in Surrey ; and also of a certain entrance or gateway leading from the street through and undei* the messuage into the yard or piece of land ; 1 In Hammett y. Philadelphia, 6a Pa. St. 152 (1870), ShaAswood, J., for the court, said; "It has been said by Judge Field, of California, now on the bench of the Supreme Court of the United States, that ' money is not that species of property which the sovereign authority can authorize to be taken in the exercise of its right of eminent domain. That right can be'exercised only with reference to other property than money, for the property taken is to be the subject of compensation in money itself ; and the general doctrine of the authorities of the present day is, that the com- pensation must be made, or a fund provided for it in advance.' Burnett v. Sacramento, 12 Cal. 76. I am not able, and do not feel disposed tp enter the lists upon such a ques- tion, but it does seem to me that there may be occasions in which money may be taken by the State in the exercise of its transcendental right of eminent domain. Such would be the case of a pressing arid immediate necessity, as in the event of invasion by a public enemy, or some great calamity^ as famine or pestilence, contributions could be levied on banks, corporations, or individuals. The obligation of compensation is not immediate. It is required only that provision should be made for compensation in the future. Judge Ruggles confines the right to exact money by virtue of the eminent domain to the case where it is for the use of the State at large in time of war. The People ex rel. Oriffin v. Brooklyn, 4 Comst. 419. I cannot see that there is any such necessary limitation. The public necessity which gives rise to it, prevents its being restrained by any limitations as to either subject or occasion." Compare People v. Mayor of Brooklyn, 4 N. Y. 419, 424. — Ed. 1046 CAST PLATE MANUFAOTUKEES V. MEREDITH ET AL. [CHAP. VI. and which said entrance during all the time aforesaid, until, &c. was used and of right, &c. by the plaintiffs, for the passing and repassing of cartsi wagons, and other carriages, in the service of the plaintiffs into and out of the j-ard or piece of land for the more convenient and beneficial enjoyment and occupation of the j'ard, and of the warehouses, &c. yet that the defendants on, &c. wrongfully and injuriously raised, &c. the said street, and the soil and pavement thereof, before the said entrance, &c. by placing great quantities of wood, &c. upon the street, &c. there, to a much greater height than the street or the soil and pavement thereof were before raised, (to*wit) to the height of four feet move, &c. and so close and near, &c. to the entrance, that it was and still is thereby greatly blocked up and obstructed, insomuch that the carts, &c. employed in the service of the plaintiffs have been and still are thereby prevented from passing and repassing through the entrance, and the plaintiffs are thereby ihuch injured, &c. The defendants pleaded the general issue ; and at the trial at King- ston before Gould, J. a verdict was found for the plaintiffs with £150 damages, subject to the opinion of this court on the following case. The plaintiffs were possessed of the premises mentioned in the decla- ration under a lease for ninety-five j-ears from Christmas, 1777. The warehouses standing in the yard have been used by them since they have been in possession for the depositing and keeping of plate-glass, which is a commodity of large value ; and verj' brittle in its nature. The gateway in question before the committing of the grievance was of the height of twelve feet and one inch, from the old pavement, with which the street in question had been formerly paved ; and the gateway was used for the purpose of admitting wagons into the yard, loaded with plate-glass, that they might be unloaded at the door of the ware- houses. The defendants, who acted as pavers under the authority of the commissioners, named in an Act passed in the last session, for pav- ing, ,&c. Upper-Ground Street in the parish of Christchurch in Surrey, and certain other streets, &c. raised ' the pavement two feet and one inch higher than the old pavement. ' The gateway in the centre of , the arch is only ten feet high from the. level of the new pavement, so that the height of the gateway is now reduced two feet and one inch. The defendants soon after the passing of the above Act of Parliament, and before the commencement of the present action, in order to execute the powers and provisions of the said Act, proceeded to take the level of the street, in order to its being paved ; and for that purpose they caused a straight and halt line to be drawn in the front of the houses in the street, showing the level and height of the new intended pavement. And about three months afterwards the defendants laid the ground according to such level and agreeably to the line so marked out, and paved the same, which now makes a regular inclined plane with a decli- nation of only one foot of perpendicular height in seventeen feet of 1 By sect. 13, the commissioners were empowered to cause the said street, &c to be paved, repaired, raised, sunk, or altered, &c. CHAP. VI. J CAST PLATE MANUFACTUREKS V. MEREDITH ET AL. 1047 length ; and it would not be effectual if done in any other way : whereas in the original state the declination was about one foot in twelve, which was a very unsafe declivity for horses and carriages going up or down. The line so made was necessary and proper ; and any alteration of the inclined surface of the street less material was not sufficient to render the street safe for carriages passing through. In order to admit car- riages as heretofore it will be necessary to take down the arch and lieighten the same. The case then stated, that by these means the plaintiffs are deprived of the use of the gateway' as they had it before, and wagons and other carriages are prevented passing to their ware- houses, and are obliged to be unloaded in the street. It was also proved that the plaintiffs had given notice to the defendants^ and also to the commissioners, that unless the buildings were so altered as to enable the plaintiffs to enjoy their warehouses as they did before the Act passed, an action would be brought against them for a satisfaction in damages. Garrow, for the plaintiffs, relied upon the case of Leader v. Moxon and Others,^ which was directly in point with the present ; and estab- lished the principle, that the commissioners under such an Act as the present are liable to make good to individuals any actual damage sus- tained by their acts. And this is founded in good sense, for it could never be supposed to be the intention of the legislature that the avenue to one man's house should be blocked up for the convenience of his neighbors without some compensation. Fieldi7ig, contra, was stopped by the court. Lord Kenyon, Ch. J. If this action could be maintained, every turnpike Act, paving Act, and navigation Act, would give rise to an infinity of actions. If the legislature think it necessary, as they do in many cases, they enable the commissioners to award satisfaction to the individuals who happen to suffer. But if there be no such power the parties are without remedy, provided the commissioners do not exceed their jurisdiction. But it does not seem to me that the commissioners acting under this Act have been guilty of any excess of jurisdiction. Some individuals suffer an inconvenience under all these Acts of Parlia- ment ; but the interests of individuals must give way to the accommo- dation of the public. I doubt the accuracy of the report of the case cited from Wils. ; for I cannot conceive that the judges, in considering whether or not the action could be supported, laid any stress on the enormit3' of the damage sustained by the plaintiff. That circumstance might have induced the jury to increase the damages, if the action could be supported, but could not of itself give a cause of action : that must have depended on the question, whether or not the commissioners exceeded their jurisdiction. BuLLEK, J. The question here is, whether or not this action can be maintained ? and I am clearly of opinion that it cannot, because a par- 1 3 Wils, 461, vid. 2 Bl. Eep. 924, 8. o. [See ante, 673, n. — Ed.] 1048 CALLENDEE V. MAKSH. [CHAP. VI. ticular remedy is pointed out by the Aot.^ If there had been no clause in the Act empowering the commissioners to give satisfaction to theparty grieved, I am by no means satisfied that, on the broad principle stated by the plaintiffs' counsel, any action could be maintained* There are many cases in which individuals sustain an injury, for vrhich the law gives no action ; for instance, pulling down houses, or raising bulwarks, for the preservation and defence of the kingdom against the king's enemies. The civil law writers indeed say, that the individuals who suffer have a right to resort to the public for a satisfaction : but no one ever thought that the common law gave an action against the individual who pulled down the house, &c. This is one of those cases to which the maxim applies, sahts populi suprema est lex. If the thing complained of were lawful at the time, no action can be sustained against the party doing the act. In this case express power was given to the commis- sioners to raise the pavement ; and, not having exceeded their power, they are not liable to an action for having done it. Grose, J. The clause in the act which empowers the commission- ers to award satisfaction, is decisive against this action. Postea to the defendants. CALLENDER v. MARSH. StTPEEME Judicial Court OF Massachusetts. 1823. [1 Pick. 418.1 This was aa action of trespass on the case for digging down the streets by the plaintiff's dwelling house, in Boston, and taking away the earth, so as to lay bare the foundation walls of the house and endanger its falling ; in consequence of which the plaintiff was obliged, at great expense, to build up pew walls, and otherwise secure the house, and render it safe and convenient of access, as before. The defendant pleaded the general issue, and filed a brief statement, pursuant, to the statute, in which he set forth his appointment and qualification as surveyer of the highways for the city of Boston, the condition of the street, and the purposes for which the acts complained of were done. At the trial before Parker, C. J., the plaintifl^' proved the digging down of the streets, as stated in his declaration, and gave evidence of the trouble and inconvenience which he had suffered in consequence. His house was built about twenty years ago, the streets having been previously laid out. 1 The 46th section authorized the commissioners " to make any allowance, or pay part of the expenses incurred by the proprietors of any such, house or building, in re- moving any of the obstructions, nuisances, or annoyances, as aforesaid, in such cases where the proprietors should or might be materially injured on account of the pave- ment being necessarily raised or lowered, and whereby such cases might be particu- larly entitled to some compensation." CHAP. VI.] CALLENDEE V. MARSH. 1049 The defendant proved, by the certificate ' of the city clerk (which evidence was not objected to), that he was appointed oHe of the sur- veyors, of highways on the 13th of May, 1822, and that he was sworn into ofiBce on the 17th of the same month. No limits Were assigned to the surveyors respectively by the city government. The defendant also proved, that he did the acts complained of in virtue of his supposed authority as surveyor. Before he began the digging, he consulted with Babcock, the only other acting surveyor at the titne, and after the appointment of Cotton, with him also ; having begun the work before Cotton was appointed. He also proved, that for a year or two pre- ceding, propositions had been made to the selectmen for levelling aild digging down the streets, and that plans and' levels had been taken for that purpose, 'with a view to reduce the slope, which waS so steep as to render it difficult to pass up and down the streets with carts and car- riages. No order of the selectmea or of theit successors, the mayor and aldermen, on this subject was offered in evidence, nor did it appear that either of those boards had acted thereon, in any other manner than by appointing a committee to take care of the streets. This commit- tee was frequently present during the performing of the acts com- plained of, and approved of them ; and the bills of some of the work- men were rendered to the city officers and by them passed. ' A verdict was taken for the plaintiff, subject 'to the opinion of the whole court. J. T. Austin, for the defendant ; Davis, Solicitor General, and Hand, for the plaintiff. The opinion of the court was delivered at the following November term, by Parker, C. J. . . . The counsel for the plaintiflf haVe, with laudable diligence, looked into the civil law, to see what course was pursued in ancient times respecting public roads, presuming that on a subject of such common concern the principles adopted by all governments in all times would be nearly the same ; and although our own statutes are to be the sole guide of decisions in matters altogether of a local nature, it is well enough to see whether any information can be drawn from so ancient a source, in regard to the use and meahing of terms employed by our own legislature. The general care of the roads was in the iEdiles ; who probably exercised the power and jurisdiction which is given by our statutes to the court of sessions. These appointed subordinate agents for the care of roads within the 'city, who were called quatuor viri from their number ; and to the duum viri was given the care of the roads without the city. These officers probably answered to the character of our surveyors. The first were called quatuor viri, viis urbanis curatidis ; the second, duum, viri, viarum publicarum extra urbem curatares. Their duty was among other things adcequare, to level the highwalys, and to construct bridges when necessary. Each individual citizen was obliged to make certain repairs near his own house, as our citizens are 1050 CALLENDER V. MARSH. [CHAP. VI. obliged to make and keep in repair the sidewalks. The interdict which was quoted in the argument, viz. Interdictum hoc perpetuo dabitur, et omnibus et in omnes, &c. related to private persons, not to any of the above-named public officers. Heinecc. sec. Ord. Pand. part. 1, § 74; B. 1, 2, 2, 30 ; D. 43, tt. 10, 11, 19, et notis. No inference can be drawn from these provisions in favor of the plaintiff in the present action, as it does not appear that any means were provided of idemnifying those who might be put to charge or expense in consequence of the necessary repair of the highways ; nor does it appear that the levelling a way *lready laid out was a subject of adjudication on which persons bordering on the road were parties, having a right to claim compensation. And indeed if such were the provisions of the Roman law, it is diflttcult to perceive how they could be introduced into ours by any other power than the legislature. We have only to look at our statutes, and we think they explicitly and clearly give the power to the surveyors, which was exercised by the defendant in the case before us. But it is said, if such be the construction of the statute, the legisla- ture exceeded its constitutional powers, and that the defendant there- fore cannot justifj' under the statute. This objection is founded upon the last clause in the 10th article of the Declaration of Rights, which provides ' ' that whenever the public exigencies require that the prop- erty of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor." There has been no construction given to this provision, which can extend the benefit of it to the case of one who suffers an indirect or consequential damage or expense, by means of the right use of prop- erty already' belonging to the public. It has ever been confined, in judicial application, to the case of properly actually taken and appro- priated by the government. Thus, if by virtue of any legislative Act the land of any citizen should be occupied by the public for the erec- tion of a fort or any public edifice upon it, without any means provided to indemnify the owner of the property, the title of the owner could not be divested thereb}', and he might maintain his action for possession, or of trespass, against those who are instrumental in the act ; because such a statute would be directly contrary to the above cited provision ; and as no action can be maintained against the public for damages, the only way to secure the party in his constitutional rights would be to declare void the pubUc appropriation. It is upon this principle that the legislature have, in the general law respecting highways, and in their numerous Acts authorizing the making of turnpikes, bridges, canals, etc., provided that the party, whose property is taken to carry into effect these purposes, shall be indemnified and have secured to him an eventual trial by jury on the question of damage, if no com- promise shall be made by the several parties. But this course has been confined to the direct loss of property sustained by the indi- vidual, and such expenses as are necessarily incident to the very act of taking it. ,CHAP. VI.] CALLENDER.V. MARSH. 1051 The streets On which the plaintiff's house stands had become public property b^- the act of laying them out conformably to law, and the value of the land taken must have been either paid for, or given to the public, at the time, or the street could not have been legally established. Being legally established, although the right or title in the soil remained iu him from whom the use was taken, yet the public acquired the right, not only to pass over the surface in the state it was in when first made a street, but the right also to repair and amend the street, and for this purpose, to dig down and remove the soil suflSciently to make the pas- sage safe and convenient. Those who purchase house-lots bordering upon streets are supposed to calculate the chance of such elevations and reductions as the increasing population of a city may require, in order to render the passage to and from the several parts of it safe and convenient, and as their purchase is always voluntary, they may indem- nify themselves in the price of the lot which they buy, or take the chance of future improvements, as they shall see fit. The standing laws of the land giving to surveyors the power to make these improve- ments, every one who purchases a lot upon the summit, or on the decline of a hill, is presumed to foresee the changes which public necessity or convenience may require, and may avoid or provide against a loss. That this has been the practical construction of our statute we can entertain no doubt ; for many instances must have occurred within our principal towns, of streets raised or reduced in such manner as to occasion expense to borderers, and no claim of damages has ever been heard of; and in the country towns it is not unusual to level roads, so as to oblige the owners of fields to rebuild their fences or stone-walls, and no complaint has been made. There are cases, without doubt, where an individual may suflTer by the exercise of this power, and thus be made involuntarily to contri- bute much more than his proportion to the public convenience ; but such cases seem not to be provided for, and must be left to that sense of justice which every community is supposed to be governed by. A fort may be erected on public ground so near to a man's dwelling- bouse as materially to reduce its rent and value ; the public would not be bound to indemnify the suffering party, for when he built so near to unoccupied ground, which the public had a right to occupy for any pur- pose its exigencies might require, he should have foreseen the possible purpose to which it might be applied, and should have guarded against a future loss, by abstaining from building there. So the location of school-houses upon public land may materially diminish the value of an adjoining or opposite dwelling-house, on account of the crowd and noise which they usually occasion ; but it cannot be imagined that the public are obliged to consult the convenience of the individual so far as to abstain from erecting the school-house, or to pay the owner of the dwelUng-house for its diminished value. These are cases of dam- num sine injuria, and though proper for the favorable interposition 1052 CALLENDEK V. MARSH. [OHAP. VI. of the community for whose betaefit the individual suffers, they do not give a right to demand indemnity, by virtue of the above cited article in the Declaration of Rights. - The case of highways or public streets- is analogous- ; when rightfully laid out, they are to be considered as purchased by the public of him who owned the soil, and by the purchase the right is aicquired of doing everything with the soil over which the passage gbes^ which may render it safe and convenient ; and he who sells may claim damages, not only ou account of the value of the knd taken, but fdr the diminution of the value of the adjoining lots, calculating upao the future probable reduc- tion or elevation of a street or road ; -and all this is a proper subject for the inquiry of those who are authorized to laj' out, or of a jury, if the parties should demand one. And he who purchases ■ lots so situ- ated, for the -purpose- of building upon them, is bound to consider the contingencies which may belong to them. Cases apparently hard will occur ; the present is such a one. The plaintiff's house has been standing twenty years, and he had reasonto expect, that in any contemplated improvement in the streets his lia- bility to expense would have been attended to by the city authorities, who, had they forbidden the survej-or tO' proceed, even if they had no legal right to restrain him, would have exposed him to an opinion of the jury that his proeeediilgs- were unnecessary and wanton, and so subjected him to damages ; but there being no such interposition, on the contrary, the other surveyors having concurred in the act, the committee of the "board of aldermen knoyying and approving it, it is impossible for us to find the surveyor guilty of a wrong; it not being denied that the acts done have rendered the streets more safe and con- venient than they were before. It may be a case very suitable for the consideration of the citj' authorities, whether according to the practice in like cases of improvements designed- for the general good neces- sarily creating expense to individuals, some fair indemnity -ought not to be allowed ; but of this they are the judges. If it is not now within the auttiority of the citj' officers, it is certainly worth}- eonsiderationj whether an- application to the legislature ought not to be made, to ■authorize thfem to indemnify ■ those citizens who may, in the necessary exercise of powers used for public improvement or convenience, be made indirectly to contribute an undue proportion for those purposes ; and there seems to be no good reason why others, whose property -is enhanced in value at their neighbor's expense, should not be held to furnish part of the indemnity. If the reducing or raising of streets which have been laid out for a definite number of years, and on which houses have been erected, should be made a matter of adjudication, like that of altering, widening, or turning a street, subject to the same provision for damages, the mischief would be cured ; for although, theo- retically, all this maybe considered as determined- when the street- is originally laid out, yet practicallj' there- may be cases where this just provision has been overlooked. CHAP. VI.] CALLENDER V. MAESH. 1053 We do not find in any of the cases cited, or in any authorities pre- sented to our consideration, anything which impugns the opinion we have adopted. The passages from Dalton only show that the law in respect to highways and the duty and power of surveyors is nearly the same in England as with us. Without doubt our statutes were framed with reference to the common law and statutes of England. When- ever a new road or way is to be laid out, or an existing one enlarged or widened, provision is made for indemnity. The inquiry of damages on a writ of ad quod damnum, or hy jury summoned by the quarter sessions, is applicable only to such cases. So by our statutes the com- pensation is given, when a road is laid out, or turned, or altered, or discontinued, but in no other case ; and this compensation is for the lan(^ taken, or for the immediate expense consequent upon the act. Levelling a road is not anywhere found to be considered an alteration of it ; nor do we find that the injury' it may produce has been compen- sated, unless it be in the case of Leader v. Moxon, 3 Wils. 461, which case is spoken of with disapprobation by Lord Kenyon and Mr. Justice Buller in a subsequent case in 4 D. & E. 794, and the principle of it overruled. Indeed in a report of the same case by Sir W. Blackstone, vol. 2, p. 926, it is stated that the commissioners had grossly exceeded their authority ; which seems, according to this last report, to have been the principal ground of the decision. We can perceive no difference in the principle on which this action is founded and that which was involved in the case of Thurston v. Hancock, 12 Mass. Rep. 220 ; and the decision in that case was ap- proved of and adopted by the Supreme Court of New York in the case of Panton v. JBhlland, 17 Johns. Eep. 100. ■ That it might be proper for the legislature, by some general Act, to provide that losses of the kind complained of in this suit should be compensated by the town or city within which improvements may be made for the public good, or by the owners of land which maj' be par- ticularly benefited, is not for us to deny ; but without such legislative provision we have no authority upon the subject, it being clear that by the common law, as well as by our statutes, the defendant in this action is not liable to damages.^ In no case can a person be liable to an ac- tion as for a tort, for an act which he is authorized by law to do ; and as the statute authorizes survej'ors to amend roads and streets by dig- ging them down and building them up where necessary, the legislature not being prohibited by the Constitution from enacting such a statute, we think the defendant is entitled to judgment. Verdict set aside and a nonsuit entered.^ 1 The legislature acted upon this suggestion. See St. Mass. 1825, c. 171, s. 5, Mass. Rev. St. c. 43, s. 14, and Pub. St. Mass. c. 49, ». 14. — Ed. ^ And so Woodbury v. Beverly, 153 Mass. 245; Proctor v. Stone, 158 Mass. 564 (1893), Mon. Nav. Co. v. Coons, 6 W. & S. 101, 109 (1843); Brookes v. Cedar Brook Co., 82 Me. 1 (1889) ; Bavenstein v. N. Y. L. ^. W. R. Co., 136 N. Y. 528 (1893). In City Council v. Maddox, 89 Ala. 181 (1890), the effect of a change in the State Con- stitution is stated. Compare Transp. Co. v. Chicago, 99 U. S. 635 ; g. o. infra, p. 1081 ; Randolph, Em. Dom. § 398.— Ed. 1054 O'CONNOR 1!. PITTSBURGH. [CHAP. Vi; O'CONNOE V. PITTSBURGH. Supreme Court op Pennstlvania. 1851. [18 Pa. 187.] Error to the District Court of Allegheny County. This was an action of trespass on the case, brought hy the Right Reverend Michael O'Connor, Roman Catholic Bishop of Pittsburgh, for the use of the Roman Catholic congregation of St. Paul's Church, Pitts- burgh V. The Mayor, Aldermen, and Citizens of Pittsburgh. The action was brought to November Tetm, 1849, in the court below, to recover damages from the city of Pittsburgh for injuries done to .the Cathedral, by cutting down Grant and Fifth streets, in that city. The bishop held the title of the property in trust for the Roman Catholic congregation of St. Paul's Church, Pittsburgh. ... The jury returned a verdict on two of the counts in the declaration in favor of the plaintiff for the sum of $4,000 damages ; notwithstanding which LowRiE, J., subsequently entered judgment on a reserved ques- tion for the defendants. ... Error was assigned, inter alia, to the entry of the judgment. The case was argued by MoCandless and Loomis, for the plaiatiff in error. Kuhn, for the citj'. The opinion of the court, filed November 24, 1851, was delivered by Gibson, C. J. "We have had this cause re-argued in order to dis- cover, if possible, some way to relieve the plaintiff consistently with law ; but I grieve to say we have discovered none. To the Common^ wealth here, as to the king in England, belongs the franchise of every highway as a trustee for the public ; and streets regulated and repaired by the authority of a municipal corporation are as much highways as are rivers, railroads,, canals, or public roads laid out bj' the authority of the quarter sessions. In England a public road is called the king's highway ; and though it is not usually called the Commonwealth's highway here, it is so in contemplation of law, for it exists only by force of the Commonwealth's authority. Every railroad, canal, turn- pike, or bridge company has its franchise by grant from the State, and consequently with its original qualities and immunities adhering to it. Every highway, toll or free, is licensed, constructed,, and regulated by the immediate or delegated action of the sovereign power ; and in everj' Commonwealth the people in the aggregate constitute the sov- ereign. But it is the prerogative of a sovereign to be exempt from coercion by action ; for jurisdiction implies superiority, and a sovereign can have no superior. At the declaration of American independence, prerogatives which did not concern the person, state, and dignity of the king, but such as had been held by him in trust for his subjects, were assumed by the people here and exercised immediately by them- selves ; among the rest, unwisely I think, the prerogative of refusing CHAP. YL] O'CONNOR V, PITTSBURGH. 1055 to do justice on compulsion. That a suit cannot be maintained against the State without its consent, is shown by the statute which enabled Pennsj'lvania claimants to sue the State for the value of the lands ceded to Connecticut claimants within the seventeen townships in Luzerne County. But this prerogative would be unavailing if it could not protect the agents whom the Commonwealth has necessarily to employ. It was applied to the protection of a private coiporation in the Monongahela Navigation v. Goons, and Henry v. The Allegheny Bridge ; in which it was held that a chartered company to improve the navigation of a pub- lic highwaj', or to build a bridge, is not answerable for consequential damages ; and it was applied to the protection of a municipal corpora- tion in Green v. The Borough of Reading, The Mayor v. Randolph, and the Philadelphia and Trenton Railroad ; to which may be added every decision on the subject in our sister States, except the decisions in Ohio, which, however founded in natural justice, are not founded in the law which prevails elsewhere. Yet it must be admitted that, while it is inequitable to injure the property of an individual for the benefit of the many, it would be im- possible for a corporation to bear the pressure of successive common- law actions for the continuance of a nuisance, each verdict being more severe than the preceding one. The modiflcation of the remedy would be for the legislature, which can turn compensation for a permanent detriment into the price of a prospective license ; but to attain com- plete justice, every damage to private property ought to be compen- sated by the State or corporation that occasioned it, and a general statutory remedy ought to be provided to assess the value. The con- stitutional provision for the case of private property taken for public use, extends not to the case of property injured or destroyed; but it follows not that the omission may not be supplied by ordinarj- legisla- tion. No property was taken in this instance ; but the cutting down of the street consequent on the reduction of its grade left the building useless, and the ground on which it stood worth no more than the expense of sinking the surface of it to the common level. The loss to the congregation is a total one, while the gain to holders of property in the neighborhood is immense. The legislature that incorporated the city never dreamt that it was laying the foundation of such injus- tice ; but, as the charter stands, it is unavoidable. Judgment affirmed} 1 In O'Brien v. Philadelphia, 150 Pa. 589 (1892), in a like case, the court, Sterkett, J., said ; " If any regard is to be liad for the constitutional mandate [Const. 1874, Art. xvi. s. 8] that 'municipal and other corporations . . . shall make just com- pensation for property taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements,' we are at a loss to see how the learned judge could do otherwise than decide the reserved question as he did. Nobody con. versant with the history of the constitutional provision above quoted can entertain any doubt that it was intended to provide, inter alia, for the class of cases of which O'Con- nor V. Pittsburgh, 18 Pa. 187, is a conspicuous example. It has uniformly been so re- garded from the date of its adoption until the present time. ... In Ogden v. Phila- 1056 PEART ET AL. «. MEEKER. [CHAP. VI. In Peart et al. v. Meeker \i5 La. Ann.), 12 Southern Rep. 490 (189S), in reversing a judgment for the plaintiff, who complained of the acts of the defendant, Fresid&nt of a Levee District, in locating and con- structing a line of levee on the Red River, the court (Fenner, J.) said : " The quantum of damages is admitted between the parties, and the delphia, 143 Pa. 430, the claim was for damages caused by grading lifortli Street. Aiter stating that the undisputed facts were ' that the first grade . . . was established on the city plan in 1871, but nothing was done on the ground until 1887,' our Brother Mitchell says. 'For the establishment of the grade of 1871 there was no right of action. O'Connor V.Pittsburgh, 18 Pa. 187; Philadelphia v. Wright, 100 Ta,. 23i. Therpfore the Statute of Limitation could not begin to run from that date. But the Consti- tution of 1874, Article xvi.: s. 8, gave a right to owners to have compensation for prop- erty injured, as well as for property taken by municipal and other corporation^ in the construction or enlargement of their works.' " In Smith v. Washington, 20 How. 13,5, 148 (1857), the defendant city was sued in an action on the case to recover damages for an alteration of the grade of the street on which the plaintiff had his dwelling-house In sustaining a judgment of the Circuit Court of the United States for the District of Columbia in favor of the defendant, the court (Grier, J.) said: " Having performed this trust, confided to them by the law, according to the best of their judgment and discretion, without exceeding the jurisdic- tion and authority vested in them as agents of the public, and on land dedicated to public use for the purposes of a highway, they have not acted ' unlawfully or wrong- fully,' as charged in the declaration. They have not trespassed on the plaintiff's prop- erty, nor erected i>, nuisance injurious to it, and are, consequently, not liable to damages where they have committed no wrong, but have fulfilled a duty imposed on them by law as agents of the public. The plaintiff may have suffered inconvenience and been put to expense in consequence of such action ; yet, as the act of defendants is not ' unlawful or wrongful,' they are not bound to make any recompense. It is what the law styles damnum absque injuria. Private interests must yield to public accommodation ; one cannot build his house on the top of a hill in the midst of a city, and require the grade of the street to conform to his convenience at the expense of that of the public. The law on this subject is well settled, both in England and this country. The cases are too numerous for quotation; a reference to one or two more immediately applicable to the questions arising in this case will be sufficient. " In Callender v. Marsh, \ Pick. 417, the defendant, as surveyor of the highways, was charged with digging down a street in Boston, so as to lay bare the foundations of plaintiff's house, and endanger its falling. The authority under which he acted was given by' a statute which required ' that all highvfays, townways, etc., should be kept in repair and amended from time to time, that the same may be safe and convenient for travellers.' ' This very general and exclusive authority,' say the court, ' would seem to include everything which may be needed towards making the ways perfect and com- plete, either by levelling them where they are uneven and difficult of ascent, or raising them where they should be sunken and miry.' It was held, also, that the law does not give a right to compensation for an indirect or consequential damage or expense, resulting from a right use of property belonging to the public. " In Green v. The Borough of Reading, 9 Watts, 282, the defendants, by virtue of their authority to ' improve and repair,' graded the street in front of plaintiff's house five feet higher than it had been before, and it was held that the corporation was not liable to an action for any consequential, injury to plaintiff's property by reason of such improvement or change of grad« in the public street. "In the case of O'Connor v. Pittsburgh, 18 Penn. Kep. 187, a church had been built according to the direction of the dty regulator, and by a grade established in 1829. Afterwards, in pursuance of an ordinance, the grade of the street was reduced seven- teen feet ; the church had to be taken down and rebuilt on a lower foundation, at a damage of $4,000. The authority given to the city was ' to improve, repair, and keep CHAP. VI.] PEAET ET AL. V. MEEKER. 1057 sole question before us is the legal liability of defendant. Whatever may be the law elsewhere, we consider the law of Louisiana too well settled to admit of further dispute to the following effect : That under article 665 of our Civil Code riparian property' on navigable rivers in this State is subject to a servitude or easement imposed by law for the public or common utility, authorizing the appropriation by the govern- ment, under proper laws, of the space required for the making and repairing of levees, roads, and other public works; that the State is charged with the administration of this public servitude ; that in locat- ing and building levees she does not expropriate the property of the citizen, but lawfully appropriates it to a use to which it is subject under the title itself; that in so doing she acts, not under the power of eminent domain, "but in the exercise of the police power; that laws, constitutional or statutory, concerning the expropriation of private property for public use, and requiring adequate compensation therefor, have no application to property legitimately required for levee purposes, and that private injury resulting from the legitimate exercise of this legal right is damnum absque injuria, to which the individual', must submit as a sacrifice to the public safetj' and welfare. Ruch v. Gity of New Orleans, 43 La. Ann. 275, 9 South. Rep. 473 ; Bass v. State, 34 La. Ann. 494 ; State v. Maginnis, 26 La. Ann. 558 ; Cash v. Whit- worth, 13 La. Ann. 401 ; Dubose v. Commissioners, 11 La^. Ann. 165 ; Police Jury v. Bozman, 11 La. Ann. 94; Zenor v. Concordia, 7 La. Ann. 150. It is useless to quote from these decisions.. They are familiar to the profession, and their tenor, as above stated, is unam- biguous, harmonious, and emphatic. They were rejiufered under the regime of constitutions which prohibited the taking of private property for public purposes without compensation; and, however broad and emphatic may be the same prohibition in our existing constitution, it had not either the intention or effect to repeal Article 665 of the Civil Code, or to bring within its grasp the lawful appropriation of property for levee purposes. On the contrary, the Constitution itself charges the General Assembly with the duty of maintaining a levee system, authorizes the creation of levee districts under the administration of com- missioners to be appointed or elected, and grants specified powers of tax- ation for this purpose. Const, arts. 213-216. In the execution of these powers and duties, the Red River, Atchafalaya & Bayou Bceuf Levee District was created by Act 79 of 1890, amended and re-enacted by Act 46 of 1892, and the defendant commissioners were appointed. . . . The Constitution itself (Article 214), in authorizing the appointment of commissioners for levee districts, expressly declares that they ' shall in in order the streets,' etc. The court say, ' We had this case re-argued in order to dis- cover, if possible, some way to relieve the plaintiff consistently with law, but grieve to say we can find none. The law is settled, not only in Pennsylvania,' but by every decision in the sister States, except one.' " "We are of opinion, therefore, that the instructions given by the court below on these points were correct, and affirm their judgment." — Ed. VOL. I. — 67 1058 PEAET ET AL. V. MEEKER. [CHAP. TI. the method and manner to be provided by law, have supervision of the erection, repair, and maintenance of the levees in said districts.' These commissioners were therefore bound, under an express constitu- tional mandate, to exercise their functions exclusively ' in the method and manner ' prescribed by law. The law confined their powers to the construction, maintenance, and repair of such levees only as, ' in the opinion of the Board of State Engineers, will pi'otect said levee district from overflow,' and further devolves upon the State Engineers the exclusive authority and duty ' to survey and locate, repair or remove and change all levees,' and further charges said engineers with the full ' responsibility of all such location.' " The evidence in the case fully establishes that the levee complained of is built on the line surveyed, located, approved bj-'the State Engi- neers. . . . What was the board to do? The levee was an impor- tant one, involving the protection of an extensive region from over- flow. Under the mandates of law above referred to its duty was clear and manifest to build the levee on the line located by the State Engineers, who are charged with the authoritj^, dut}-, and responsibility of making such location. It is difficult to understand how this corpora- tion can incur liability for performing the plain duty imposed on it by law, or how, in any event, the corporate funds could be used in satis- faction of such liability. It is clear that the commissioners, even if they desired to do so, could not, under section 11, devote the corpo- rate funds to the satisfaction of plaintiff's claim, without violating the law, and the judicial power could not be invoked to compel them to vio- late the law. To hold otherwise would be to authorize such officers to create unwarranted debts against this corporation, which is a mere functionary of the State, and for their payment to divert public funds from the purposes to which thej* are lawfullj- and exclusivelj' dedicated. Whatever be the rights of plaintiff, and whatever be her remedies for their vindication, the latter cannot possibly take the shape of an action of damages against this corporation. The law under which the officers of this corporation and the State Engineers have acted is a valid law, and nothing done in the proper execution of its mandates can give rise to any action of damages. If such an action exists, it must arise from acts of these officers in violation of the authoritj- conferred upon them. This brings the case within the dilemma propounded in Bass' Case, where we said : ' The dilemma seems irresistible : Either the Board of Engineers, the public agents of the State, have acted witliin the scope of their mandate and authority, or they have not. If they have, then, as thej' have carried out a valid law, neither they nor the State can be held responsible. If they have acted beyond that scope, their principal cannot be made responsible for their unauthorized act, and thej- alone are chargeable.' Bass v. State, 34 La. Ann. 494. For the reasons heretofore indicated we think the corporate liability of this levee district is governed by the same rules which apply to the State herself. If there is any liability for damages it rests on the oflScers individually CHAP. VI.] PEART ET AL. V. MEEKER. 1059 who have acted in excess of their authoritj', and under the law in this case, which we have heretofore quoted, it seems quite clear that, as between these commissioners and the State Engineers, the latter alone would be charged with whatever responsibility' might result from the improper location of the levees. We need not advert to the strong shield of protection which the law extends over public officers charged with discretionar3' duties, and which exempts them from liability for honest errors, and except in clear eases of oppression and injustice ; and it is onlj- proper to ssiy that nothing in this record indicates anj- but honest motives and conscientious action on the part of all the public officers concerned. It is undoubtedly the duty of the public officers charged by the State with the execution of its police power, to make no greater sacrifice of private rights than the public welfare demands. In several cases this court has said that power so conferred is not arbitrary, and that the citizen is not without remedy to subject it to judicial con- trol in proper cases. We are not called upon in this case to consider this question further than to say that the present action of damages against this levee district is not an appropriate remedy, and cannot be sustained. It is therefore decreed that the judgment appealed from be reversed, and that plaintiff's demand be rejected, at her costs in both courts." ^ 1 The exact scope and limitations of property rights may, of course, differ mate- rially in different States. Compare the doctrine of the Appropriation of Waters in the Pacific and adjacent States, by which a permanent right to running water, even as against riparian owners, is acquired by actual prior appropriation to mining or any other useful purposes. See Black's edition of Pomeroy's Water Rights, In Drake v. Earhart, 2 Idaho, 716, 720 (1890), Beatty, C. J., for the court, said: " The important question, for the settlement of which this appeal was chiefly brought, is what, if any, rights the appellant has to any of that water as a riparian proprietor. His claim is not based upon prior or any appropriation under our territorial laws, but upon the fact that the stream in question flows by its natural channel through his lands ; hence, that he is entitled to the use thereof allowed by the common law. This doctrine of riparian proprietorship in water as against prior appropriation has been very often discussed, and nearly always decided the same way by almost every appel- late court between Mexico and the British possessions, and from the shores of the Pacific to the eastern slope of the Rocky mountains, as well as by the Supreme Court of the United States. But for the fact that it has elsewhere repeatedly appeared in the same court, it would seem surprising that it should now be seeking another solution in this. While there are questions growing out of the water laws and rights not fully adjudi- cated, this phantom of riparian rights, based upon facts like those in this case, has been so often decided adversely to such claim, and in favor of the prior appropriation, that the maxim, ' first in time, first in right,' should be considered the settled law here. Whether or not it is a beneficent rule, it is the lineal descendant of the law of necessity. When, from among the most energetic and enterprising classes of the east, that enormous tide of emigration poured into the west, this was found an arid land, which could be utilized as an agricultural country, or made valuable for its gold, only by the use of its streams of water. The new inhabitants were without law, but they quickly recognized that each man should not be a law unto himself. Accustomed, as they had been, to obedience to the laws they had helped make, as the settlements increased to such numbers as justified organization, they established their local customs and rules for their government in the use of water and land. They found a new condition of things. The use of water to which they had been accustomed, and the laws concern- 1060 PUMPELLY V. GREEN BAY COMPANY. ' [CHAP. TL PUMPELLY V. GKEEN BAY COMPANY. Supreme Court of the United States. 1871. [13 Wall. 166.] Error to the Circuit Court of the United States for the District of Wisconsin ; the case being thus : Tlie Constitution of Wisconsin ordains that " the property of no per- son shall b_e taken for public use without just compensation therefor." With this provision in force as fundamental law, one Pumpelly, in September, 1867, brought trespass on the case against the Grreen Baj- and Mississippi Canal Co. for overflowing 640 acres of his land b\' means of a dam erected across Fox River, the northern outlet of Lake Winnebago, by which, as the declaration averred, the waters of the lake were raised so high as to forcibly and with violence overflow all his said land, from the time of the completion of the dam in 1861 to the commencement of this suit ; the water coming with such a vio- lence, the declaration averred, as to tear up his trees and grass by the roots, and wash them, with his haj' bj- tons, awaj', to choke up his drains and fill up his ditches, to saturate some of his lands with water, and to iug it, had no application here. The demand for water they found greater than the supply, as is the unfortunate fact still all over this arid region. Instead of attempting to divide it among all, thus making it unprofitable to any, or instead of applying the common-law riparian doctrine, to which they had been accustomed, they disregarded the traditions of the past, and established as the only rule suitable to their situation that of prior appropriation. This did not mean that the first appropriator could take all he pleased, but what he actually needed, and could properly use without waste. Thus was established the local custom, which pervaded the entire west, and became the basis of the laws we have to-day on that subject. "Very soon these customs attracted the attention of the legislatures, where they were approved and adopted, and next we find them undergoing the crucial test of judicial investigation. As far back as 1855, the Supreme Court of California, in Irwin v. Phillips, 5 Cal. 145, and in Tartar v. Mining Co., Id. 397, distinctly held that the prior appropriator of water should hold it against the riparian claim of the owner of land through which it flowed, and, also, that in all branches of industry the prior appropriator of land, water, and easements would be protected. Not only had such become the law by custom, by the legislative will, and the decisions of the courts, without dissent, but the general gov- ernment, for many years, without protest, acquiesced iu such occupation and use of its land.s and waters by its citizens, while valuable properties and industries were building upon this principle. To put the question beyond uncertainty, to approve and adopt what already existed as the common law of the west, the Congress, by its Act of July 26, 1 866, § 9, provided ' that whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested righta shall be maintained and protected in the same.' It will be observed that the act is based upon the existence of local customs, laws, and decisions of courts. It is not necessary that all these conditions shall exist for the protection of the right ; but, as held in Basey V. Gallagher, 20 Wall. 684, the existence of either condition is sufficient," Compare Stowell v. Johnson et ah, 7 Utah 215, Strickler v. Col. Springs, 25 Pac. Rep, (Col.) 313. — Ed. CHAP. VI.J PUMPELLY V. GKEEN BAY COMPANY. 1061 dirty and injure other parts by bringing and leaving on tliem deposits of sand, and otlierwise greatly injuringv him. The eanal company pleaded six pleas, of which the second was the most important, but of which the fourth and sixth may also be mentioned. This second plea was divisible, apparentlj^ into two parts. The first part set up (quoting it entire) a statute of Wisconsin Ter- ritory, approved March 10th, 1848, bj' which one Curtis Eeed and his associates were authorized to construct a dam across Fox River, the northern outlet of Winnebago Lake, to enable them to use the waters of the river for h^'draulic purposes. . . . A general demurrer to these three pleas being overruled by the court, the plaintiff brought the case here. Messrs. £. J. Stevens and S. L. PdLmer, in support of the ruling below. Messrs. J. M. Gillet and D. Taylor, contra. Me. Justice Miller delivered the opinion of the court. . . . As we are of opinion that the statute did not authorize the erection of a dam which would raise the water of the lake above the ordinary level, and as the plea does not deny that the dam of the defendant did so raise the water of the lalte, we must hold that, so far as the plea relies on this statute as a defence, it is fatally defective. But this same plea further alleges that the legislature of Wisconsin, after it became? a State, projected a system of improving the navigation of the Fox and Wisconsin rivers, which adopted the dam of Eeid and Doty, then in process of construction, as part of that system ; and that, under that Act, a board of public works was established, which made such arrangements with Reid and Doty that they continued and com- pleted the dam ; and that by subsequent legislation, changing the organization under which the work was carried on, the defendants finally became the owners of the dam, with such powers concerning the improvement of the navigation of the river as the legislature could con- fer in that regard. But it does not appear that any statute made pro- vision for compensation to the plaintiff, or those similarly injured, for damages to their lands. So tliat the plea, as thus considered, presents substantially the defence that the State of Wisconsin, having, in the progress of its system of improving the navigation of the Fox River, authorized the erection of the dam as it now stands, without anj- pro- vision for compensating the plaintiff for the injury which it does him, the defendant asserts the right, under legislative authority, to build and continue the dam without legal responsibility for those injuries. And counsel for the defendant, with becoming candor, argue that the damages of which the plaintiff complains are such as the State had a right to inflict in improving the- navigation of the Fox River, without making any compensation for them. This requires a construction of the Constitution of Wisconsin ; for though the Constitution of the United States provides that private property shall not be taken for public use without just compensation, it 1062 PUMPELLY V. GEEEN BAY COMPANY. [CHAP. VI. is well settled that this is a limitation on the power of the Federal gov- ernment, and not on the States. The Constitution of Wisconsin, how- ever, has a provision almost identical in language, viz., that " the property of no person shall be taken for public use without just compen- sation therefor." ^ Indeed this limitation on the exercise of the right of eminent domain is so essentially a part of American constitutional law that it is believed that no State is now without it, and the only question that we are to consider is whether the injury to plaintiff's property, as set forth in his declaration, is within its protection. The declaration states that, by reasoii»of the dam, the water of the lake was so raised as to cause it to overflow all his land, and that the over- flow remained continuously from the completion of the dam, in the year 1861, to the commencement of the suit in the year 1867, and the nature of the injuries set out in the declaration are such as show that it worked an almost complete destruction of the value of the land. The argument of the defendant is that there is no taking of the land within the meaning of the constitutional provision, and that the damage is a consequential result of such use of a navigable stream as the gov- ernment had a right to for the improvement of its navigation. . It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, alwaj's undei'stood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legisla- tion to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely', can inflict irreparable and permanent injury to anj' extent, can, in eflTect, subject it to total de- struction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construc- tion would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authorit}' for invasion of private right under the pretext of the public good, which had no war- rant in the laws or practices of our ancestors. . . . [Here follows a statement of Sinnickson v. Johnson, 2 Harrison, 129 ; and Gardner v. Newburgh, 2 Johns. Ch. 162 {ante, pp. 979 and 986, with quotations from them.] If these be correct statements of the limitations upon the exer- cise of the right of eminent domain, as the doctrine was understood before it had the benefit of constitutional sanction, by the construction now sought to be placed upon the Constitution it would become an instrument of oppression rather than protection to individual rights. But there are numerous authorities to sustain the doctrine that a ' See supra, p. 956, note. — Ed. CHAP. VI.J PUMPELLY V. GREEN BAY COMPANY. 1063 serious interruption to the common and necessary use of propert}' may be, in tlie language of Mr. Angell, in his work on water-courses, equiv- alent to the taking of it, and that under the constitutional provisions it is not necessary that the land should be absolutely taken. Angell on Water-courses, § 465 a ; Hooker, v. New Haven and Northampton The language here referred to is as follows • " That franchise, as we have said, is property. ' No part of a man's property shall be taken from him or applied to public uses, without his own consent, or that of the representative body of the people." N. H. Bill of Rights, Art. 12. This has always been understood necessarily to include, as a matter of right, and as one of the first principles of justice, the further limitation, that in case his property is taken without his consent, due compensation must be provided. 1 Black. Com. 139; 2 Johns. C. E. 166; Gardner y. Village of Newburgh, and author- ities there cited. It is not supposed here that even the consent of the representative body of the people could give authority to take the property of individual citizens for highways, bridges, ferries, and other works of internal improvement, without the assent of the owner, and without any indemnity provided by law. Such a power would be essentially tyrannical, and in contravention of other articles in the Bill of Eights." — Parkek, J., for the court, in Prop'rs of Piscataqua Bridge v. N. H. Bridge et ai, ubi supra. — Ed. * 1068 EATON t). BOSTON, CONCORD, ETC. KAILKOAD. [CHAP. VI. Petition of Mount Washington Road Co., 35 N. H. 134, pp. 141, 142 ; Sargent, J., in Eastman v. Amoskeag Manuf. Co., 44 N. H. 143, p. 160; State V. Franklin Falls Co., 49 N. H. 240, p. 251. The counsel for the defendants have not been understood to question the correctness of this interpretation of the Constitution. The vital issue then is, whether the injuries complained of amount to a taking of the plaintiflf's propertj', within the constitutional mean- ing of those terms. It might seem that to state such a question is to answer it ; but an examination of the authorities reveals a decided con- flict of- opinion: The constitutional prohibition (which exists in most, or all, of the States) has received, in some quarters, a construction which renders it of comparatively little worth-, being interpreted much as if it read : " No person shall be divested of the formal title to prop- erty without compensation, but he may without compensation be de- prived of all that makesthe title valuable." To constitute a "taking of property,?' it seems to have sometimes been held necessary that there should be "an exclusive appropriation," "a total 'assumption of pos- session," " a complete ouster," an absolute or total conversion of the entire property, "a taking of the property altogether." These views seem to us to be founded on a rnisconceptidn of the meaning of the term " property," as used in the various State constitutions. In a strict legal sense, land is not " propertj-," but the subject of property. The term " property," although in common parlance fre- quently applied to a tract of land or a chattel, in its legal signification " means only the rights of the owner in relation to it." " It denotes a right . . . over a determinate thing." " Property is the right of any person to possess, use, enjoy, and dispose of a thing." Selden, J., in Wynehamer v. The People,- 13 N. Y. 378, p. 433 ; 1 Blackstone Com. 138 ; 2 Austin on Jurisprudence, 3d ed., 817, 818. If property in land consists in certain essential rights, and a physical interference with the land substantially subverts one of those rights, such interference " takes/' joro tanto, the owner's "property." The right of indefinite user (or of using indefinitely) is an essential quality or attribute of absolute propertj-, without which absolute property can have no legal existence. " Use is the real side of property." This right of user necessarily includes the right and power of excluding others from using the land. See 2 Austin on Jurisprudence, 3d ed., 836 ; Wells, J., in Walker v. O. C. W. R. B., 103 Mass. 10, p. 14. From the very nature of these rights of user and of exclusion, it is evident that they cannot be materially abridged without, ipso facto, taking the owner's " property." If the right of indefinite user is an essential element of absolute property or complete ownership, whatever physical interfer- ence annuls this right takes " property," although the owner may still have left to him valuable rights (in the article) of a more limited and circumscribed nature. He has not the same property that he formerly had. Then, he had an unlimited right; now, he has only a limited right. His absolute ownership has been reduced to a qualified owner- CHAP. VI.] EATON V. BOSTON, CONCORD, ETQ. RAILROAD. 1069 ship. Restricting A's unlimited right of using one hundred acres of land to a limited right of using the same land, may work a far greater injury to A than to take from him the title in fee-simple to one acre, leaving him the unrestricted right of using the remaining ninety-nine acres. Nobody doubts that the latter transaction would constitute a " taking of property." Why not the former? If, on the other hand, the land itself be regarded as " property," the practical result is the same. The purpose of this constitutional prohi- bition cannot be ignored in its interpretation. The framers of the Con- stitution intended to protect rights which are worth protecting ; not mere empty titles, or barren insignia of ownership, which are of no substantial value. If the land, " in its corporeal substance and entity,'' is " propert}-," still, all that makes this property of any value is the aggregation of rights or qualities which the law annexes as incidents to the ownership of it. The constitutional prohibition must have been intended to protect all the essential elements of ownership which make " property " valuable. Among these elements is, fundamentally', the right of user, including, of course, the corresponding right of excluding others from the use. See Comstock, J., in Wynehamer v. The People, 13 N. Y. 378, p. 396. A physical interference with the land, which substantially abridges this right, takes the owner's " property" to just so great an extent as he is thereby deprived of this right. " To de- prive one of the use of his land is depriving him of his land ; " for, as Lord Coke said : " What is the land but the profits thereof ? " Suther- land, J., in People v. Kerr, 37 Barb. 357, p. 399 ; Co. Litt. 4 6. The private injury is thereby as completely effected as if the land itself were " physically taken away." The principle must be the same whether the owner is wholly deprived of the use of his land, or only partially deprived of it ; although the amount or value of the property taken in the two instances may widely diflfer. If the railroad corporation take a strip four rods wide out of a farm to build their track upon, they cannot escape paying for the strip by the plea that they have not taken the whole farm. So a partial, but substantial, restriction of the right of user may not annihilate all the owner's rights of property in the land, but it is none the leas true that a part of his property is taken. Taking a part " is as much forbidden by the Constitution as taking the whole. The difference is only one of degree ; the quantum of interest may vary, but the principle is the same." See 6 Am. Law Review, 197-198 ; Lawrence, J., in Kevins v. City of Peoria, 41 Illinois, 502, p. 511. The explicit language used in one clause of our Constitution indicates the spirit of the whole in- strument. " No part of a man's property shall be taken. ..." Con- stitution of N. H., Bill of Rights, article 12. The opposite construction would practically nullify the Constitution. If the public can take part of a man's property without compensation, they can, by successive tak- ings of the different parts, soon acquire the whole. Or, if it is held that the complete divestiture of the last scintilla of interest is a taking 1070 EATON V. BOSTON, CONCOED, ETC. KAILROAD. [CHAP. \l. of the whole for which compensation must be made, It will be easy to leave the owner an interest in the land of infinitesimal value. The injury complained of in this case is not a mere personal incon- venience or annoyance to the occupant. Two marked characteristics distinguish this injury from that described in many other cases. First, it is a physical injury to the land itself, a physical interference with the rights of property, an actual disturbance of the plaintiffs possession. Second, it would clearly be actionable if done by a private person with- out legislative authority. The damage is " consequential," in the sense of not following immediately in point of time upon the act of cutting through the ridge, but it is what Sir William Erie calls " consequen- tial damage to the actionable degree." See Brand v. H. & C. M. Co., Law Keports, 2 Queen's Bench, 223, p. 249. These occasional inunda- tions ma}' produce the same effect in preventing the plaintiff from making a beneficial use of the land as would be caused by a manual asportation of the constituent materials of the soil. Covering the land with water, or with stones, is a serious interruption of the plaintiff's right to use it in the ordinary manner. If it be said that the plaintiff still has his land, it may be answered, that the face of the land does not remain unchanged, and that the injury may result in taking away part of the soil (" and, if this may be done, the plaintiff's dwelling- house may soon follow ") ; and that, even if the soil remains, the plain- tiff may, by these occasional submergings, be deprived of the profits which would otherwise grow out of his tenure. "His dominion over it, his power of choice as to the uses to which he will devote it, are materially limited." Brinkerhoff, J., in Reeves y. Treasurer of Wood County, 8 Ohio St. 333, p. 346. The nature of the injurj- done to the plaintiff maj- also be seen by adverting to the nature of the right claimed by the defendants. The primary purpose of the defendants in cutting through the ridge was to construct their road at a lower level than would otlierwise have been practicable. But, although the cut was not made " for the purpose of conducting the water in a given course " on to the plaintiff's land, it has that result ; and the defendants persist in allowing this excavation to remain, notwithstanding the injur}- thereby visibly caused to the plain- tiff. Rather than raise the grade of their track, they insist upon keep- ing open a canal to conduct the flood-waters of the river directly on to the plaintiff's land. If it be said that the water came naturally from the southerly end of the cut on to the plaintiffs land, the answer is, that the water did not come naturally to the southerly end of the cut. It came there by reason of the defendants' having made that cut. In consequence of the cut, water collected at the southerly boundary of the ridge, north of the plaintiffs farm, which would not have been there if the ridge had remained in its normal and unbroken condition. They have " so dealt with the soil " of the ridge, that, if a flood came, instead of being held in check by the ridge, and ultimately getting away by the proper river channel without harm to the plaintiff, it flowed CHAP. VI.J EATON V. BOSTON, CONCORD, ETC. RAILROAD. 1071 through where the ridge once was on to the plaintiff's land. " Could the defendants say they were not liable because they did not cause the rain to fall," which resulted in the freshet; or because the water "came there by the attraction of gravitation?" See Bramwell, Baron, in Smith v. Fletcher, Law Reports, 7 Exchq. 305, p. 310. If the ridge still remained in its natural condition, could the defendants pump up the flood-water into a spout on the top of the ridge, and thence, by means of the spout, pour it directly on to the plaintiff's land ? If not, how can they maintain a canal through which the water by the force of gravi- tation will inevitably find its waj' to the plaintiff's land? See Ames, J., in Shipley v. Fifty Associates, 106 Mass. 194, pp. 199, 200; Chapman, C. J., in Salisbury v. Serchenroder, 106 Mass. 458, p. 460. To turn a stream of water on to the plaintiff's premises is as marked an infringement of his proprietary rights as it would be for the defend- ants to go upon the premises in person and " dig a ditch, or deposit upon them a mound of earth.'' See Lawrence, J., in Nevins v. City of Peoria, 41 Illinois, 502, p. 510; Dixon, C. J., in Pettigrew v. Vil- lage of Evansville, 25 Wisconsin, 223, pp. 231, 236. The defendants may, perhaps, regret that they cannot maintain their track at its pres- ent level without thereby occasionally pouring flood-water on to the land of the plaintiff. Indeed, the passage of this water through the cut may cause some injury to the defendants' road bed. But the advan- tages of maintaining the track at the present grade outweigh, in the defendants' estimation, the risk of injury by water to themselves and to the plaintiff. In asserting the right to. maintain the present condi- tion of things as to the cut, the defendants necessarily assert the right to produce all the results which naturally follow from the existence of the cut. In effect, they thus assert a right to discharge water on to the plaintiff's land. Such a right is an easement. A right of " occasional flooding" is just as much an easement as a right of "permanent submerging ; " it belongs to the class of easements which " are by their nature intermittent — that is, usable or used onl3'at times." See God- dard's Law of Easements, 125. If the defendants had erected a dam on their own land across the river below the plaintiff's meadow, and by means of flash-boards thereon had occasionally caused the water to flow back and overflow the plaintiff's meadow so long and under such cir- cumstances as to give them a prescriptive right to continue such flow- age, the right thus acquired would unquestionably be an " easement." The right acquired in that case does not differ in its nature from the right now claimed. In the former instance, the defendants flow the pl^iintiff's land by erecting an unnatural barrier below his premises. In the present instance, they flow his land by removing a natural barrier on the land above his premises. In both instances, they flow his land by making "a non-natural use " of their own land. In both instances, they do an act upon their own land, the effect of which is to restrict or burden the plaintiff's ownership of his land (see Lecovfield v. Lonsdale, Law Reports, 5 Com. Pleas, 657, p. 696) ; and the weight of that burden 1072 EATON V. BOSTON, CONCORD, ETC. KAILEOAD. [CHAP. VI. is not necessarily dependent upon the source of the water, whether from below or above. See Bell, J., in Tillotson v. Smith, 32 N. H. 90, pp. 95-96. In both instances they turn water upon the plaintiffs land " which does not flow naturally in that place." If the right acquired in the former instance is an easement, equally so must be the right claimed in the latter. If, then, the claim set up by the defendants in this case is well founded, an easement is already vested in them. An easement- is property) and is within the protection of the constitutional prohibi- tion now under consideration. If the defendants have acquired this easement, it cannot be talsen from them, even for the public use, without compensation. But the riglit acquired bj' the defendants is subtracted from the plaintiff's ownership of the land. Whatever interest the defendants have acquired in this respect the plaintiff has lost. If what they have gained is property, then what he has lost is property. If the easement, when once acquired, cannot be taken from the defendants without compensation, can the defendants take it from the plaintiff in the first instance without compensation ? Sec Brinkerhoff, 8 . , ubi sup. ; Selden, J., in Williams v. iV; T. Central R. B., 16 N. Y. 97, p. 109. An easement is all that the railroad corporation acquire when they locate and construct their track directly over a man's land. The fee remains in the original owner. Blake v. Rich, 34 N. H. 282. Yet nobody doubts that such location and construction is a "taking of property," for which compensation must be made. See Redfield, J., in Hatch V. Vt. Central R. R., 25 Vt. 49, p. 66. What difference does it make in principle whether the plaintiff's land is encumbered with stones, or with iron rails? whether the defendants run a locomotive over it, or flood it with the waters of Baker's Eiver? See Wilcox, J., in March v. P. & C. R. R., 19 N. H. 372, p. 380 ; Walworth, Chan., in Canal Com'rs & Canal Appraisers v. The People, 6 Wendell, 423, p. 452. If it should be held that the legislature had conferred a valid author- itj' upon the defendants to make this cut, if necessary to the construc- tion of the railroad, or if made with care and skill, the question of necessity or of care would become material, and might have to be decided by a jury. See Johnson v. Atlantic & St. L. R. Co., 35 N. H. 569 ; Estahrooics v. P. & S. R. Co., 12 Cush. 224 ; Mellenv. Western R. R., 4 Gray, 301; Curtis v. Eastern R. R.,\\. Allen, 55 ; same case, 98 Mass. 428. But in the view now taken, these questions are immaterial. The defendants are not held liable, as in some other cases, because their acts were unnecessarj', or unskilful, and hence not within the contemplation of the charter. They are held liable, irrespective of any negligence on their part, on the ground that it was bej'ond the power of the legislature to authorize the infliction of this injury on the plaintiff, without making provision for his compensation. We think that here has been a taking of the plaintiff's property ; that, as the statutes under which the defendants acted make no pro- vision for the plaintiff's compensation, they afford no justification ; that the defendants are liable in this action as wrong-doers ; and that the CHAP. VI.J EATON V. BOSTON, CONCORD, ETC. RAILROAD. 1073 ruling of the court was correct. These conclusions, which are sup- ported by authorities to which reference will soon be made, seem to us so clear, that, if there were no adverse authorities, it would be un- necessary to prolong the discussion of this case. But, as there are respectable authorities which are in direct conflict with these conclu- sions, it has been thought desirable to examine some arguments which have, at various times, been advanced in support of the opposite view. In some instances, as soon as it has been made to appear that there is a legislative enactment purporting to authorize the doing of the act complained of, the complaint has been at once summarily disposed of by the curt statement " that an act authorized by law cannot be a tort." This is begging the question. It assumes the constitutionality of the statute. If the enactment is opposed to the Constitution, it is " in fact no law at all." " The term unconstitutional law, in American jurisprudence, is a misnomer, and implies a contradiction." "The will of the legislature is only law when it is in harmon}' with, or at least is not opposed to, that controlling instrument which governs the legisla- tive body equally with the private citizen." Cooley's Constitutional Limitations, 1st ed., pp. 3, 4. The error in question originates in a " fallacy of reference." It arises from following English authorities, without adverting to thcvimmense difference between the practically omnipotent powers of the British Parliament and the comparatively limited powers of our State legislatures, acting under the restrictions of written constitutions. Parliament is the supreme power of the realm. It is at once a legislature and a constitutional convention. 1 De TocqueviUe's Democracy in America, Reeves's Translation, 2d Am. ed., 80. Parliament can " do evej-ything that is not naturally impos- sible;" and what it does "no authority on earth can undo." 1 Black- stone's Com. 161 ; 4 Coke's Inst. 36. A State legislature, on the other hand, " is powerless when it attempts to pass the limits prescribed by the Constitution." See Cooley's Const. Lira., 1st ed., 45, 46. In England, whenever it appears that the act complained of was author- ized by a parliamentary statute, the coprt are perfectly justified in dis- missing the complaint, on the ground that the act was " authorized by law." In this country, when it appears that the legislature have gone through the form of -enacting a statute purporting to authorize the act complained of, the further inquiry remains, whether the legislature had the constitutional power to pass such a statute. If they had not, then their enactment is not " law," and can afford no justification. The error of blindly following English authorities, as to the justifica- tion afforded by statutory enactments, has repeatedly been exposed. Swan, J., in Crawford v. The Village of Delaware, 7 Ohio St. 459, pp. 466, 477 ; Maison, Senator, in Bloodgood v. Mohawk & Hudson Railroad Co., 18 Wendell, 9, pp. 29-31 ; Archer, C. J., in Barron v. Mayor of Baltimore, 2 Araer. Jurist, 210 ; Smith, J., in Ooodall v. City of Mihuauhee, 5 Wisconsin, 32, pp. 38, 45 ; Cooley's Const. Lim., 1st ed., 85 ; and see, also, Angell on Watercourses, 6th ed., sec. 461 ; VOL. I. — 68 1074 EATON V. BOSTON, CONCOED, ETC. EAILEOAD. [CHAP. VI. Sutherland, J., in People v. Kerr, 37 Barb. 357, pp. 412, 415 ; 1 Redf. on Railways, 4th ed., 232.' The error in the argument just commented upon, ma}-, perhaps, be summed up in the statement, that it confounds the legislature with the constitutional convention. Closely allied to this is the error of con- founding the legislature with the Supreme Court. It seems to have been contended that the legislature is competent to determine whether a franchise will be injurious to other interests, and that it is to be pre- sumed, after a legislative grant, " that there is no just claim for result- ing damages which has not been provided for." See American Law Magazine, vol. 1, No. 1, April, 1843, 58-60. This assumes both the omuiscieuce and omnipotence of the legislature. If the legislators themselves are to finally decide whether thej' have transcended their constitutional powers, " then," in the words of Daniel Webster, "the Constitution ceases to be a legal and becomes onlj- a moral restraint upon the legislature." It " is admonitory or advisory- onlj-, not legal!}' binding; . . ." Speech on the Independence of the Judiciary, quoted in Cooley's Const. Lim., 1st ed. 46, note 1. It is now universally conceded to be the province and dut}' of the judiciary to pass upon the constitutionalit}' of statutes ; but it is to be regretted that some courts have manifested excessive reluctance to pronounce statutes un- constitutional. " Whatever respect maj^ be due to the legislature, that due to the Constitution is still greater." Lawrence, J., in Bunn v. The People^ 45 Illinois, 397, p. 419. The result has sometimes been' "to sacrifice the individual to the community." See Sedgwick on Damages, 5thed«, 121, 122. "It is not," said Mr. Sedgwick, "an agreeable observation to make, but I believe it cannot be denied, that the pro- tection afforded bj' the English government to propertj- is much more complete in this respect than under our system, although Parliament claims to be despotically supreme, and although we boast our submis- sion to constitutional restrictions. . . ." Sedgwick on Stat, and Const. Law, 523, 524, note. Parliamentarj' Acts, at the present time, usually contain carefully drawn clauses, scrupulousl}' providing for the indem- nit}' of those who are liable to be injured by the exercise of the powers granted by the Act. In this country it too often happens that the legislature neglect to carefully perform this dutj-, and the failure of the courts to pronounce the Act unconstitutional leaves the injured party without remed}-. In view of the " form that the constitutional provision has assumed," in the hands of some courts, " it must," said the same author, "be admitted that in practice our constitutional guarantees are very flexible things. . . ." Sedgwick on Stat, and Const. Law, 534. It is said that " if the legislature is competent to furnish the remedy, there is no denial of justice, though no action can be sustained at law." 1 Amer. Law Magazine, April, 1843, 57. Leave to apply to a future legislature for an act of indemnity is not the " certain remedy" to which (by Article 14 of the Bill of Rights) ever}- subject is entitled "for all injuries he may receive ... in his propert}-." Besides, "is CHAP. VI.] EATON V. BOSTON, CONCORD, KTC. RAILUOAD. 1075 the obligation to make him compensation, any stronger upon a future legislature than it was on that one b^' whose authority his property has been taken ; " and if they have " failed to make a constitutional pro- vision for his compensation," f' what assurance can he have" that any future legislature will do so? " It was, however, to place the rights of property upon higher grounds than the mere legislative sense. of justice and equity, that this prohibition upon legislative power was embodied in the bill of rights." Moore, J., in Buffalo B. B. & C. B. B. Co. v. Ferris, 26 Texas, 588, p. 602. ... It is familiar law that " where an agent exceeds his authority, what he does within it is valid, if that part be distinctly severable from the remainder." 1 Parsons on Contracts, 4lh ed., 58. The same principle applies to the exercise by the legislature of the power delegated to them by the Constitution. No sound argument can be founded upon the hardship to the grantees of not receiving all that the legislature under- took to convey to them. Conceding that the grantees, by assuming the performance of the duties required of them b^' the charter, have paid a full consideration for all the privileges which the charter purported to convey to them, how does their case differ from that of other unfortu- nate persons who have purchased property of an irresponsible party who had no right to sell ? Is the fact that the purchaser paid a full consid- eration to the wrongful vendor allowed to divest the title of the true owner? Yet, upon what other theory can it be said (1 Amer. Law Magazine, 75) that " we cannot look beyond the charter itself to deter- mine the duties and liabilities of the grantee " ? It is said that a land-owner is not entitled to compensation where the damage is merely "consequential." The use of this term " conse- quential damage" " prolongs the dispute," and " fntroduces an equivo- cation which is fatal to any hope of a clear settlement." It means both damage which is so remote as not to be actionable, and damage which is actionable. Sometimes it is used to denote damage which, though actionable, does not follow immediately, in point of time, upon the doing of the act complained of; what Erie, G. J., aptly terms " consequentia;l damage to the actionable degree." Brand v. H. & C. JR. Co., Law Reports, 2 Queen's Bench, 223, p. 249. It is thus used to signify damage which is recoverable at common law in an action of case, as contradistinguished from an action of trespass. On the other hand, it is used to denote a damage whicli is so remote a consequence of an act that the law affords no remedy to recover it. The terms "remote damages" and "consequential damages" "are not neces- sarily synonymous, or to be indifferently used. All remote damages are cohsequential, but all consequential damages are by no means remote." Sedgwick on Damages, 5th ed., 56. When, then, it is said that a land-owner is not entitled to compensation for " consequential damage," it is impossible either to affirm or deny the correctness of the statement until we know in what sense the phrase "consequential daraac^e " is used. If it is to be taken to mean damage which would 1076 EATON V. BOSTON, CONCORD, ETC. RAILROAD. [CHAP. VI. not have been actionable at common law if done by a private individual, the proposition is correct. The constitutional restriction was designed " not to give'new rights, but to protect those already existing.'' Pierce on Am. R. R. Law, 173 ; and see Rickett v. Directors, tfcc, of Metro- politan Railway Co., Law Reports, 2 House of Lords, 175, pp. 188, 189, 196. But this does not concern the present case, where it is vir- tually conceded that the injurj- would have been actionable if done b}' a private individual not acting under statutory authorit3'. If, upon the other hand, the phrase is used to describe damage, which, though not following immediatelj' in point of time«npon the doing of the act com- plained of, is nevertheless actionable, there seems no good reason for establishing an arbitrarj- rule that such damage can in no event amount to a " taking of property." The severity of the injur}' ultimately resulting from an act is not always in inverse proportion to the lapse of time between the doing of the act and the production of the result. Heavy damages are recov- ered in case as well as in trespass. The question whether the injurj- constitutes a " taking of property" must depend on its effect upon proprietary rights, not on the length of time necessary, to produce that effect If a man's entire farm is permanently' submerged, is the dam- age to him any less because the submerging was only the " consequen- tial " result of another's act? It has been said " that a nuisance by flooding a man's land was originally considered so far a species of ouster, that he might have had a remedy for it by assize of novel dis- seisin ; " but if it be conceded that at present the only common law remedy is by an action on the case, that does not change the aspect of the constitutional question. The form of action in which the remed}^ must be sought cannot be decisive of the question whether the injury falls within the constitutional prohibition. " We are not to suppose that the framers of the Constitution meant to entangle their meaning in the mazes " of the refined technical distinctions b}- which the com- mon-law system of forms of action is " perplexed and encumbered." Such a test would be inapplicable in a large proportion of the States, where the distinction between trespass and case has been annihilated by the abolition of the old forms of action. "We are not alone in the opinion that the phrase " consequential damage " has been misapplied in some of the discussions on this constitutional question ; — see the criticisms of Miller, J., in Pumj^elly v. Green Bay Company, 13 Wal- lace U. S. 166, p. 180 ; Paine, J., in Alexander v. City of Milwaukee, 16 Wisconsin, 247, p. 258 ; Sutherland, J., in People v. Kerr, 37 Barb. 357, pp. 403, 408 ; — and we think that the confusion thus engendered will account for some erroneous decisions. If this most ambiguous expression is to be used at all in this connection, the meaning attached to it should always be clearly defined, as is done in Pierce on Am. Railroad Law, 173. It may perhaps be urged that a decision in favor of the plaintiff will give rise to a multiplicity of suits by other claimants, many of whom CHAP. VI.] EATON V. BOSTON, CONOOKD, ETC. RAILROAD. 1077 have sustained no substantial damage. But tills affords no ground for denj'ing redress to this plaintiff, who has clearly sustained a substantial injury. Nor will the present decision be a precedent in future cases differing in their nature from the one before us. The answers given by other courts to similar objections are quite decisive. Ld. Den- man, C. J., in Regina v. Eastern Counties Railway Co., 2 Queen's Bench, 347, pp. 362, 363 ; Montague Smith, J., in Brandy. H. & C. Mailway Co., Law Reports, 2 Queen's Bench, 223, p. 245 ; Parlser, C. J., in Boston & Boxbury Mill Corp. v. Gardner, 2 Pick. 33, pp. 38, 39. . . . [Here follows, at considerable length, a learned classification and consideration. of the cases, ending with those designated as "the highway grade cases." The opinion closes as follows :] By tUe foregoing review of authorities, it appears that the number of actual decisions in irreconcilable conflict with the present opinion is much smaller than has sometimes been supposed, and that, in a large proportion of the cases cited, the application of the principles here main- tained would not have necessitated the rendition of a different judgment from that which the courts actually rendered in those cases. Thus far Eaton's case alone has been under consideration. The only difference between Eaton's case and Aiken's case arises from the fact that a small part of the ridge is included' in Aiken's farm, while none of it is on the farm of Eaton. This difference does not affect the pres- ent inquiry, wliich relates solely to the correctness of the ruhng at the trial. The court did not rule that Aiken could recover the damages occasioned to him by the entire cut through the ridge. The ruling was carefully limited to " such damages as have been caused" the plaintiffs " in consequence of the defendants' cutting away the ridge north of the plaintiffs' farms." If any damage was caused to Aiken by the defend- ants' removing any portion of that " small part" of the ridge which was included in his farm, he is not entitled to recover for it under this ruling. So far, then, as the correctness of the ruling is concerned, Aiken's case stands on the same legal principle as Eaton's. Under this ruling it will be for a jury to say how much of the injury to Aiken's meadow was occasioned by the removal of that part of the ridge which was north of Aiken's farm. In both cases the exception is overruled. As the defendants elect trial by jury, the order must be. Case discharged.^ 1 Of this strong and closely reasoned judgment, it has been said that, "The leading case upon the subject, -and the one which has contributed more than any other toward bringing about the change referred to in the last section is Eatan v. B. C. ^ j\l. R. R. Co., 51 N. H. 504." Lewis, Em. Domain, s. 58 (Chicago, 1888). The change here referred to is one thought by Mr. Lewis to have taken place " within the last twenty years," the nature of which is sufficiently indicated in the opinion. " That the ilowing of lands against the owner's consent, and without compensation, is a taking of his property in violation of that provision of our Constitution, and that of most or all the American States, which prohibits the taking of property without com- pensation, is a proposition which seems to me so self-evident as hardly to admit of illus- tration by any example which can be made clearer ; and which therefore can hardly 1078 EATON V. BOSTON, CONCORD, ETC. KAILEOAD. [CHAP. VI. need the support of authorities. But see-Hooker v. New Haven and Northampton Co., 14 Conn. 146; Bowe v. Granite Bridge Corp., 21 Pick. 344; Nevins v. C'% of Peoria, 41 111. 502, 510; Pettigrew v. Village of EoansuiUe, 25 Wis. 223, 231, 236; Pumpelly v. Gi'een Bay Co., 13 Wallace, 166. But the most satisfactory and best considered case which can be found in the books upon this subject, which examines, classifies, and analyzes nearly all the cases, and in the conclusions of which I wholly agree, is that of Eaton v. B. C. Sr M. R. R. Co., 51 N. H. 504-535."— Grand Rapids Booming Co. V. Jarvis, 30 Mich. 321 (1874), Christiancy, J., for the court. See the elaborate affirmation of this case in Thompson v. Androscoggin Riv. Imp. Co., 54 N. H. 545 (1874). Compare Weaoer v. Miss. ^ lium River Boom Co., 28 Minn. 534, 538 (1881); Janesville v. Carpenter, 77 Wis. 288 (1890); Anderson v. Henderson, 124 111. 164; Randolph, Em. Dora. s. 429; "y^.-Gcn. y. Tomline, 14 Ch. Div 58 (1880) ; Head v. Amosk. Co., supra, pp. 767-768 ; Turner, v. Nye, supra, p. 893 ; Wil- liams V. Nelson, 23 Pick. 141 ; see also Strong, J., for the court, in Transport. Co. v. Chicago, infra, p. 1082; and Earl, J., dissenting, in Story v. El. Ry. Co.,infra, p. 1105. It will be observed that the judgment in the principal case may rest upon other grounds than those on which the court puts it. The question of whether property has been taken under the power of eminent domain is, indeed, a question of substance ; it is not a mere matter of names, or of the alleged or nominal ground on which the legislature assumes to act. It seems that it should make no difference under what head of legislative power it is sought to justify an act, e. g., under the so-called police power or taxation, — if there be, in reality, and upon a large and just consideration of the matter, a taking, divesting, or destruction of property by the State for public purposes, compensation must be made. Such a doctrine, however, is to be applied with a recognition of well-known exceptions. and qualifications, in full view of that historical conception of the meaning of a taking of property for public purposes, as contrasted with the usual operations of public authority, not thought of as requiring compensation) which may be gathered from the established practices of all civilized governments, and particularly of our own an- cestors, and which is illustrated in such, a case as Com. v. Alger, 7 Cush. 53 (supra, p. 693), or Com. v. Tewksbury, 11 Met. '55. See supra, p. 699 and note. Compare also Mugler v. Kansas, 123 U. S. 623 {supra, p. 782) ; arid Miller r. Horton, 152 Mass. 540. A comparison, in the last case, of the dissenting opinion with that of thfe court will illus- trate the true nature of the inquiry in such cases and the difficulties of the subject. In reasoning on such questions there is danger in assuming that the framers of our con- stitutions used language in the definite and exact sense reached by modern analysis. It is moreover never to be forgotten that much in our constitutions is addressed to legislatures and not at all to courts ; that much injustice, in the way among other ways, of not making compensation where it should be given, for injuries suffel'ed from acts of the executive and the legislatui'e is beyond the reach of courts. See supra, pp. 151-154. Compare what is said in " Origin and Scope of the American Doctrine of Con- stitutional Law " (Little and Brown, 1893), 26 et seq., in discussing the meaning of the rule that laws are not to be set aside as unconstitutional unless they are so beyond a reasonable doubt : " In such a work there can be no permanent or fitting modus vivendi between the different departments unless each is sure of the full cooperation of the others, so long as its own action conforms to any reasonable and fairly permissible view of its constitutional power. The ultimate arbiter of what 'is rational and permis- sible is indeed always the courts, so far as litigated cases bring the question before them. This leaves to our courts a great and stately jurisdiction. It will only imperil the whole of it if it is sought to give them more. They must not step into the shoes of the law-maker, or be unmindful of the hint that is found in the sagacious remark of an English bishop nearly two centuries ago, quoted lately from Mr, Justice Holmes : — ' Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver, to all intents and purposes, and not the person who first wrote or spoke them.' ... If what I have said be sound, it is greatly to be desired that it should be more empha.si2ed by our coui-ts, in its full significance. It has been CHAP. VI.] KOCH V. DELAWARE, ETC. RAILROAD. 1079 KOCH V. DELAWARE, &c. RAILROAD COMPANY. SuPKEME Court of New Jersey. 1891. [53 N. J. Law, 256.] On demurrer to declaration. Argued at November Term, 1890, before Beaslet, Chief Justice, and Justices Dlson and Magie. For the plaintiff, McDermit and Maker. For, the demurrants, Bedle, Muirheid, and McGee. The opinion of the court was delivered by Beasley, Chief Justice, The declaration complains of damages arising from the flooding of her. lands by an act of the defendant alleged to be illegal. The lands so injured are described as adjoining a certain stream of water called Ned's Creek, which empties into a contiguous creek, known as Kingsland's Creek, and that the premises in question were drained and kept dry, until the grievance complained of, by means of a sluice at the mouth of the last-named stream. These allegations do not appear to have any relation to the case, except to show, with unnecessary particularity, that antecedently to the tort complained of, the plaintiffs' premises had not been subject to any wateiy influx. No complaint is made of any interference with the sluice or creeks thus in a measure described. The declaration then proceeds to the gravamen of the supposed cause of action. Briefly it is thus stated : That by a certain Act of the Legis- lature, the same being a supplement to "An Act to incorporate the Kingsland and Saw Mill Company," a certain tract of land is described, the northerly side of which abuts upon the line of the Boontpn branch often remarked that private rights are more respected hj the legislatures of some countries which have no written constitution than by ours. No doubt our doctrine of constitutional law has had a, tendency to drive out questions of justice and right, and to fill the mind of legislators with thoughts of mere legality, of what the Ponsti- tution allows, And moreover, even in the matter of legality, they have felt little responsibility ; if we are wrong, they say, the courts will correct it. Meantime they and the people whom they represent, not heing thrown back on themselves, on the responsible exercise of their own prudence, moral sense, and honor, lose much of what is best in the political experience of any nation ; and they are belittled as well as demoralized. If what I have been saying is true, the safe and permanent road towards reform is that of impressing upon our people a far stronger sense than they have oi the great range of possible mischief that our system leaves open, and must leave open to the legislatures, and of the clear limits of judicial power , so that responsibility may be brought sharply home where it belongs. The checking and catting down of legis- lative power by numerous detailed prohibitions in the Constitution, cannot be accom- plished without making the government petty and incompetent. This process has already been carried much too far in some of our States. Under no system can the power of courts go far to pave a people from ruin ; our chief protection lies elsewhere If this be true, it is of the greatest public importance to put the matter in its true light." — Ed. 1080 KOCH V. DELAWARE, ETC. EAILKOAD. [CHAP. VI. of the Morris and Essex Eailroad Company, and that the plaintiffs' premises are a part of the tract so set forth. Then follows an aver- ment that by another provision of the statute referred to it is enacted, ' ' that it shall not be lawful to make any opening through the cause- way or roadbed of the Boonton branch of the Morris and Essex Rail- road Compan3', whereby anj' overflow or tide-water from the meadows lying beyond the same shall be discharged upon " the tract of land just mentioned. The tort laid to the defendant is, that it " unlawfullj- made an open- ing through the causeway or roadbed* of the Boonton branch, and thereby caused the plaintiffs' lands to be overflowed hy the tide-water." These statements can have but a single meaning. They denote that the plaintiffs' lands are protected from the incoming of tide-water by the artificial structure described as the causeway of the railroad, and the wrong done is, that the defendant has, in part, removed that dam. It is, consequently, plain, that the plaintiflFs, in order to show a suable wrong, must malce it evident that they have a legal right to insist on the maintenance of the railroad structure in question. It is not sufficient for them to show that the3' will sustain a detriment by its removal ; the ground of their action is, and must be, a deprivation of a right that the law secures to them ; and, therefore, if thej' cannot require the keeping up of thi'. embankment, the}' cannot complain, in a court of law, of its destruction or its impairment, whether such act be Jone by its owner or bj- a stranger as an act of trespass. And this seems to be the theory upon which the present pleading has been composed. The plaintiffs' legal right to the unimpaired existence of this defensive roadway, so beneficial to their propei-ty, is described in the declaration as emanating from the legislative prohibition against an}' persons making an opening in it. As the language of the Act is plain to that effect, there can be no doubt of the validity of this reliance of the plaintiffs, if the Act itself be sustainable. And this seems to me to be the flaw in the plaintifl's' case ; the stat- ute appears to be destitute of all semblance of legality. It is a private Act, and it is not shown that it has even been accepted by the corporate body for whose benefit it was designed. It arbitrarily forbids the Boonton branch railroad to make use of its roadway in a particular manner — that is, to remove it at its pleasure, in whole or in part. This is not within the competency of legislation. It is not perceived how the law-maker can direct this corporate body to forever refrain from removing a roadbed constructed by it on its own propert}'. The legis- lature, by its edict, cannot burden the land of the railroad for the ben- efit of other propertj'. Inasmuch, therefore, as this statute cannot be sustained, the plain- tiffs' supposed cause of action has no basis. The defendant is entitled to judgment on the demurrer. CHAP. VI.] TRANSPORTATION CO. V. CHICAGO. 1081 In Transportation Go. v. Chicago, 99 U. S. 635 (1878), on error to the Circuit Court of the United States for the Northern District of Illinois, Strong, J., for the court said : " We are of opinion that no error has been shown in this record, though the assignments are very numerous. The ac- tion was case to recover damages for injuries alleged to have been sus- tained by the plaintiffs in consequence of the action oif the city authorities in constructing a tunnel or passageway along the line of La Salle Street and under the Chicago River, where it crosses that street. The plaintiffs were the lessees of a lot bounded on the east by the street, and on the south by the river, and the principal injury of which they complain is, that by the operations of the city they were deprived of access to their premises, both on the side of the river and on that of the street, during the prosecution of the work. It is not claimed that the obstruction was a permanent one, or that it was continued during a longer time than was necessary to complete the improvement. Nor is it contended that there was unreasonable delay in pushing the work to completion, or that the coffer-dam constructed in the river, extending some twenty- five or thirty feet in front of the plaintiff's lot, was not necessary, indeed indispensable, for the construction of the tunnel. "The case has been argued on the assumption that the erection of the coffer-dam, and the necessary excavations in the street, constituted a public nuisance, causing special damage tq the plaintiffs, beyond those incident to the public at large, and hence, it is inferred, the city is re- sponsible to them for the injurious consequences resulting therefrom. The answer to this is that the assumption is unwarranted. That cannot be a nuisance, such as to give a common-law right of action, which the law authorizes. We refer to an action at common law such as this is. A legislature may and often does authorize and even direct acts to be done which are harmful to individuals, and which without the authority would be nuisances ; but in such a case, if the statute be such as the legislature has power to pass, the acts are lawful, and are not nuisances, unless the power has been exceeded. In such grants of power a right to compensation for consequential injuries caused by the authorized erections may be given to those who suffer, but then the right is a creature of the statute. It has no existence without it. If this were not so, the suffering partj' would be entitled to repeated actions until an abatement of the erections would be enforced, or perhaps he might restrain them by injunction. . . . " It is immaterial whether the fee of the street was in the State or in the city or in the adjoining lot-holders. If in the latter, the State had an easement to repair and improve the street over its entire length and breadth, to adapt it to easj' and safe passage. " It is undeniable that in making the improvement of which the plaintiffs complain the city was the agent of the State, and perform- ing a public duty imposed upon it by the legislature ; and that persons appointed or authorized by law to make or improve a highway are not answerable for consequential damages, if they act within their jurisdic- 1082 TRANSPORTATION 00. V. CHICAGO. [CHAP. VI. tion and with care and skill, is a doctrine almost universally accepted alike in England and in tbis country. It was asserted unqualifiedly in The Governor and Oompaiii/ of tlie British Cast^Plate Manufacturers V. Meredith, 4 Durnf. & E. 794 ; in Sutton v. Clarke, 6 Taun. 28 ; and in Hoviton v. Crowther, 2 Barn. & Cres. 703. It was asserted in Green V. The Borough of Beading, 9 Watts (Pa.), 382 ; O' Connor v. Pitts- burgh, 18 Pa. St. 187; in Callender\. Marsh, 1 Pick. (Mass.) 418; as well as bj' the courts of numerous other States. It was asserted in Smith V. The • Corporation of Washington (20 How. 13oj, in this court ; and it has been held by the Supreme Court of Illinois. The decisions in Ohio, so far as we know, are the solitary exceptions. The doctrine, however it may at times appear to be at variance with natural justice, rests upon the soundest legal reason. The State holds its highways in trust for the public. Impi-overaents made by its direc- tion or by its authority are its acts, and the ultimate responsibility, of course, should rest upon it. But it is the prerogative of the State to be exempt from coercion bj' suit, except by its own consent. ' This prerogative would amount to nothing if it does not protect the agents' for improving highways which the State is compelled to emploj-. The remedy, therefore, for a consequential injurj- resulting from the State's action through its agents, if there be an}', must be that, and that onlj', whitih the legislature shall ^ive. It does not exist at common law. The decisions to which we have referred were made in view of Magna Charta and the restriction to be found in the constitution of every State, that private property shall not betaken for public use without just compensation being made. But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional pro- vision. ' Theydo not entitle the owner of such property to compensa- tion from the State or its agents, or give him any right of action. This is supported by an immense weight of authoritj'. Those who are curi- ous t-o See the decisions will find them collected in Cooley on Consti- tutional Limitations, page 542 and notes. The extremest qualification of the ■ doctrine is. to be found, perhaps, in Pumpelly v. Green Bay Company, 13 Wall. 166, and in Eaton v. Boston, Concord, & Montreal Railroad Co., 51 N. H. 504. In those cases it was held that perma- nent flooding of private property- may be regarded as a " taking." In those cases there was a physical invasion of the real estate of the private owner, and a -practical ouster of his possession. But in the present case there was no such invasion. No entrj^ was made upon the plaintiffs' lot. All that was done was to render for a time its use more inconvenient. " The present Constitution of Illinois took effect on the 8th of August, 1870, after the work of constructing the tunnel had been substantially completed. It ordains that private property shall not be ' taken or damaged ' for public use without just compensation. This is an exten- CHAP. VI.] CHICAGO ■». TAYLOK. 1083 sion of the common provision for the protection of private property. But it has no application ' to this case, as was decided by the Supreme Court of the State in Chicago v. Humsey, recently decided, and re- ported in Chicago Legal News, vol. x. p. 333, 87 111. 348. That case also decides that the city is not liable for consequential damages result- ing from an improvement made in the street, the fee of which is in the cit3', provided the improvement had the sanction of the legislature. It also decides, that La Salle Street is such a street, and declares that a recovery of such damages by an adjacent lot-holder has been denied by the settled law of the State up to the adoption of the present Con- stitution. There would appear, therefore; to be little left in this case for controversy."^ I i CHICAGO V. TAYLOR. Supreme Court of the United States. 1887. [125 U. S. 161.] Trespass on the case. Judgment for plaintiffs. Defendant sued out this writ of error [to the Circuit Court of the United States for the Northern District of Illinois.] The case is stated in the opinion of the court. Mr. Frederick S. Winston and Mr. John W. Green,, for plaintiff in error. Mr. George A. FoUansbee and Mr. Thomas M. Hoyne, for defendants in error. Me. Justice Harlan delivered the opinion of the court. This action was brought by Moses Taylor, as owner of an undivided Interest in a lot in Chicago, having sixty feet front on Lumber Street, one hundred and fifty feet on Eighteenth Street, and three hundred feet on the South Branch of Chicago River, to recover the damages sus- tained b}' reason of the construction, by that o\ty, of a viaduct on Eigh- teenth Street, in the immediate vicinity of said lot. The cit}' did this work under the power conferred by its charter " to lay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks, and public grounds, and vacate the same," and " to construct and keep in repair bridges, viaducts, and tunnels, and to regulate the use thereof." It appears that the con- struction of the viaduct was directedt by special ordinances of the city council. For many years prior to, as well as at, the time this viaduct was built, the lot in question was- used as a coal-j-ard, having upon it sheds, ma- chinery, engines, boilers, tracks, and other contrivances required in the business of buying, storing, and selling coal. The premises were long so used, and they were peculiarly well adapted for such business. There was evidence before the jury tending to show that, by reason of 1 See City Caimcil v. Maddox,89 Ala. 181 (1890). — Ed. 1034 CHICAGO V. TAYLOR. [CHAP. VI. the construction of the viaduct, the actual market value of the lot, for the purposes for which it was speciall}' adapted, or for any other purpose for which it was likely to be used, was materially diminished, access to it from Eighteenth Street being greatly obstructed, and at some points practically cut off; and that, as a necessary' result of this work, the use of Lumber Street, as a way of approach to the coal-yard b}- its occupants and buyers, and as a way of exit for teams carrying coal from the yard to customers, was seriously impaired. There was also evidence tending to show that one of the results of the construction of the viaduct, and the approaches on either side of it to the bridge over Chicago River, was, that the coal-yard was often flooded with water running on to it from said approaches, whereb3' the use of the premises as a place for handling and storing coal was greatly interfered with, and often became wholly impracticable. On behalf of the city there was evidence tending to show that the plaintiff did not sustain any real damage, and that the inconveniences to occupants of the premises, resulting from the construction and main- tenance of the viaduct, were common to all otlier persons in the vicin- ity, and could not be the basis of an individual claim for damages against the citj-. There was a verdict and judgment against the city. The court below having refused to set aside the judgment and grant a new trial, the case has been brought here for review in respect to errors of law which, it is contended, were committed in the admission of incompetent evidence, in the refusal of instructions asked b^' the citj', and in the charge of the court to the jury. Before noticing the assignments of error it will be well to ascertain what principles have been announced by this court or by the Supreme Court of Illinois in respect to the liability of municipal or other cor- porations in that State, for damages resulting to owners of private property from the alteration or improvement, under legislative author- My, of streets and other public highways. By the Constitution of Illinois, adopted in 1848, it was provided that no man's property shall " be taken or applied to public use without just compensation being made to him." Art. XIII. § 11. While this Con- stitution was in force Chicago commenced, and substantiall3' completed, a tunnel under Chicago River, along the line of La Salle Street, in that city. It was sued for damages bj' the Northern Transportation Com- pan3'', owning a line of steamers running between Ogdensburg, New York, and Chicago, and also a lot in the latter citj', with dock and wharfage priv- ileges, the principal injury of which it complained being that, during the prosecution of the work by the city, it was deprived of access to its premises, both on the side of the river and on that of the street. This court — in Transportation Co. v. Chicago, 99 U. S. 685, 641 — held that in making the improvement of which the plaintiff complained the city was the agent of the State, performing a public duty imposed by the legislature ; and that " persons appointed or authorized by law to CHAP. VI.] CHICAGO V. TAYLOB. 1085 make or improve a highway are not answerable for consequential dam- ages, if they act within their jurisdiction, and with care and skill, is a doctrine almost universally accepted, alike in England and in this coun- try," — citing numerous cases, among others Smith v. Corporation of Washington, 20 How. 135. " The decisions to which we have re- ferred," the court continued, " were made in view of Magna Charta, and the restriction to be found in the Constitution of every State, that private property shall not be taken for public use without just compen- sation being made. But acts done in the proper exercise of govern- mental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such propertj' to compensation from the State or its agents, or give him any right of action." This view, the court further said, was not in conflict with the doctrine announced in Pumpelly v. Green Bay Co., 13 Wall. 166, which was a case of the permanent flooding of private property, a ph^-sical invasion of the real estate of the private owner, a practical ouster of his possession. In City of Chicago v. Rumsey, 87 Illinois, 348, 363, the Supreme Court of Illinois, upon a full review of previous decisions, and espe- cially referring to Moses v. Pittsburg, Fort Wayne, & Chicago B. B. Co., 21 Illinois, 516 ; Roberts v. Chicago, 26 Ilhnois, 249 ; Murphy v. Chicago, 29 Illinois, 279 ; Stone v. Fairhury, Pontiac, and North- western Baih-oad Co., 68 Illinois, 394 ; Stetson v. The Chicago and Eoanston Bailroad Co., 75 Illinois, 74 ; and Chicago, Burlington, and Quincy Railroad Co. v. McQinnis, 79 Illinois, 269, held it to have been the settled law of that State, up to the time of the adoption of the Constitution of 1870, that there could be " no recovery bj' an adjacent property-holder, on streets the fee whereof is in the city, for the merely consequential damages resulting from the character of the improvements made in the streets, provided such improvement has the sanction of the legislature." But the present case arose under, and must be determined with refer- ence to, the Constitution of Illinois adopted in 1870, in which the pro- hibition against the appropriation of private property for public use, without compensation, is declared in different words from those em- ployed in the Constitution, of 1848. The provision in the existing Constitution is, that " private property shall not be taken or damaged for public use without just compensation." An important inquiry in the present case is to the meaning of the word " damaged " in this clause. The earliest case in Illinois in which this question was first directly made and considered, is Rigney v. City of Chicago, 102 Illinois, 64, 74, 80. That was an action to recover damages sustained by the plaintiff by reason of the construction by Chicago of a viaduct or bridge along Halstead Street and across Kinzie Street, in that city, some 220 feet west of his premises, fronting on the latter street. There was no claim 1086 CHICAGO. V. TAYLOR. [CHAP. VI. that the plahitiff's possession was disturbed, or that anj' direct physical injury was done to his premises by the structure in question. But the complaint; was, that his communication with flalstead Street, bj- way of Kinzie Street, had been cut oflf, whereby he was depriA'ed of a pub- lic right-enjoyed by him in connection with his premises, and an injury inflicted upon him in excess of that sustained by the public. For that, special injury, in excess of the injury done to others, he brought suit. The trial court peremptorily instructed the jury to find for the city, holding, in effect, that the fee of the streets being in the citj', there could ■ be no. recovery for the obstruction of which the plaintiff complained. That judgment was reversed, an elaborate opinion being delivered, reviewing the principal cases under the Constitution of 1848, and re- ferring to the adjudications in the courts of other States upon the general question as to what amounts to a taking of private property for public use within the meaning of such a provision as that contained in the former Constitution of Illinois. After alluding to the decisions of other State Courts to the effect that such a provision extended onl}" to an actual appropriation of propertj- by the State, and did not embrace consequential injuries, although what was done resulted, substantialh', in depriving the owner of its use, the Supreme Court of Illinois re- viewed numerous cases determined by it under the Constitution of 1848. Nsvins v. City of Peoria, A\ Illinois, 502, decided in 1866; Gillam v. Madison County Railroad, 49 Illinois, 484 ; City of Aurora v. Gil- lett, 66 Illinois, 132 ; A^erora v. Heed, 57 Illinois, 29 ; City of Jackson- ville v. Ziambert, 62 Illinois, 519 ; Toledo, Wabash, &c. Railroad y. Morrison, 71 Illinois, 616. It saj-s : " Whatever, therefore, may be the rule in other States, it clearlj' appears from this review of the cases that previous to, and at the time of the adoption of the present Consti- tution, it was the settled doctrine of this court that an}' actual physical injury to private property bj' reason of the erection, construction, or operation of a public improvement in or along a public street or high- waj., whereby its appropriate use or enjoyment was materiallj- inter- rupted, or its value substantially impaired, was regarded as a taking of private propertj', within the meaning of the Constitution, to the extent of the damages thereby occasioned,, and actions for such injuries were uniformly sustained." Touching the provision in the Constitution of 1870, the court said that the framers of that instrument evidentlj- had in view the giving of greater security to private rights by giving relief in cases of hardship not covered bj' the preceding Constitution, and for that purpose ex- tended the right to compensation to those whose property had been " damaged " for public use ; that the introduction of that word, so far from being superfluous or accidental, indicated a deliberate purpose to make a change in the organic law of the State, and abolished the old test of direct phj-sical injurj' to the corpus or subject of the property affected. The new rule of civil conduct, introduced by the present CHAP. VI. J CHICAGO V. TAYLOR. ] 087 Constitution, the court adjudged, required compensation in all cases where it appeared " tliere has been some physical disturbance of- a right, either public or private, which the plain tiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public gener- ally." The Chief Justice concurred in the judgment, and in the general views expressed by the court, holding that while the owner of a lot on'a street held it subject to the right of tlie public to improve it in an}' ordi- nary and reasonable mode deemed wise and beneficial by the proper public functionaries, he was 'entitled, under the Constitution ofl870, to compensation in case of a sudden and extraordinary change in the grade of the street or highway, whereby- the value of his property -is in fact impaired. Three of the justices of the State coui't dissented. As we understand the previous cases of Pekin v. Brereton, 67 Illi- nois, 477 ; Pekin v. Winkd, 77 Illinois, 56 ; Shawneetown v. Mason, 82 Illinois, 337 ; Elgin v. JEaton, 83 Illinois, 535 ; and Stack v. St. Louis, 85 Illinois, 377, — all of which arose under the present Constitution Of Illinois, — they proceeded upon the same grounds as those expressed in Rigney v. Chicago, although in no one of them did the court dis- tinctly declare how far the present Constitution differed from the former in respect to the matter now before us. At the same term when Rigney's case was decided, the State court had occasion to consider this question as presented in a somewhat dif- ferent aspect. The Union Building Association owned a building and lot three and a half blocks from a certain part of La Salle Street in Chicago, which the city proposed to close up, and permit to be occupied bj' the Board of Trade with its building. As the streets adjacent to the plaintiff's property were to remain in the same condition as to width, etc., that they were in before, and as the closing up of a portion of La Salle Street would not, in any degree, interfere with access to its lot, or with the use and enjoyment of it, it was held that there was no special or particular injury done for which an action would lie against the city. Tliat case was distinguished from Rig)iey v. Chicago in this, that in tlie latter case the court held that " property-holders bordering upon streets have, as an incident to their ownership of such property, a right of access by way of the streets, which cannot be taken away or materially impaired by the city, without incurring legal liability to the extent of the damages thereby occasioned." City of Chicago v. Union Building Association, 102 Illinois, 379, 397. In Chicago tSb Western Indiana Railroad y. Ayres, 106 Illinois, 518, the court — all the justices concurring — observed : " It is needless to say our decisions have not been harmonious on this question, but in the case oi Rigney v. City of Chicago, 102 Illinois, 64, there was a full review of the decision of our courts, as well as the courts of Great Brit- ain, under a statute containing a provision similar to the provision in our Constitution. The conclusion there reached was, that under this 1088 CHICAGO V. TAYLOR. [CHAP. VL constitutional provision a recovery may be had in all cases where pri- vate property has sustained a substantial damage by the making and using an improvement that is public in its character, — that it does not require that the damage sLall be caused by a trespass, or an actual phj'sieal invasion of the owner's real estate, but if the construction and operation of the railroad or other improvement is the cause of the dam- age, though consequential, the party may recover. We regard that case as conclusive of this question. The case of Pittsburg & Fort Wayne Railroad Co. v. Reich, 101 Illinois, 157, is in point on this question of damages, and the case of City of Chicago v. Union JBuild- ing Association, 102 Illinois, 379, als(5 reviews the authorities and approves the doctrine in Rigney v. Chicago, supra. These cases, there- fore, overrule the doctrines of the earlier cases." Our attention has not been called to, nor are we aware of any subsequent decision of the State court giving the Constitution of 1870 an interpretation different from that indicated in Rigney v. Chicago, and Chicago, Sec. Railroad Co. V. Ayres. We concur in that interpretation. The use of the word " damaged " in the clause providing for compensation to owners of pri- vate property, appropriated to public use, could have been with no other intention than that expressed bj' the State court. Such a change in the organic law of the State was not meaningless. But it would be meaningless if it should be adjudged that the Constitution of 1870 gave no additional or greater security to private property, sought to be appropriated to public use, than was guaranteed by the former Constitution. The charge to the jury by the learned judge who presided at the trial gave effect to the principles announced in the foregoing cases arising under the present Constitution of Illinois. It covered every vital ques- tion in the case, in language so well guarded that the jury could not well have misunderstood the exact issue to be tried, or the proper bearing of all the evidence. So far as the special requests for instruc- tions in behalf of the eit}' contained sound propositions of law they were fully embodied in the charge to the jury. In behalf of the city it was contended that, if liable at all, it was only liable for such damage as was done to the market value of the property by rendering access to it difficult or inconvenient. The court said, in substance, to the jury that the flooding of the lot bj' water running down upon it from the approaches to the viaduct was an element of damage which they might consider ; though if such flooding merely caused inconvenience to the occupant in the conduct of his business, such as his coal getting wet, or its becoming more diflflcult to keep his scales properly adjusted, these were not elements of impairment to the value of the propertj' for purposes «f sale. The jury were also instructed that although the occupant may have found it difficult to haul coal out of the lot, and although it may have been much more unprofitable to conduct the business of selling coal at this lot, that did not weigh upon the question as to the value of the lot in the market. Other obser- CHAP. VI.J CHICAGO V. TAYLOE. 1089 vations were made to the jury, but the court, in different forms of ex- pression, said to tliem that the question was, whether, by reason of the construction of the viaduct, the value, that is, the market price, of the property had been diminished. The scope of the charge is fairly indi- cated in the following extract : " The real question is, has the value of this property to sell or rent been diminished by the construction of this viaduct ? It may be that it can no longer be used for the purposes of a coal-yard, or for any purpose for which it has heretofore been used, but that would not be material if it can be rented or sold at as good a price for other purposes, except that if the proof satisfies you that any of the permanent improvements put on the lot for the particular business which has been heretofore carried on there, and for which it was improved, have been impaired in value, or are not worth as much after this via- duct was built and the bridge was raised as before, apd you can from the proof determine how much these improvements are damaged, the plaintiff would be entitled to recover for such damage to the improve- ments, — that is to siiy, this lot being improved for a specific purpose, if the proof satisfies you that it can no longer be rented or used for that purpose, and that thereby these improvements have been lost or im- paired in value, then the impairment of value to these improvements is one of the elements of damage which the plaintiff is entitled to have considered and passed upon and included in his damage." It would serve no useful purpose to examine in detail all the requests ' for instructions, and compare them with the charge, or discuss the questions arising upon exceptions to the admission of evidence. After a careful consideration of all the propositions advanced for the city, we are unable to discover any substantial error committed to its prejudice. It maj' be, as suggested by its counsel, that the present Constitution of Illinois, in regard to compensation to owners of private property " dam- aged" for the public use, has proved a serious obstacle to municipal improvements ; that the sound policy of the old rule, that private prop- erty is held subject to any consequential damages that may arise from the erection on a public highway of a lawful structure, is being con- stantly vindicated ; and that the constitutional provision in question is "a handicap" upon municipal improvement of public highwa3's. And it may also be, as is suggested, doubtful whether a consti- tutional convention could now be convened that would again incor- porate in the organic law the existing provision in regard to indirect or consequential damage to private property so far as the same is caused by public improvements. We dismiss these several suggestions with the single observation that thej' can be addressed more properlj' to the people of the State in support of a proposition to change their Constitution. "We perceive no error in the record, 'and the judgment is Affirmed.^ 1 See also Osborne t. Mo. Pac. Ry. Co., 147 U. S. 248 (1893) ; Jackson v. Chic. ^c. Ry. Co., 41 Fed. Rep. 656 (West. D. Mo. 1890) ; Peel v. Atlanta, 85 Geo. 138 (1890) : VOL. I. — 69 1090 PHILADELPHIA AND TRENTON KAILROAD CASE. [CHAP. VL In the Case of the Philadelphia and Trenton Railroad Company, 6 Wharton, 25,43 (1840), in considering a statute purporting to auth- orize the corporation to construct and operate its road in public highways and providing no compensation, the court (Gibson, C. J.) said : " The remaining exception is more important, because it calls in question, for specific reasons, the validity of the statute which is the foundation of Tex. Sj-c. Ry. Co. v. Meadows, 73 Tex. 32 ; McMahon v. St. Louis, ^c. Ey. Co., 41 La. Ann. 827 ; Omaha R. R. Co. v. Janecek, 30 Neb 276 (1890) ; Gainesville, ^c. R. Co. v. Halt, 78 Tex. 169 (1890) ; Smith v. St. Josephf^l S. W. Rep. (Mo. 1894). In Hot Springs R. R. Co. v. Williamson, 136 U. S. 121, 129 (1890), Lamar, J., for the court, said : " It is proper to add that we concur in the view taken of this case by the Supreme Court of Arkansas. That court held that the Act of Congress granting the right of way to the defendant company over the strip of land upon which its road was to be operated (which in this case was along the line of Benton Street, an original street in the town of Hot Springs, and used as such at the time of the passage of the Act) carried with it the right to construct, maintain, and operate its line of railroad therein, and to appropriate such right as a location for its turn-table and depots, and for any other purpose necessary to the operation of its road ; but that it was equally clear, under the provisions of the present Constitution of the State of Arkansas, that if, in the exercise of that right, the property of an adjoining owner was damaged in the use and enjoyment of the street upon which the road was located, such owner would be entitled to recover such damages from the company. It further held that the contention of the plaintiff in error that the Act of Congress invested it with an absolute title to the street along which its road was located, and exempted it from any liability for consequential damages resulting to an abutting owner from the laying of its track in a proper and skilful manner, was founded upon cases arising under the familiar constitutional re- . striction that private property shall not be taken for public use without compensation, which decisions generally turned upon the question, what is a taking, within the mean- ing of such provision? That the Constitution of that State of 1878, which provides that ' private property shall not be taken, appropriated, or damaged for public use without just compensation,' has changed that rule ; that all the decisions rendered under similar constitutional provisions concur in holding that the use of a street by a railroad company as a site for its track, under legislative or municipal authority, when it interferes with the rights of adjoining land-owners to the use of the street, as a means of ingress and egress, subjects the railroad company to an action for damages, on account of the diminution of the value of the property caused by such use ; and, lastly, that even conceding the authority of the town of Hot Springs to pass the ordi- nance authorizing the company to construct and maintain the railroad embankment, track, and turn-table complained of, it cannot impair the constitutional right of the defendant in error to compensation. " We think those views are sound and in accordance with the decisions of this court in Pennsylvania Railroad Company v. Miller, 132 U. S. 75, and New York Elevated Rail- road v. Fifth Nat. Bank, decided May 5, 1890, 135 U. S. 432." Compare City of Pueblo v. Strait, 36 Pac. Rep. 700 (Col. May, 1894). In this case Hatt, C. J., for the court, said -. " The insertion of the word ' damaged ' first appears in the amended Constitution of Illinois, adopted in 1870. It has since been incor- porated into the constitutions of West Virginia, Pennsylvania, Arkansas, Missouri, Alabama, Nebraska, Texas, Georgia, California, Colorado, Kentucky, Montana, and the Dakotas." A previous case in Colorado is cited, in which the court " was of opin- ion that it [this provision] was a recognition of a new right of action not necessarily known to the common law; and this principle has been recognized since in several of the cases supra." In Omaha v. Kramer, 25 Neb. 489, 492 (1889), the court (Maxwell, J.), after criticising the decision in Pa, R. R. Co. v. Marchant, 119 Pa. 541, said : " Section 21, Article I. of the Constitution of this State provides that ' the property of no person CHAP. TI.] PHILADELPHIA. AND TEENTON RAILROAD CASE. 1091 the proceeding, and which is said to be unconstitutional because it impairs the obligation of contracts ; by violating the chartered rights of the districts of Spring Garden and the Northern Liberties ; by violating the contract under which the right of passage is assured to the inhabi- tants of this particular street ; bj' taking the property of the street without compensation to the districts or individual proprietors ; and by monopolizing the street in derogation of the public and private uses to shall be taken or damaged for public use without just compensation therefor.' The section above taken, except the words 'or damaged,' was in the Constitution of 1867. Under that Constitution, if any portion of a person's real estate was taken for public use, he could recover all the damages sustained by the taking ; but if none of his real estate was taken for public use he could recover nothing, although his property had been greatly damaged by such use. The provision, therefore, is remedial in its nature, and the well-known rule that, in the construction of remedial statutes, three points are to be considered, viz., the old law, the mischief, and the remedy, and so to construe the Act as to suppress the mischief and advance the remedy, is to be applied. 1 Blackstone Com. 87. Applying this rule to the provision in question, and it em- braces aU damages which affect the value of a person's property, and includes cases like that under consideration. In other words, the words ' or damaged,' in Sec. 21, Art. I. of the Constitution, include all actual damages resulting from the exercise of the right of eminent domain which diminish the market value of private property. Reardon v. San Francisco, 66 Cal. 492 ; Atlanta v. Green, 67 Ga. 386 ; C. 4r fV. I. R. Co.v. Ayres, 106 111. .511 ; Rigney v. Chicago, 102 Id. 64; St. L., V.,^ T.H. R. R. Co. V. Bailer, 82 Id. 208 ; Hot Springs R. R. Co. v. Williamson, 45 Ark. 429 ; Gottschalk V. C. B. Sr Q. R. Co., 14 Neb. 5iO; Schaller v. Omaha, 23 Id. 325. " The fact that damages are consequential will not preclude a recovery, if the con- struction and operation of the public improvement is the cause of the injury ; and it is not necessary that the damages be caused by trespass or an actual physical invasion of the owner's real estate. The test is : Excluding general benefits, is the property in fact damaged ? If so, the owner is entitled to compensation. " It is not within the scope of the authority of the law-making department of the government to take the property of A and give it to B, even if B has the right to condemn property for public use. This being so, it is equally beyond the power of such department to confer the ■ right on B to damage or destroy the property of A without making compensation therefor. The right of the legislature to authorize the taking of private property for public use is based on the condition that an equivalent in value be paid to the owner. If property is diminished in actual value by reason of a public improvement, it is to the extent of the diminution taken for public use, as much so as if it was directly appropriated. The cases differ in regard to the mode of appropriation only. In the one case all the property is taken, while in the other it is taken only to the extent that it is diminished in value, and in either case the owner is entitled to be compensated for his loss. Laws are made to protect private rights, and not to destroy them, the only exception being where a party by his own fault has for- feited the same. By protecting and enforcing the rights of each individual, the rights of all are respected and secured, and the humblest person made to feel that he can suf- fer no wrong to his estate without receiving adequate redress. Constitutional guaran- tees are of little avail unless carried out in the spirit in which they were framed, and no plea of public benefits should be permitted to impoverish the owner of private prop- erty, or override a plain constitutional inhibition. If the public desire to erect works for public use, then the public — the party benefited — must bear the burden, while each owner of private property, as one of the public, in some of the modes provided by law, must pay his share of the indebtedness or expense, and thus the burdens are equalized. The judgment of the District Court is reversed, and the cause remanded for further proceedings. Reversed and remanded." But see Randolph, Eminent Domain, s. 154. — Ed. 1092 PHILADELPHIA AND TRENTON RAILROAD CASE. [CHAP. TI. which it had been applied. This, perhaps, is the substance of all these multifarious specifications. " What is the dominion of the public over such a street? In England, a highway is the property of the king as parens patriae, or universal trustee ; in Penns^'lvania, it is the property of the people, not of a par- ticular district, but of the whole State ; who, constituting as they do the legitimate sovereign, may dispose of it by their representatives, and at their pleasure. Highways, therefore, being universally' the property of the State, are subject to its absolute direction and control. An exclusive right of ferriage across a navigable stream, which is a public highway, is grantable only by it ; and the navigation of the stream may be impeded or broken up by it at its pleasure. In the construction of her S3-stem of improvements, Pennsj'lvania has acted on this principle. Her dams across her principal rivers to feed her canals, have injured if they have not destroyed the descending navigation by the natural channels ; and this without a suspicion of want of constitutional power. The right of passage by land or by water, is a franchise which she holds in trust for all her citizens, but over which she holds despotic sway, the remedy for an abuse of it being a change of rulers, and a consequent change of the law. No person, natural or corporate, has an exclusive interest in the trust, unless she has- granted it to him. Her right extends even to the soil, being an equivalent for the six per cent, thrown into every public grant as compensation for what may be reclaimed for roads ; and she has acted on the basis of it ; for though damages for special injuries to improvements have been allowed by the general road laws, nothing has been given for the use of the ground. This prin- ciple was broadly asserted in The Commonwealth v. Fisher, 1 Penns. Kep. 466. " Such being a highway as a subject of legislative authority, in what respect is a street in an incorporated town to be distinguished from it ? A municipal corporation is a separate community ; and hence a notion that it stands in relation to its streets as the State stands in relation to the highways of its territor}'. That would make it sovereign within its precincts — a consequence not to be pretended. The owner of a town plot lays out his streets as he sees fit, or the owner of ground in an incorporated town dedicates it to public use as a street ; but it follows not that the dominion of the State is not instantly attached to it. The general road law extends to everj- incorporated town from which it is not excluded bj' provision of the charter ; and the statute book is full of special Acts for opening, widening, altering, or vacating streets and alleys in Philadelphia and our other cities. Were it not for the universality of the public sovereigntj', the public lines of communi- cation, by raih'oads and canals, might be cut bj' the authority of every petty borough through which they pass ; a doctrine to which Pennsyl- vania cannot submit, and which it would be dangerous to urge. It would be strange, therefore, were the streets of an incorporated town, not public highways, subject perhaps to corporate regulation for pur- CHAP. VI.j PHILADELPHIA AND TRENTON RAILROAD CASE. 1093 poses of grading, curbing, and paving ; but subject also to the para- mount authority of the legislature in the regulation of their use by carriages, rail-cars, or means of locomotion yet to be invented, and this without distinction between the inhabitants and their fellow-citizens elsewhere. The doctrine was carried to its extent in Rung v. Shoen- berger, 2 Watts, 23, in which it was aflSrmed that, though a city has a qualified property in its public squares, it holds them as a trustee for the public for whose use the ground was originally left open ; and that the enjoyment of them is equally free to all the inhabitants of the Com- monwealth, subject to regulations not inconsistent with the grant. In Barter v. The Commonwealth, 3 Penns. Rep. 259, it was inadvertently said that the title to the soil of a street is in the corporation, whose right to improve it for purposes which conduce to the public enjoyment of it, is exclusive and paramount to the right of an inhabitant. The point was onlj' incidentally involved, and consequently not very partic- ularly considered ; but the question of title, involving, as it has done, no more than the bounds of the grant, has lain between the grantor and the grantee, or those deriving title from them. In no case has title been claimed by the corpoi'ation. In the Union Burial Ground Company v. Robinson, 5 Whart. 18, in which the point was elaborately argued, the contest was betwixt the grantor and a purchaser from the grantee ; and though the cause was eventually decided on another ground, the court inclined to think, on the authority of many decisions, that the title to the street, even had it been opened, would have remained in the grantor ; and such appears to be the principle of Kirlcham, v. Sharp, 1 Whart. Rep. 323. The legal title to the ground, therefore, remains in him who owned it before the street was laid out ; but even that is an immaterial consideration ; for an adverse right of soil could not impair the" public right of way over it, or prevent the legislature from modifying, abridging, or enlarging its use, whether the title were in the corporation or a stranger. I take it then that the regulation of a street is given to a corporation only for corporate purposes, and subject to the paramount authority of the State in respect to its general and more extended uses ; and that there would have been no invasion of chartered rights in tijis instance, even did either of these districts stand in a relation to the public which would impart to its charter the qualities of a compact. " What then is thelnterest of an individual inhabitant as a subject of compensation under the constitutional injunction that private property be not taken by a corporation for public use without it? Even agreeing that his ground extends to the middle of the street, the public have a right of way over it. Neither the part used for the street, nor the part occupied by himself, is taken away from him ; and as it was dedicated to public use without restriction, he is not within the benefit of the constitutional prohibition, which extends not to matters of mere annoy- ance. The injury of which he can complain, is not direct but conse- quential. It consists either in an obstruction of his right of passage, 1094 PHILADELPHIA AND TRENTON RAILROAD CASE. [CHAP. VI. which is personal ; or in a depreciation of his propert}' by decreasing the enjoyment of it ; but no part of it is taken from him and acquired by the company. The, prohibition, even when it precluded a seizure of private property imraediatdy by the State, was not largely interpreted, nor was there reason that it should be, as ample compensation was obtained from her sense of justice without it. The suiferers were over- paid, aud this sort of aggression was alwaj's courted as a favor. But though she usually compensated consequential damage, it was of favor, not of right. Nor did she always make such compensation. / In one well-known instance she destroyed a ferry by cutting off access to the shore, without-provision for the sufferer; and in The Commonwealth V. Michter, 1 Peuns. Rep. 467, damages were unavailingly claimed from her for flooding a spring by a dam. The clause in the amended Con- stitution which narrows the former prohibition to a taking of private property for a public use by a corporation, is to receive the same con- struction ; the word ' taking ' being interpreted to mean, taking the property altogether ; not a consequential injury to it which is no taking at all. For compensation of the latter, the citizen must depend on the forecast and justice of the legislature. " On the subject of the next specification, it seems scarcely necessary to say that monopolies are not prohibited by the Constitution ; and that to abolish them would destro}' many of our most useful institutions. Every grant of privileges, so far as it goes, is exclusive ; and every exclusive privilege is a monopol}:. Not only is every railroad, turn- pike, or canal such, but every bank, college, hospital, asylum, or church, is a monopoly ; and the ten thousand beneficial societies incorpo- rated by the executive on the certificates of their legality, by ithe attor- nej'-general and judges of the Supreme Court, are all monopolies. Nor does it seem more necessary to remark, on the subject of the con- cluding specifications of exception to the confirmation of the report by tlie associate judges of the sessions alone, that the approval was an act of the court ; and that they were competent to hold it. " Proceedings affirmed." * ^ Compare 1 Hare, Am. Const. Law, 371, 378-380, Struthers t. Dunkirk, Sfc. Ey. Co., 87 Pa. 282 (1878). In Borough of Millvale v. Evergreen Ry. Co., 131 Pa. 1, 22, 23 (1889), the court (Green, J.) cited the case of the Phil.^ Trenton Ry. Co. as "the leading case upon this subject," and quoted with approval the following language of Black, C. J., in Com. v. R. R. Co., 27 Pa. 354 : " The rigljof the supreme legislative power to authorize the building of a railroad on a street or other public highway is not now to be doubted. ... If such conversion of a public street to purposes for which it was not originally designed does operate severely upon a portion of the people, the injury must be borne for the sake of the far greater good which results to the public from the cheap, easy, and rapid conveyance of persons and property by railway- • ■ • The right of a company, therefore, to build a railroad on the streets of a city, depends, like the lawfulness of all its other acts, upon the terms of its charter. Of course, when the power is igiven in express words, there can be no dispute about it. It may also be given by implication." — Ed. CHAP. VI.] STOKY V. NEW YOKK ELEVATKD KAILROAD CO. 1096 STORY V. THE NEW YORK ELEVATED RAILROAD COMPANY. New York Court of Appeals. 1882. [90 N. Y. 122.] Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and countj' of New York, entered upon an order made November 10, 1879, which afSrmed a judgment in favor of defendant, entered upon a decision of the coui't on trial at Special Term. This action was brought to restrain defendant from constructing its road in that portion of Front Street, in the city of New York, opposite plaintiflPs premises. . . . [Here follows a statement of the plaintiff's title to his lots, consisting' mainly of extracts from certain deeds.] The trial court found the following facts among others : " Sixth. That the railway of the defendants, as proposed to be constructed on Front Street, will cause no substantial or material impediment to the passage of persons, animals, and vehicles in and along the street, and but slight obstruction to the light or air from the street. " Thirteenth. That the title of the plaintiff and of his grantors of his said premises was derived from the grantees under the said grants from the city in some cases by devise, in some by inheritance, and in some by conveyance ; and that in all the descriptions the premises are described as bounded in front on Front Street. '^' Foin/rteenth. That Front Street occupies the strip of land which in the said grants is mentioned as Water Street, and that prior to the execution of the grants, that street was projected across the lots thereby granted and conveyed. " Fifteenth. That shortly after the execution of the said grants, the water lots therein described were filled in by the grantees or those claiming under or through them ; that by them Front Street was erected and made, and that presumably, it was erected and made as directed by one of the survej'ors of the city. '■'■Sixteenth. That upon plaintiff's said premises is erected a ware- house, occupying the entire front and four stories high ; and that since his occupation he has used the same for his ofHce, and for the sale of the merchandise in which he deals. " Seventeenth. That Frpnt Street, for the length of the block in front of the plaintiff's said premises, is a street, of the width about forty-five feet; that the street- way between the curbstones is about twenty-four feet wide ; that on the southerly side from the curbstone to the building is about eleven feet ; that on the northerly side from the 1096 STORY V. NEW YORK ELEVATED RAILROAD CO. [CHAP. VL. curbstone to the buildings is about ten feet; and that of the space, between the curbstone and the buildings about four and one-half feet is used for the stoops and entrances to areas, and the residue for sidewalk. " Eighteenth. That the defendants propose to construct an elevated railroad through Front Street, in front of the plaintiff's premises, to extend from the Battery to the Harlem River ; that the general mode of construction in Front Street, consists of a series of columns about fifteen inches square, fourteen and one-half feet high, placed about five inches inside the edge of the sidewalk, and carrying cross-girders, which support four sets of longitudinal girders, upon which are placed cross-ties for three sets of rails for a steam railroad ; that the trans- verse girders are thirty-nine inches .deep, the longitudinal girders thirtj'- three inches deep ; that the cars which the defendants propose to run over such railroad will have bodies eleven feet high above the tracks ; that the cars in running will project about two feet over the sidewalk on either side of the street ; that they will reach to within about nine feet of the plaintiff's premises ; and that the defendants propose to run trains as often as once in every three minutes and at rates of speed as high as eighteen or twenty miles an hour. " Nineteenth. That the plaintiffs premises occupj' the southeasterly corner of Front and Moore streets, and that the defendants propose to put one of their columns at that corner on the line of Moore Street, and inside the curb line. " Twentieth. That the said elevated railroad structure will to some extent obscure the light of tlie abutting premises opposite to it ; that the passing trains will also to some extent obstruct such light, and give to the light a flickering character, which would be to some extent ob- jectionable for business purposes, when an uninterrupted light was ner-essary, and to some extent impair the general usefulness of plain- tifTs premises. " Twenty-first. That the line of columns abridges the sidewalk, and correspondingly interferes with the street, as a thorouglifare, where such columns are located thereon. " Twenty-second. That the fronts of the abutting buildings would be exposed to observation from passengers in the passing trains, and the privacy of those in the second or upper stories of the premises invaded. " Twenty-third. That the structure as proposed in Front Street also will fill so much of the carriage-wa\' of the street as is about fifteen feet above the road-way." Also, that the board of aldermen of the city had, by resolution duly adopted, given its consent for the construction and operation of its road through Front Street. John E. Parsons and Wm. M. Evarts, for appellant. Joseph H. Choate, for property owners. Julian T. Davies and Roger Foster, for Caso and others. David Dudley Field, for respondent. . . . CHAP. VI.] STORY V. NEW YORK ELEVATED RAILROAD CO. 1097 Tkact, J. The principal question to be determined in this case is, has the plaintiffs property been taken for public use within the meaning of the Constitution of this State ? The plaintiflf claims that by the true construction of the deeds from the city to his original grantors, the bed of Front (then Water) Street was included in the grant, and that he is now the owner of the fee of one-half of the bed of Front Street in front of his lots. But if this claim be not sustained, then he Insists that, in the original grants of the premises in question, the city of New York covenanted with his grantors that Front Street should be and remain an open street forever. That this covenant, being for the benefit of the abutting lands, is one running with the land, and the right or privilege secured thereby con- stitutes pi'operty within the meaning of article 1, section 6, of the Constitution, which provides that " private property shall not be taken for public use without just compensation." . . . The trial court finds that the grantees made and constructed the several streets mentioned in the grant, and that the plaintiff is now the owner of said lots upon which " is erected a warehouse occupying the entire front, and four stories high." The defendant insists, and the trial court found, that, by the true construction of the deed, the bed of Front Street was excepted therefrom, and never passed to the plaintiff's original grantors. . . . Assuming the construction placed upon the grant by the court below to be correct, we have to consider the effect of such a covenant in a grant of land made by a municipal corporation having authority to lay out and open streets, and to acquire lands for that purpose. . . . These cases are directly in point, and it follows that, by the law of this State as interpreted and held by its highest courts for the last fifty years, without criticism or doubt, the grantees of the city, by force of their grant, acquired the right to have Front Street kept forever as an public street. The street thus became what is known to the common law as the ■ servient tenement, and the lots abutting thereon the domi- nant tenement. Such servitude constitutes a private easement in the bed of the street attached to the lots abutting thereon, and passed to the plaintiff as the owner of such lots. That an easement is property, within the meaning of the Constitution, cannot be doubted. This was expressly adjudicated in this court in the case of Arnold v. The Hudson Eiver Railroad Company (55 N. Y. 661). Arnold owned a nail factory, together with the right to take a certain quantity of water from a creek, and to convey it over or under the surface of intervening lands to such factory to propel machinery. For this purpose he built a trunk about six feet above the surface, through which the water was conveyed. In 1850, the defendant, having acquired title to a portion of the intervening lands, constructed tracks thereon, removed the por- tion of the trunk over said surface without Arnold's knowledge, and constructed another trunk under the lands, through which the water was conveyed and then raised by a pen- stock into the old trunk near 1098 STORY V. NEW YOBK ELEVATED RAILROAD CO. [CHAP. VL the factory. Seld, by the concurrence of all the judges voting, that Arnold's easement was property within the meaning of Article 1, section 6, of the Constitution, and therefore could not — nor could any portion of it ^- be taken for public use without compensation. In Doyle v. Zord (64 N. Y. 432; 21 Am. Rep. 629), this court held that a lessee of a store had an easement for the purpose of light and air, in a yard attached to the building. In iSixth Ave. B. B. Co. V. Kerr et al. (72 N. Y. 330), this court also held that an easement in a public street may be condemned and taken for public use. The next question to be considered is, has the plaintiflTs property been taken by the defendant, within the meaning of the Constitution of this State ? To constitute such a taking it is sufficient that the person claiming compensation has some right or privilege^ secured by grant, in the property appropriated to the public use, which right or privilege is destroyed, injured, or abridged by such appropriation. Has the plain- tiflTs easement in Front Street been destroj-ed, or injured, by the appropriation of the street to the uses of the defendant's road ? As we have seen, the plaintiff acquired nothing more than a right, to have the street kept as a public street, and this must be deemed to be held Subject to the power of the legislature to regulate and control the public uses of the street. This brings us to the question whether the occupation of the street by the -defendant's road is eompatible with, or destructive of its use as a public street. Front Street is about forty-five feet in width, the road-way between the curbstones being about twenty-four feet wide. The trial court has found as a fact that the defendant's road is to be constructed upon a series of columns about fifteen inches square, four- teen and a half feet high, placed about five inches inside the edge of •the sidewalk and carrying cross girders, which support four sets of longitudinal girders, upon which are placed cross ties for three sets of rails for a steam railroad ; that the girders are thirty-nine inches deep ; the longitudinal girders thirty-three inches deep ; that the line of columns abridges the sidewalk and correspondingly interferes with the street and thoroughfare where such columns are located thereon. That the structure as proposed on Front Street will fill so much of the carriage-way of the street as is about fifteen feet above the- road- way. The eflfect of such structure the court finds will be to some extent to obscure the light of the abutting premises opposite to it, and will to some extent impair the general usefulness of the plaintiff's premises and depreciate their value. Can the street be lawfully appropriated to such a structure without making compensation to the plaintiff for his easement therein ? This is a question of power. If the legislature has power to authorize such a structure, Without compensation, its exercise cannot be regulated. by the courts. If one road may be authorized to be constructed upon two series' of iron columns placed in the street, another may be authorized CHAP. VI.] STOEY V. NEW YORK ELEVATED RAILROAD CO. 1099 to be supported upon brick columns, or upon brick arches spanning the street. If a superstructure may be authorized which spans the entire carriagfe-way at fifteen feet above the bed of the street, one may be authorized which spans the entire street, from building to building, thus excluding light and air from the street and from the property abutting thereon. Thus an open street would be converted into a covered way, and so filled with columns or other permanent structures as to be practically impassable for vehicles. The city undertook and agreed with the plaintiff's grantors that Front Street, when constructed by them, should forever thereafter continue and be kept as a public , street- itr like manner as other streets of the same city now are or law- fully ought to be. This fixes with deflniteness and precision the char- acter of the street which the parties to the contract intended to secure. As the other streets of the city were, or lawfully ought to be, so this street was to be ; it was to be an open street ; one which would furnish light and air to the abutting property, and a free and unobstructed passage to the inhabitants of the citj'. A covenant to keep a strip of land open as a public street forever is a covenant not to build thereon, and brings this case directly within the principle of the cases oi Hills v. Miller, The Trustees of Watertown, and White v. Cowen and Bagg, and the Phoenix Ins. Co: v. The Continental Ins. Co. While the legislature may regulate the uses of the street as a street, it has, we think, no power to authorize a structure thereon which is sub- versive of, and repugnant to the uses of the street as an open public street. Whether a particular structure authorized by the legislature is consistent or inconsistent with the uses of the street as a street must be largely a question of fact depending upon the nature and character of the structure authorized. The court below found that the series of iron columns abridges the street, and the superstructure erected thereon obscures the light to -the adjoining premises, and depreciates the value of the plaintiffs property. The extent to which plaintiff's property is appropriated is not mate- rial ; it cannot, nor can any part of it, be appropriated to the public use without compensation. We think such a structure closes the street pro tarito and thus directly invades the plaintiff's easement in the street as secured by the grant of the city. Whatever view be taken of the facts of this branch of the case, the •same result must be reached. If the title to the bed of the street passed to the grantees of the city, then the public acquired a mere easement in the street, resulting from its dedication to public use, the easement resting upon the express covenant of the owner of the fee that the street sha^U be kept as a public street forever. The fee remained in the owner making the dedication, and he having sold lots abutting upon the street, the purchaser, as we have already seen, obtained a perpetual right of way over the space called a street to the 1100 STORY V. NEW YORK ELEVATED RAILROAD CO. [CHAP. VL full extent of its dimensions. Whether the bed of the street was excepted from the grant of the city, and the title thereof never vested in the grantees, or whether the bed of the street was included in the grant and passed to such grantees, is of little importance, as in either event the plaintiff has a private easement of a right of way in the street, coupled with an express covenant that the entire space, marked on the map as Front Street, shall forever be kept as a public sti'eet. The defendant's railroad, as authorized by the legislature, directly encroaches upon the plaintiff's easement and appropriates his property to the uses and purposes of the corporation. This constitutes a taking of property for public use. It follows that such a taking cannot be. authorized except upon condition that the defendant makes compensa- tion to the plaintiff for the property thus taken. The conclusion here reached is not in conflict with the determination of this court in the cases of The People v. Kerr (27 N. Y. 188), Kel- linger v. Forty-Second St., etc., M. H. Co. (50 Id. 206), and other sim- ilar cases. We agree with Church, Ch. J., in the case last cited, that "it is not quite clear as to what was intended to be decided by the court in The People v. ITerr, relative to the rights of abutting owners." . . . By the Act of 1813 the city acquired the fee in the street, in trust, however, for a particular public use. Conceding that this trust is for the benefit of the abutting owner, as well as for the public, the only right which he has in the street is the right to insist that the trust be faithfully executed. So long as the street is kept open as a public street, the abutting owner cannot complain. The question presented in the case of People v. Kerr, was whether the particular structure there authorized was inconsistent with the continued use of the streets as open public streets of the city. . Whether it was or not was a ques- tion of fact dependent upon the nature and character of the structure there involved. The court found and determined that it was not incon- sistent with the public use of a public street, but was in aid of such uses. And in Kellinger v. The Forty-second Street, etc., R. R. Co. (50 N. Y. 206), this court limits the decision in the case of The People v. Kerr, to a " simple declaration that the legislative authority to con- struct a railroad on the surface of the street without a change of grade was a legitimate exercise of the power of regulating the use of public streets for public uses." The question whether the abutting owners upon streets opened under the Act of 1813 had the right to prevent their being converted to a use destructive of their existence as public streets was not deemed by the court to be involved in that case. . . . Had the Act in that case authorized the corporations to take perma- nent and exclusive possession of portions of the street, to build sidings, and to permanently occupy them with rows of cars standing in front of the stores and residences of abutting owners, and to erect permanent CHAP. VI. J STOKY V. NEW YORK ELEVATED RAILKOAD CO. 1101 depot buildings within the limits of the streets for the accommodation of their passengers, we cannot doubt that a diflferent result would have been reached in that case. The fact that a particular structure is found to be consistent with the uses of a street is no evidence that a different structure is not inconsistent with such uses. The conclusion reached in the present case is based upon the character of the structure here involved. The language of Wright, J., in The People v. Kerr, that the abutting owners have no property, estate, or interest in land forming the bed of the street in front of their respective premises to be protected by the right of eminent domain, must be construed with ref- erence to the point thus being considered. This court had held in the case of Williams v. The New York Central B.B. Co. (16 N. Y. 107), that where the public had acquired a mere right of way over the land of another, the laying down of railroad tracks and constructing a steam railroad in the street of a citj' was an enlargement of the use as under- stood and contemplated by the parties at the time the land was acquired, and imposed an additional burden upon the fee, and that such Act could not be authorized without compensation to the owner. This case was cited and relied upon in support of the claim of the abutting owners ; but the answer was that the abutting owners did not own the fee of the street; that such fee being in the public, the legis- lature might lawfully appropriate it to any public use consistent with the trust for which it was held, notwithstanding such use of a street may not have been known or contemplated at the time the land was acquired. Having parted with the fee, the abutting owner could not maintain trespass or waste, and against an Act which did nothing more than to impose an additional burden upon the fee, he could not invoke the inhibition of the Constitution that private property shall not be taken for public use without compensation. Thus understood, we think the language of Wright, J., not subject to criticism, and furnishes no support to the claim now made that the owner, whose lands were taken and are now held in trust, to be appropriated and used as open public streets forever, has no standing in court to insist that the trust shall be kept and that the streets shall not be destroyed. . . . That this trust created by the Act of 1813 was intended to be for the benefit of the abutting owner, as well as for the public, we cannot doubt. City property has little or no value disconnected from the streets upon which it abuts. The opening of a city street makes the property abutting thereon available for the purposes of trade and com-^ merce, and greatly enhances its value. The Act of 1813 proceeds upon the assumption of this well-known fact, and the damages sus- tained by reason of the taking were assessed in view of the trust assumed by the public, that such lands were to be kept as open public streets forever. The public did not assume to take the lands in fee- simple absolute, but took and paid for a lesser estate ; and, in pur- suance of the theory of the statute that the abutting owner has a special interest in the street, the cost of the lands was immediately assessed 1102 STOEY V. NEW YORK ELEVATED RAILROAD CO. [CHAP. VL back upon the abutting property. All the owner has ever received for the lands taken under this Act is the benefit accruing to his abutting property by reason of the* trust for which the lands are held.. Having surrendered his land in consideration of the trust assumed by the pub- lic, if the trust can now be abrogated and the streets surrendered to the uses and purposes of a railroad corporation, it follows that, by in- direction, private propert}": may be taken for public use against the con- sent of the owner, and without compensation. We have examined the other cases cited by the learned counsel for the respondent, and in none of them do wei find authority for the claim here made. The case of The Transportation Company v. Chicago (99 U. S. 635), is not in point. The injury there complained of was necessarily done in the extension of a city street. The interruption was temporary,' ceasing with the completion of the work. This case is decided upon the elementary principle that the public have a right to make such use of the land taken for a street as may be deemed, neces- sary for its proper construction, repair, or maintenance. Within this power is included the right to fix the grade of the street, and to change such grade from timfei to time as -the necessities of the public may require ; but, whether the grade be elevated or depressed, it is still a public street, to which the public have the right of free access, subject to such police regulations as maybe adopted by the public authority having charge and control of the same. The argument has been pressed upon our attention with great ability that as railroads, like streets, are intended to facilitate trade and com- merce, and lands taken for either are taken for public use, the legisla-. ture may, in its discretion, appropriate the public streets of our cities to the use of railroad corporations, and this without reference to the form of their structure or the extent of the injury wrought upon prop-- erty abutting thereon. This is a startling proposition, and one well cal- culated to fill the owners of such property with alarm. It cannot be that the vast property abutting on the streets of our great cities is held by so feeble a tenure. This court has repeatedly held that such a rule has no application where the abutting owner owns the fee of the bed of the street ; and we are of opinion that in cases where the public has taken the fee, but in trust to be used as a public street, no structure upon the street can be authorized that is inconsistent with the continued use of the same as an open public street. The obligation to preserve it as an open street rests in contract written in the statute under which the lands were taken and which may not be violated by the exercise of any legislative discretion. Whatever force the argument may have as applied to railroads built upon the surface of the street, without change of grade, and where the road is so constructed that the public is not excluded from any part of the street, it has no force when applied to a structure like that authorized in the present case. The answer to the argument is that lands taken for a particular public use cannot be appropriated to a different use without further compensation ; that the CHAP. VI.] STOEY V. NEW YORK ELEVATED EAUROAD CO. 1103 authority attempted to be conferred by the legislature upon the defend- ant to take exclusive possession of portions of the public street, and to erect a series of iron columns on either side thereof, upon which a superstructure is to be erected spanning the street and fllUng the road- way at fifteen feet above the surface, thus excluding light and air from the adjoining premises, is an attempt to appropriate the street to a use essentially inconsistent with that of a public street, and in respect to the land in question violates the covenant of the city made with tiie plaintiff's grantors, and in respect to lands acquired under the Act of 1813 violates the trust for which such lands are held for public use. The argument drawn from the great benefit which these roads have conferred upon the city of New York can have but little weight in determining the legal question presented in this case. No doubt these roads have added much to the aggregate wealth of the city of New York, and have greatly promoted the convenience of its citizens ; but the burden of so great a public improvement cannot rightfully be cast upon a few of its citizens, by appropriating their property to the public use, without compensation. The inliibition found in the Constitution against the right of the sovereign to appropriate private property to public use without making compensation therefor was intended to secure all citizens alike against being compelled to contribute unequally to the public burdens. We are of opinion that the law under which the defendant is incorT porated authorizes it to acquire such property as may be necessary for its uses and purposes, upon making compensation therefor. This was substantially determined in the Matter of New York Elevated Bail- road (70 N. Y. 327) ; Gilbert Elevated Railway Co. (Id. 361). We have reached in this case the following conclusions : First. That the plaintiff, by force of the grant of the city, ?Qade to his grantors, has a right or privilege in Front Street, which entitles him to have the same kept open and continued as a public street for the benefit of his abutting property. Second. That this right or privilege constitutes an easement, in the bed of the street, which attaches to the abutting property of the plain- tiff, and constitutes private propertj', within the meaning of the Consti- tution, of which he cannot be deprived without compensation. Third. That such a structure as the court found the defendant was about to erect in Front Street, and which it has since erected, is incon- sistent with the use of Front Street as a public street. Fourth. That the plaintiff's property has been taken and appro- priated by the defendant for public use without compensation being made therefor. Fifth. That the defendant's acts are unlawful, and as the struc- ture is permanent in its character — and, if suffered to continue, will inflict a permanent and continuing injury upon the plaintiff — he has the right to restrain the erection and continuance of the road by in- junction. 1104 STORY V. NEW YORK ELEVATED RAILROAD CO. [CHAP. VL Sixth. That the statutes under which the defendant is organized authorize it to acquire such property as may be necessary for its con- struction and operation by the exercise of the right of eminent domain. Seventh. The injunction prohibiting the continuance of the road in Front Street should not be issued until the defendant has had a reason- able time after this decision to acquire the plaintiff's property by agree- ment, or by proceedings to condemn the same. Eakl, J. (dissenting). At the threshold of this case is presented the inquiry whether the plaintiff's lot extends to the centre of Front Street. I think it does not. ... * For a long time anterior to the date of the deed Front Street had become like the other streets of the citj', and had been maintained and kept in repair by the city. It owned the fee of nearly all the streets within its limits, and it must have been the common practice of con- veyancers to exclude the streets from the grants of adjoining lots by confining measurements to the margin of the streets. Reading the precise measurements in plaintiff's deed, in the light of these circum- stances I think there is little ground for dispute that his grantors intended to limit their grant to the margin of the street, and that such intent should have effect is shown by the authorities above cited. Therefore as the plaintiff did not own any of the soil in Front Street, it matters not where the title to it rested. As to him, it may be treated as if it were in the cit^', and I shall so treat it in the further discussion of this case. Whatever private rights then the plaintiff has in this street are such and such only as belong to him as an abutter upon the street. Such rights as he has in common with the public generally cannot be enforced in this action or in any other action in his name. It is not dispute' that to maintain this action the plaintiff must show that in violation of the Acts under which the defendant was organized, and of the Constitution, "private property" of the plaintiff has been taken without compensation. It is not sufficient for him to show that he is injured or suffers damage from the construction or operation of defend- ant's railway, or that his adjoining property is deteriorated in value. He must show that his private property is in some proper sense taken, and to this effect are nearly all the authorities in this countrj-, except in States where provision is made in the Constitution or laws that compensation shall be made for property damaged or injuriously affected, as well as for property taken. In Sedgwick on Statutory and Constitutional Law, 519, the learned author, speaking of the constitu- tional provision which prohibits the taking of private property for public use without compensation, says: "It seems to be settled to entitle the owner to protection under this clause the property must be actually taken in the physical sense of the word, and that the proprietor is not entitled to claim remuneration for indirect or consequential dam- ages, no matter how serious or how clearly and unquestionably resulting from the exercise of the power of eminent domain." In Dillon on Ma- CHAP. VI.J STORY V. NEW YOEK ELEVATED RAILROAD CO. 1105 nicipal Corpoi'ation, § 784, it is said that " although the adjoining prop- erty may be injured, still it is not, in a constitutional sense, taken for public use." In Transportation Co. v. Chicago (99 U. S. 636), Judge Strong said that " acts done in the proper exercise of governmental powers and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the State or its agents, or give him any right of action. This is supported by au immense weight of authority." In 0^ Connor v. Pittsburgh (18 Penu. St. 187), it was held, after two arguments of the case and much con- sideration, that the constitutional provision for the case of private prop- erty taken for public use extends not to the case of property injured or destroyed. See, also, the cases of Hatch v. The Vermont Central R. R. Co. (25 Vt. 49), and Richardson v. The Vermont Central R. R. Co. (Id. 473), where will be found a very learned discussion of the subject and many observations quite applicable to this case. The same rule is laid down in Radcliff's Executors v. The Mayor, etc., of Brook- lyn (4 N. Y. 195). It was there supported by such cogent reasons and full citation of authorities as to place it beyond question in this State, and it has received the uniform sanction of our courts. Our attention is called to two cases (Pumpelly v. Green Bay Co., 13 Wall. 166; and Eaton v. The B. C. & M. R. R. 51 N. H. 504; 12 Am. Rep. 147), wliich are supposed to take a new departure in the construction of the constitutional provision we are now considering. They are spoken of in the subsequent case of Transportation Co. v. Chicago as " the extremest qualification of the doctrine " to be found ; they hold that permanent flooding of private property may be regarded as a " taking," and thus they may be justified on the ground that there was a physical invasion of the real estate of the private owner and a practical ouster of his possession. We should not be embarrassed by any subtle meaning to be given to the word " property " in the constitutional provision. The broad mean- ing sometimes given to it b}- law writers whose definitions are more apt to confuse than enlighten, or a meaning which can be evolved only by philologists and etymologists, was probably not in the minds of the framers of our Constitution ; they must be supposed to have used the word in its ordinary and popular signification, as representing some- thing that can be owned and possessed and taken from one and trans- ferred to anQther. In popular parlance there is a distinction between taking propertj- and injuring property. If the word is to have the broad meaning given to it by Austin and certain German and French Civilians, to whose definitions our attention has been called, then it would include every interference with and injury or damage to land by which its use and enjoyment become less convenient or valuable. Such a sense has never been given to it or countenanced in any decision involving the constitutional provision as to taking private property. If VOL. I. —70 1106 STOKT V. NEW TOKK ELEVATED RAILROAD CO. [CHAP. Vt the word is to have such a broad signification, then it was useless to provide in the English Land Clauses Act of 1845, that compensation should be made for land taken not only, but also for land " inju- riously affected," and in the Constitution and laws of some of the States that compensation shall be made for both land taken and land damaged. I do not deem it necessarj' to define precisely what property rights abutting owners have in the streets of the city of New York adjoining their lots. I will assume, without deciding it, that the streets cannot be absolutely closed against their consent without some compensation to them ; for the limitations upon the power of the legislature in refer- ence to closing streets have not been precisely determined in this State. (Brooklyn Park Comm'rs v. Armstrong, 45 N. Y. 234 ; 6 Am. Rep. 70; Coster v. Mayor, etc., 43 N. Y. 399 ; Fearing v. Irwin, 55 Id. 486.) If the plaintiff has an unqualified private easement in Front Street for light and air and for access to his lot, then such easement cannot be taken oi> destroyed without compensation to him. {Arnold V. The Budson R. B. B. Co., 55 N. Y. 661.) But whatever right ah abutter, as such, has in the street is subject to the paramount authority of the State to regulate and control the street for all the purposes of a street, and to make it more suitable for the wants and convenience of the public. The grade of a street may, under nnthorlty of law, be changed, and thus great damage may be done to an abutter. The street may be cut down in front of his lot so that he is deprived of all feasible access to it, and so that the walls of his house maj' fall into the street, and j-et he will be entitled to no compensation {Radcliff's JExecutors V. The Mayor, etc., supra; O' Connor v. Pittsburgh, supra; Callen- der V. Marsh, 1 Pick. 418) ; and so the street may be raised in front of his house so that travellers can look into his windows and he can have access to his house onl}' through the roof or upper stories, and all light and air will be shut away, and yet he would be without any remedy. The legislature may prescribe how streets shall be used, as such, by limiting the use of some streets, or the parts of streets, to pedestrians or omnibuses, or carriages, or drays, or b3' allowing them to be occupied under proper regulations for the sale of haj^ wood, or other produce. It may authorize shade trees to be planted in them, which will to some extent shut out the light and air from the adjoining houses. Streets cannot be confined to the same use to which they were devoted when first opened. They were opened for streets in a city and may be used in any way the increasing needs of a growing city may require. Thej^ maj- be paved ; sidewalks maj' be built ; sewer, water, and gas pipes may be laid ; lamp-posts maj' be erected, and omnibuses with their noisj' rattle over stone pavements, and other new and strange vehicles may be authorized to use them. All these things may be done and they are still streets, and used as such. Streets are for the passage and transportation of passengers and property. Sup- pose the legislature should conclude that to relieve Broadway in the city CHAP. VI.] STORY V. NEW YORK ELEVATED RAILROAD 00. 1107 of New York from its burden of travel and traffic it was necessary to have an underground street below the same ; can its authority to authorize its construction be doubted? And for the same purpose could it not authorize a way to be made fifteen feet above Broadway for the use of pedestrians ? When the streets become so crowded with vehicles that it is inconvenient and dangerous for pedestrians to cross from one side to another, can it be doubted that the legislature could authorize them to be bridged, so that pedestrians could pass over them, and that it could do this without compensation to the abutting owners, whose light and air and access might to some extent be interfered with? These improvements would not be a destruction of or a depar- ture from the use to which the land was dedicated when the street was opened ; but they would render the street more useful for the very purpose for which it was made, to wit: travel and transportation. If by these improvements the abutting owners were injured, they would have no constitutional right to compensation, for the reason that no property would be taken and the injury would be merely consequential. And if the public authorities could make these improvements, then the legislature could undoubtedly authorize them to be made by quasi pub- lic corporations, organized for the purpose, as it can authorize plank- road and turnpike companies to take possession of highways and take toil from those who use them. So in process of time railways came to be used for transportation of persons and property ; and a controversy soon arose whether they could be constructed in the streets of cities without compensation to the abutting owners. It was determined that thej- could not, when such owners owned the fee of the street. ( Wager v. The Troy Union R. B. Co., 2.5 N. Y. 526 ; Craig v. The Rochester City & Brighton R. B. Co., 39 Id. 404.) But where they do not own the fee they are entitled to no compensation, as no private property is taken from them within the meaning of the Constitution. That this is the rule was distinctly recognized in the two cases last cited and was adjudicated in the cases of The People v. Kerr (27 N. Y. 188), and Kellinger V. The Forty Second- Street, etc., R. R. Co. (50 Id. 206). In the case of The People v. Kerr, there was uncontradicted proof that the construction and operation of the railway in the street would cause serious damage to the owners of adjoining property, and that such property would be depreciated in value from twenty to twenty-five per cent, and the court found that the construction and operation of tlie railway "would be a material interference with and injury to the use and enjoyment of the lots fronting on said street in such manner and to such extent that the same would constitute a continuous private nui- sance to the plaintiffs" as owners of adjoining lots; and yet it held that the abutting owners were not entitled to compensation. It was adjudged that the construction of a city railroad upon the surface of the street was an appropriation to public use ; that the street was under the unqualified control of the legislature, and that any appro- 1108 STORY V. NEW YOKK ELEVATED RAILEOAD CO. [CHAP. VL priation of it to a public use by legislative authority was not a taking of private property so as to require compensation to the citj- or abut- ting owners. The decision seems to have been based upon the broad ground that the legislature could authorize the land in the street which had been taken for or dedicated to a public use to be devoted to any public use whatever. But even if it did not go so far as this, it cannot be disputed that it went so far as to hold that the legislature could authorize the streets to be devoted to any public use not inconsistent with their use as streets. In Kellinger v. The Street Railwmj "Co. the case of TAe People v. Kerr was approved, and it was held that the owners of property adjoining a street in the city of New York, laid out under the Act of 1813, have an easement in the street in common with the whole people to pass and repass and also to have free access to their premises, but that the mere inconvenience of such access occasioned bj- the lawful use of the street by a railroad is not the subject of an action ; and that a complaint alleging that defendant laid its track so near the sidewalk in front of the plaintiffs premises as not to leave sufficient space for a vehi- cle to stand, and that he and his family vrere thereby incommoded in leaving and returning to their residence, and the rental value of his • premises was greatly depreciated, did not contain a cause of action. Church, Ch. J., speaking of the case of The People v. Kerr^ said: " It clearly holds that the abutting owners had no property in the street, which was taken for the railroad, for which they were entitled to compensation." The decisions in these two cases were in no degree based upon the fact that the railwaj's were constructed upon the surface of the streets. It can make no difference in principle whether the railway be on the surface or above or below the surface so long as it serves the same public purpose, to wit : the transportation of persons and propert3-. The principle lying at the foundation of these cases, stated most favor- ably to the plaintiff, is that a railway was simply a new mode of using the streets for the purpose for which thej' were originally made, and that if the new use produced any greater inconvenience or injury to the abutting owners than the old use, it was damnum absque injuria. Nor did these cases proceed upon anj- distinction between horse rail- ways and those upon which steam is the motive-power. If the legisla- ture could authorize a railway to be operated in any street by horse power, it certainly must have the same right to allow it to be operated by steam, electricitj-, or any other motive-power. As stated by the learned author of Thompson on Highways, 400, " The distinction be- tween horse railroads and those on which steam is the motive power is not made by anj' of the cases in the Court of Appeals, but is expressly denied by some of them, and is in conflict with the reasoning and prin- ciple of all of them." In Wager v. Troy Union H. M. Co., Smith, J., writing the prevailing opinion, said : " It is true that the actual use of the street by the railroad may not be so absolute and constant as to CHAP. VI.] STOKY V. NEW YORK ELEVATED RAILROAD CO. 1109 exclude tlie public from its use. With a single track, and particularly if the cars used upon it were propelled by horse-power, the interruption of the public easement in the street might be very trifling and of no practical consequence to the public at large. But this consideration cannot affect the question of right of property or of the increase of the burden upon the soil. It would present simply a question of degree in respect to the enlargement of the easement, and would not affect the principle." In the same case, Sutherland, J., in his dissenting opin- ion, said : "In this case the railroad, I assume, was intended to be and was operated by steam. I cannot see how that affects the question of power." In Craig v. Rochester City, etc., B. li. Co. {supra), Miller, J., writing the opinion, said: "I am at a loss to see any apparent distinction in the application of the rule between cases where steam-power is employed and those eases where the road is operated by horse-power." Judge Dillon, in his excellent work on Municipal Cor- porations, vol. 2, § 577, says : " Where the fee of the street is in the municipalitj' in trust for the public, or in the public, the control of the legislature is supreme, and it may authorize or delegate to municipal bodies the power to authorize either class of railways to occupy streets without providing for compensation either to the municipality or to the adjoining lot-owners." In Cooley's Constitutional Limitations, 555, the learned author, speaking of the appropriation of the street to the use of all kinds of railroads, says : " A strong inclination is apparent to hold that, when the fee in the public way is taken from the former owner, it is taken for any public use whatever to which the public authorities, with the legislative assent, may see fit afterward to devote it in furtherance of the general purpose of the original appropriation, and if this is so, the owner must be held to be compensated at the time of the original taking for any such possible use ; and he takes his chances of that use or any change in it proving beneficial or deleterious to any remaining property he may own or business he may be engaged in," and " when land is taken or dedicated for a town street it is un- questionably appropriated for all the ordinary purposes of a town street, not merely the purposes to which such streets were formerly applied, but those demanded by new improvements and new wants." I think I have now sufficiently demonstrated that the legislature may authorize a surface railway operated by any motive-power to be con- structed in public streets, and that when the abutting owners do not own the fee of the streets they cannot claim any compensation for any inconvenience or injury caused them in the construction and operation of the railway, provided the street still remains open and practicable for the ordinary use of the public ; and I am entirely unable to see why the reasoning and authorities which lead to this conclusion do not lead to the further conclusion that railways operated above the surface of the street may be authorized upon the same terms. An elevated rail- way is only a new mode of using the streets for the transportation of persons and property. It is not a change or subversion of the use for 1110 STOEY V. NEW YOKE ELEVATED RAILROAD 00. [CHAP. VI. which the streets were originally opened and laid. The time came when the increasing business and population of the city of New York made the surface railroads a necessity. The time has now come when the convenience and the wants of a vast city make this new mode of travel and transportation, if not a necessitj-, at least a great conven- ience ; and the devotion of the streets to the use of the elevated rail- ways was only in furtherance of the trust and purpose for which the soil of the streets was originally dedicated or taken. If the surface railways were raised up fifteen feet in the streets and used for the same purpose for which they are now used, coifld not an Act of the Legisla- ture make them lawful structures without compensation to the abutting owners ? As relates to the question of legislative power, what differ- ence could it make whether a railway' remained upon the surface or was raised up? Are the elevated railways unlawful elevated fifteen feet above the surface of the streets, while they would be lawful lowered to the surface of the streets? The legislature in regulating any street could build an embankment fifteen feet high and then authorize a surface railroad to be built upon that, to be operated by any motive power, and the noise and dust and interruption of air and light, and disturbance of privaC}' might be much greater than is caused by an elevated railway. Instead of building an embankment and thus raising the street, the legislature could authorize the whole travel of the street to be carried above the surface upon an elevated road by all the vehi- cles used for the transportation of persons and property, and the abut- ting owners could have no legal or constitutional ground of complaint. This is so because the fee which the city owns in its streets extends indefinitely upward and downward, and the space above as well as the space below a street may be utilized for street purposes. I have not claimed that the legislature could, without compensation to abutting owners, authorize a street in the city of New York to be absolutely closed or wholly and exclusively appropriated to the use of a railroad. There are authorities which would tend to uphold such a claim. I do not aflSrra or deny the validity of such a claim. I leave the question of the right to exercise that more extensive legislative authority under the Constitution to be determined in some future case wherein it shall be involved. It is sufficient to determine now that the legislature maj' constitutionally, without compensation to abutting owners, devote the streets of a great citj- to any use which is not in- consistent with the use for which they were opened or dedicated. Front Street, adjoining the plaintiff's lot, is not closed by this elevated railway, but it remains an open public street; The finding of the court is that it "will cause no substantial or material impediment to the passage of persons, animals, or vehicles in and along the street, and but slight obstruction to the light or air from the street." We must take this case as the trial court has found it and not assume a case such as the imagination can paint. The stream of traffic and travel with no material diminution can flow through Front Street as freely as CHAP. VI. j STOEY V. NKW YORK ELEVATED RAILROAD CO. 1111 before the construction of the railwa3\ If it be a question of fact whether the street is in some sense closed by the defendant's structure, then the trial court must be deemed to have foi^nd the fact in favor of the defendant. A steam railway operated upon the surface of one of the streets in the city of New York would probably be much more damaging than an elevated railway, and yet, as I have shown, it could undoubtedly be authorized without compensation to abutting owners ; and it is impossi- ble for me to perceive upon what reasoning or theory it can be claimed, that abutting owners who have no rights upon the surface of a street for which they can claim compensation, yet have such rights when the railway is elevated above the surface. They have no easement upon or over the surface which cannot be interfered with and greatly impaired under legislative authority without compensation, and yet it is claimed that the}' have an easement somewhere up in the air which is under the constitutional protection as private prpperty. Where do these aerial rights come from ? They do not rest upon any grant, and as the doc- trine of ancient lights has no footing in this countr}-, they cannot rest upon prescription. Buildings may be erected upon a street so high and in such a way as to shut out light and air from an adjoining building. They may be erected so as to cast their shadows across the street upon houses there standing and yet no right or easement is invaded. It can- not be doubted that the legislature could authorize surface railways to be operated with double-decked cars fifteen feet high and thus cause nearlj' all the inconvenience to the abutting owners of an elevated rail- way', and yet it must be conceded that under the authorities the abut- ting owners would have no legal cause of complaint. Light and air are mere incidents and accidents of a street. Streets are not constructed and maintained to furnish them. They come from a street because the street exists, and when the street disappears it is difficult to perceive how any right to them in an abutting owner sur- vives. But as I have before said, it is sufficient now to determine that if there can be any such thing in a street as an easement for light and air, it is subordinate to all the uses and burdens to which a street may be subjected by the paramount authority of the legislature. I am led to this conclusion by principles fairly to be deduced from decided eases which are binding upon this court as authority. I cannot perceive how this case can be determined in favor of the plaintiff with- out substantially overruling the cases of The People v. Kerr, and Kellinger v. The Street Mailway Co. In The Matter of the Gilbert Mevated Bailway Co. (70 N. Y. 361), Church, Ch. J., said that "the principles adjudicated in these cases will be regarded as obligatory upon this court in deciding future cases." In the case of KelUnger v. The Street Mailway Co., the same learned judge, speaking of the case of The People v. Kerr, said : " We should feel bound to adhere to this decision and its necessary legal results, even if we doubted its soundness, because large sums of money have been expended upon the 1112 STOEY V. NEW YOBK ELEVATED RAILROAD CO. [CHAP. VL faith of it, and in many obvious ways it has become a rule of property' which should never be abrogated, except for the most cogent reasons." And more than four hundred years before these utterances a learned English judge said : " If we judge against former judgments it is a bad example to the barristers and students of law ; they will not have any faith in or give any credit to their books." (Year Book, 33 Hen. VI. 41.) It is sufficient to say of the Elevated Railway cases reported in 70 N. Y., that the questions we are to determine in this case were not there involved. It was there determined that provision was made in the Rapid Transit Acts for compensation for anj- rights of private property which the abutting owners had in the streets of the city. But whether they had such rights or not was intentionally and expressly left an open question. The plaintifif and many other abutters upon the streets through which this elevated railway is constructed undoubtedly suffer great damage from its operation and have the right to complain of the injustice done them ; but they must seek their remedy by appealing, not to the courts, but to the legislature, and if they fail there, by appealing to the people who make legislatures. That is the final appeal open to every citizen who suffers injustice under the forms of the Constitution and the laws. The legislature undoubtedly has ample power to compel the defendant yet to make compensation to abutting owners for all . the damage done them, and arrest the exercise of its franchise, if it shall refuse to make such compensation. (Monongahela Nbm. Co. v. Coon, 6 Penn. St. 379.) The power which it possesses under the Constitution and the laws to alter or repeal the charters of corporations includes the abso- lute right to regulate the exercise of corporate franchises, and to pre- scribe the terms and conditions upon which they may continue to be exercised. (Albany Northern Railroad Co. v. BrowneU, 24 N. Y. 345.) T will close this discussion by quoting the language of a verj' learned jurist in Hatch v. The Vermont Central Hailroad Co. : "In the absence of all statutory provision to that effect, no case and certainly no principle seems to justify the subjecting a person, natural or artifi- cial, in the prudent pursuit of his own lawful business, to the payment of consequential damage to others in their property or business. This always happens more or less in all rival pursuits, and often where there is nothing of that kind. One mill or one store or school often injures another. One's dwelling is undermined or its lights darkened or its prospect obscured and thus materially lessened in value by the erection of other buildings upon lands of other proprietors. One is beset with noise or dust or other inconvenience by the alteration of a street, or more especially bj' the introduction of a railway, but there is no redress in any of these cases. The thing is lawful in the railroad as much as in the other cases supposed. These public works come too near some and too remote from others. They benefit many and injure CHAP. VI.] STORY V. NEW YORK ELEVATED RAILROAD CO. 1113 some. It is not possible to equalize the advantages and disadvantages. It is so with everything and always will be. Those most skilled in these matters, even empirics of the most sanguine pretensions, soon find their philosophy at fault in all attempts at equalizing the ills of life. The advantages and disadvantages of a single railway could not be satisfactorilj' balanced by all the courts of the State in forty years ; hence they must be left, as all other consequential damage and gain are left, to balance and counterbalance themselves as they best can." The judgment should be affirmed: For reversal, Andrews, Ch. J., Eapallo, Danforth, and Tracy, JJ. For affirmance. Miller, Earl, and Finch, JJ. Judgment reversed. [The opinion of Danforth, J., concurring, and the dissenting opinions of Miller, J., and Finch, J., are omitted. The opinions of Dan- forth, J., and Tract, J., are each entitled by the reporter " Opinion of the court." This title seems to belong, properly, only to the last. They take substantially the same ground, but the former also holds that the plaintiff had the fee of the street.^] ' See Randolph, Em. Dom. ss. 404, 416. Compare Fulton t. Sliort Route Ri/. Co., 85 Ky. 640 (1887). Sperb v. Met. El. Ry. Co., 32 N. E. Rep. 1050 (N. Y. Jany. 1893). In Lahr v. Metrop. Elev. Ry. Co. 104 N. Y. 268 (1887), the court (Rugee, C. J.) said : " This action Is the sequel of the Story case (.Story v. N. Y. El. R. R. Co., 90 N. Y. 122), and its defence seems to have been conducted, upon the theory of securing a re-examination of the questions then decided, and in case that effort should prove fruitless, of limiting and restricting as much as possible, their logical effect. " The endeavor to secure a re-examination of the doctrines of that case must fail, since the decision there made embodied the deliberate judgment of the court, pro- nounced after the most careful and thorough consideration, and after two arguments at the bar, made by most eminent counsel, had apparently exhausted the resources of learning and reason in the discussion of the questions presented. " It wonld be the occasion of great public injury, if a determination thus made could be inconsiderately unsettled and suffered again to become the subject of doubt, and theme of renewed discussion. " The reasons advanced by the able counsel for the appellant to induce us to recon- sider that case, seem to us to be insufficient to render it wise or expedient to do so. The doctrine of the Story case therefore, although pronounced by a divided court, must be considered as stare decisis upon all questions involved therein, and as establishing the law, as well for this court as for the people of the State, whenever similar questions may be litigated. " Wherever, therefore, the principles of that case logically lead us we feel constrained to go, and give full effect to the rule therein stated, that abutters upon public streets in cities are entitled to such damages, as they may have sustained by reason of a diversion of the street, from the use for which it was originally taken, and its illegal appropria- tion to other and inconsistent uses. "The case is not only authority upon the questions which it expressly decides, but also upon all such as logically come within the principles therein determined. " It is therefore unnecessary to enter into a general discussion of those questions, but after restating such propositions as seem to be controlling in this case, we shall simply refer to some alleged distinctions between the present case and the Story case. We hold that the Story case has definitely determined : " First. That an elevated railroad, in the streets of a city, operated by steam-power and constructed as to form, equipments, and dimensions like that described in the 1114 STOEY V. NEW YORK ELEVATED RAILROAD CO. [CHAP. VL Story case, is a perversion of the use of the street from the purposes originally designed for it, and is a use which neither the city authorities nor the legislature can legalize or sanction, without providing compensation for the injury inflicted upon the property of abutting owners. " Second, That abutters upon a public street claiming title to their premises by grant from the municipal authorities, which contains a covenant that a street to be laid out in front of such property, shall forever thereafter continue for the free and common passage of, and as public streets and ways for the inhabitants of said city, and all others passing and returning through or by the same, in like manner as the other streets of the same city now are or lawfully ought to be, acquire an easement-in the bed of the street for ingress and egress to and from their premises, and also for the free and uninterrupted passage and circulation of light and air through and over such street for the benefit of property situated thereon. " Third. That the ownership of such easement is an interest in real estate, constitu- ting property within the meaning of that term, as used in the Constitution of the State, and requires compensation to be made therefor, before it can lawfully be taken from its owner, for public use. " Fourth. That the erection of an elevated railroad, the use of which is intended to be permanent, in a public street, and upon which cars are propelled by steam-engines, generating gas, steam, and smoke, and distributing iu the air cinders, dust, ashes, and other noxious and deleterious substances, and interrupting the free passage of light and air to and from adjoining premises, constitutes a taking of the easement, and its appropriation by the railroad corporation, rendering it liable to the abutters for the damages occasioned by such taking. " The jury in this case, under the instructions of the court, have found, upon evidence which justifies the finding, that the structure of the defendant iu Amity Street, in connection with the running of cars thereon, propelled by steam engines with the con- sequences naturally flowing therefrom, constitutes an employment of the street for purposes not originally designed and a perversion of its use, from legitimate street purposes. . . . " The logical effect of the decision iu the Story case is to so construe the Constitu- tion, as to operate as a restriction upon the legislative power over the public streets opened under the Act of 1813, and confine its exercise to such legislation, as shall authorize their use for street purposes alone. Whenever any other use is attempted to be authorized, it exceeds its constitutional authority. Statutes relating to public streets which attempt to authorize their use for additional street uses, are obviously within the power of the legislature to enact, but questions arising under such legisla- tion are inapplicable to the questions here involved. " Such are the cases in respect to changes of grade ; the use of a street for a surface horse railroad ; the laying of sewers, gas, and water pipes beneath the soil ; the erection of streets lamps and hitching posts, and of poles for electric lights used for street lighting. All of these relate to street uses sanctioned as such by their obvious pur- pose, and long continued usage, and authorized by the appropriation of land for a public street. . . . " But a single question of any importance remains to be discussed, and that refers to the claim made, that the defendant is not liable for the operation of its trains, and the consequences flowing therefrom, in respect to the manufacture and distribution in tlie air of gas, smoke, steam, dust, cinders, ashes, and other unwholesome and deleterious substances from its locomotives and trains, as they move to and fro over its tracks. " We have been unable to see any reason why the defendant should not be liable for the injury thus occasioned, provided the evidence established the fact that they were destructive of the easements of light, air, and access belonging to the plaintiff: " It follows necessarily from the proposition that a permanent structure erected in a street, interrupting to any considerable extent the passage of light and air to adjacent premises, works the destruction of easements for such purposes ; that any incident of the structure which necessarily increases and aggravates the injury must be subject to the same rule of damage. CHAP. VI.] STORY V. NEW YORK ELEVATED RAILROAD CO. 1115 " No partial justification of the damages inflicted by an unlawful structure, and its unlawful use, can be predicated upon the circumstance, that uuder other conditions and through a lawful exercise of authority, some of the consequences complained of, might have been produced without rendering their perpetrator liable for damages. " The structure here, and its intended use, cannot be separated and dissected, and it must be regarded in its entirety in considering the effect which it produces upon tlie property of the abutter. However the damage may be inflicted, provided it be effected by an unlawful use of the street, it constitutes a trespass rendering the wrong-doer liable for the consequences of his acts. " The legislature, as we have seen, had no power to authorize the street to be used for an elevated steam railroad, and that want of authority extends to every incident necessary to make the road an operative elevated steam railroad, which occasions in- jury to the rights of abutters on the street. ( Bait. ^ Pot. R. R. Co. v. Fifth Bap. Ch., 108 U. S. 317, 329.) . . . " Andrews and Danfoeth, JJ., concur. Kapallo, J., took no part. Eael and Finch, JJ., concur iu result, handing down the following memorandum ; " Earl and Jj'inch, JJ., not being able to concur in all the views expressed in the foregoing opinion, concur in the result on the authority of the Story case (90 N. Y. 122) ; deeming it necessary to add that, while they are unwilling to extend the scope of the decision in that case beyond its fair import, yet iu their opinion it gives to abutting owners only damages for the construction and operation of the railway in front of their premises, resulting from the taking or destruction of their street ease- ments of light, air, and access, and for such damages to their adjoining property as are necessarily caused by such taking and destruction ; that the abutters cannot recover damages to or upon their abutting property caused by the lawful operation of the road, and not by the deprivation or destruction of their easements in the street ; that there can be no recovery for any thing done by the railway in the street except as it deprives, or tends to deprive, the abutters of the easements mentioned, and that they believe these principles were not violated upon the trial of this action. Judgment affirmed." In Fobes v. The Rome, Watertown, ^ Ogd. R. R. Co., 121 N. Y. 505 (1890) the plaintiff, as owner of real estate in Syracuse bounded by the side line of Franklin Street, brought an action to restrain the defendant from interference with, and occupar tion of, his easement of light, air, and access in and to that street, by the maintenance and operation of its steam railway therein, and to recover past damages suffered by him from such maintenance and operation. In reversing a judgment below in favor of the plaintiff, the court (Pbckham, J.) after citing Drake v. Hudson Riv. R. R. Co., 7 Barb. 508, Williams v. N. Y. C. R. R. Co., 16 N. Y. 97, Wager v. T. U. R. R. Co., 25 N. Y. 526, and People v. Kerr, 27 N. Y. 188, said: "I think there is no authority in this court which holds that there is any difference between a railroad operated by horse-power and one operated by the power of steam in the streets of a city. If the legislature can authorize the one, it can, under the same circumstances, authorize the other. I refer to railroads on the same grade as the street itself, and where the chief difference lies in the different motive-powers which are used. " In Craig v. R. R. C. Sf B. R. Co. (39 N. Y. 404), it was held that the owner of a lot on a street, who owned the fee thereof subject only to the public easement for a street, was entitled to compensation for the new and additional burden upon the land so used as a street, by the erection of even a horse railroad thereon. In this case. Judge Miller said he saw no distinction in the application of the rule between cases of steam and cases of horse-power. "In Kellinger v. F. S. S. Sr G. S. F. R. R. Co. (50 N. Y. 206), it was held that one who did not own the fee of the street, could not recover damages for inconvenience of access to his adjoining lands caused by the lawful erection of a street railroad through the street. "By these last two decisions, it is seen, that to construct even a horse railroad in a ; city street, is to place a new and additional burden upon the land, the right to do 1116 STORY V. NEW YORK ELEVATED RAILROAD CO. [CHAP. VI. which does not exist hy reason of the general right of passage through the street, hut if the adjoining owner of land is not the owner of the fee in the street, and the rail- road company lias obtained the proper authority, he has no right to compensation for such added burden, uor to complain of such use so long as it is not exclusive or exces- sive. The same reasoning applies, aa we have seen, in the case of a steam surface railroad. Such a use of the streets would he an additional burden upon the land, and of course, if the adjoining owner had title in fee to the centre of the street, subject only to the public easement, he would have a right of action, as held by the Williams and other cases, while if he did not, no such right would exist in his favor merely because it was a steam instead of a horse railroad which was to be constructed. The authority of the law and the consent of the city would be enough to authorize the building of either, and the difference between the §team and the horse railroad would not be one of such a nature as to require or permit any difference in the decision of the two cases. If the use of either became unreasonable, excessive, or exclusive, or such as would not leave the passage of the street substantially free and unobstructed, then such excessive, improper, or unreasonable use would be enjoined, and the adjoin- ing owner would be entitled to recover damages sustained by him therefrom, in his means of access, etc., to his land. Mahady v. B. E. R. Co., (91 N. Y. 149). In Washington Cemeteri/ v. P. P. #• C. /. R. R. Co. (68 N. Y. 591, at 593), Andrews, J., assumes the right of the legislature to authorize the construction of a railroad on a street without exacting compensation from the corporation authorized to construct it, to the owners of adjoining land, provided such owners did not own the fee in the street. The statute in the case cited permitted the use of steam on some portion of this road, so that Judge Andrews' remarks were not confined to horse railroads. " Assuming tha;t the plaintiff had no title whatever to the land in the street through which the defendant laid its rails and ran its trains under legislative and municipal authority, I think it clear that prior to the decision of this court in the Story case (90 N. Y. 122) he had no cause of action against the defendant based upon auy alleged taking of the plaintiff's property or easement by defendant. If its user of the street became excessive or exclusive, and hence degenerated into a nuisance, the plaintiff had another remedy. The claim is now made that the Story case (supra), and those cases which followed and are founded upon it, so far altered the law as to permit a recovery in all cases where the easement of the adjoining lot-owner, through the build- ing and operation of the road, is injuriously affected by any deprivation or diminution of light, air, or access to his lot, even though he do not own the fee to the centre of the street; and, where such injury occurs, it is claimed that the property of '..he owner in his easement of light, air, or access has been taken to a greater or less extent, and compensation is guaranteed to him therefore by the Constitution. " It was not intended in the Story case to overrule or change the law in regard to steam surface railroads. The case embodied the application of what was regarded as well established principles of law to a new combination of facts, such facts amount- ing, as was determined, to an absolute and permanent obstruction in a portion of the public street, and in a total and exclusive use of such portion by the defendant, and such permanent obstruction and total and exclusive use, it was further held, amounted to a taking of some portion of the plaintiff's easement in the street for the purpose of furnishing light, air, and access to his adjoining lot. This absolute and permanent obstruction of the street, and this total and exclusive use of a portion thereof by the defendant were accomplished by the erection of a structure for the elevated railroad of defendant, which structure is fully described in the case as reported. The structure, by the mere fact of its existence in the street, permanently and at every moment of the day took away from the plaintiff some portion of the light and air which other- wise would have reached him, and in a degree very appreciable, interfered with and took away from him his facility of access to his lot ; such interference not being inter- mittent and caused by the temporary use of the street by the passage of the vehicles of the defendant while it was operating its road through the street, but caused by the iron posts and by the superstructure imposed thereon, and existing for every moment of the day and night. Such a permanent, total, exclusive, and absolute appropriation of a portion of the street as this structure amounted to, was held to be illegal and CHAP. VI. J STORY V. NEW YORK ELEVATED RA.ILROAD CO. _ 1117 wholly beyond any legitimate or lawful use of a public street. The taking of the property of the plaintiff in that case was held to follow upon the permanent and exclu- sive nature of the appropriation by the defendant of the public street or of some por- tion thereof. If that appropriation had been held legal, any merely consequential damage to the owner of the adjoining lot, not having any title to the street, would have furnished no ground for an action against the defendant. It was just at this point that the disagreement existed between the members of this court in the Story case. The judge who wrote one of the dissenting opinions did not think that the facts presented any different principle from that of an ordinary steam surface railroad operating its road through the streets of a city under the authority of the legislature and of the municipality, in a case where the adjoining lot owner did not own the fee in the street. The character of the structure, and all the facts incident thereto, were regarded by him as simply resulting in aa additional burden upon the street, some- what greater in degree it is true than a steam surface railroad, but still it was such a use of the street as the legislature might permit, and the legislature having in fact granted it such power, the use of the street was, therefore, legal, and the defendant was not responsible for the incidental damage resulting to one whose property was not in fact taken within the meaning of the constitutional provision, and the defendant did him, therefore, no actionable injury. The other dissenting judges were of the same opinion. " A majority of the court, however, saw in the facts existing In that case what was regarded as a plain, palpable, and permanent misappropriation of the street, or some portion of it, to the exclusive use of the defendant corporation, and as resulting from it the court held that there was a taking of property belonging to the plaintiff with- out compensation, which no legislature could authorize or legalize. But this taking, it cannot be too frequently or strongly asserted, resulted from the absolute, exclusive, and permanent character of the appropriation of the street by the structure of the defendant. There is no liint in either of the prevailing opinions In the Story case of any intention to interfere with or overrule the prior adjudications in this State upon the subject now under discussion, as to the steam surface railroad^. In the Story case it was argued that no real distinction in principle existed between a steam surface and an elevated railroad resting on such a structure aa was proved in that case. This court, however, made the distinction, and the two prevailing opinions are largely taken up with arguments going to show the distinction was obvious, material, and Important, and was so real and tangible in fact as to call for a different judgment than would have been proper and appropriate in the case of the ordinary steam surface railroad such as the Drake case was. "Judge Tracy, in the Story case, said that the conclusion therein reached was based upon the character of the structure, and that the language of Judge Wright in the Kerr case (supra), where he asserted that the abutting owners had no property or estate in the land forming the bed of the street in front of their premises, must be construed with reference to the point then considered. In another portion of his opin- ion Judge Tracy said that no structure upon the street can be authorized which is inconsistent with the continued use of the street as a public street He also added that, whatever force the argument may have as applied to railroads built upon the surface of the street, without change of grade, and where the road is so constructed that the public is not excluded from any part of the street, it has no force when applied to a structure like that authorized in the present case. This, he says, Is an attempt to appropriate the street to a use essentially inconsistent with that of a public street, and hence illegal. He does not pretend that the ordinary steam railroad, laid on the same grade as the street, and not excluding others from its use, appropriates the street to a use essentially or at all inconsistent with that of a public street. The use may be an additional burden laid upon the street, but nevertheless it Is such a use as is entirely consistent with Its continued use as a public street. " Judge Danforth In his opinion, views the structure in much the same light. He cites the case of Corning v. Lowerre (6 Johns. Ch, 439), where Chancellor Kent re- strained the defendant by injunction from obstructing Vesey Street in New York city by building a house thereon, and he says that the railroad structure designed by the 1118, STORY V. NEW YORK ELEVATED RAILROAD 00. [CHAP. VL defendant for the street opposite the plaintiff's premises is liable to the same objec- tion, that is, it is as permanent in its character and exclnsive in its possession of that portion of the street, as was the defendant's building in the case cited. He further says that the street railway cases are in no respect in conflict with the doctrine announced in his opinion. Other citations might be made from both opinions of those most learned and able judges, but enough has been shown to enable us to say with entire correctness that there was no intention in deciding the Story case to reverse or overrule the cases in regard to steam surface railroads which have been already cited. Those cases include just such a case as is the one at bar. " Following the Story comes the Lahr case (104 N. Y. 268), and the principles decided in the former were reiterated in the latter case. It is difficult to see that any enlarged rule as to awarding damages in that class of cases has been definitely announced in the Lahr case. The general rule to be adopted was agreed upon by the parties and involved an award once for all. The particular damage which the defendant was liable for, growing out of the existence of the defendant's structure, was held by three of the five members of the court then voting to embrace such an injury or inconvenience as was incidental to the use thereof. Two of the five members were in favor of a more restricted rule, and they agreed simply in tlie result which affirmed the judgment of the court below. "Then came the Drucker case (106 N. Y. 157), and in it the principle was announced, as stated in the head note, that in awarding damages it was proper to prove and take into consideration as elements of damages the impairment of plaintiff's easement of light caused by the road itself, and passage of trains, and the interference with the convenience of access caused by the drippings of oil and water. This was held as a fair result from a holding that the structure was an illegal one, and to the extent above described the court held the plaintiff entitled to an award of damages. But the foun dation for the recovery in all the cases above cited, of any damages whatever, lies in the fact of the illegality of the structure. " Looking carefully over the cases involving the elevated railroads and their rights and liabilities, we c9.nnot see that any new rule was adopted in any of those cases which would hold the defendant herein liable under the facts proved, for the taking of any property or any portion of an easement belonging to the plaintiff. On the con- trary we think the plaintiff's case is still governed by the case of Drake and the other cases in this court which have already been cited, and in which the principle decided in the Drake case has been assented to and affirmed. Upon such facts it has been held that there was no taking of any property or easement of an adjoining owner who had no title to any portion of the land upon which the street was laid out, where the company was authorized by law and licensed by the city to use the street." In Pond V. The Metrop. Elev. Ry. Co. 112 N Y. 186 (1889) the court (Andrews, J.) said "The Story case (90 N. Y. 122) established the principle that an abutting owner on streets in the city of New York, possesses, as incident to such ownership, easements of light, air, and access in and from the adjacent streets, for the benefit of his abutting lands, and that the appurtenant easements and outlying rights constitute private property of which he cannot be deprived without compensation. That was an equity action and the court having reached the conclusion that the defendant's structure was an unlawful invasion of the plaintiff's easements, granted an injunction, postponing its actual issuance, however, until after such reasonable time as would enable the defendant to acquire the plaintiff's right by voluntary agreement or compulsory pro- ceedings. The Story case did not determine any rule of damages. But in Uline v. N. Y. C. ^ H. R. R. R. Co. (101 N. Y. 98), the general question as to the scope of the remedy in an ordinary legal action for damages sustained by an abutting owner from the construction of a railway in the street fronting his premises, without his consent and in violation of his rights, was elaborately considered, and it was determined that in such an action the plaintiff could recover temporary damages only ; that is, such dam- ages as had been sustained up to the commencement of the action, and the judgment below which allowed damages measured by the permanent depreciation in the value of the plaintiff's lots upon the assumption that the trespass and wrong would be con- CHAP. VI.] REINING V. NEW YORK, LACKAWANNA, ETC. RY. 1119 In Jieining v. The New York, Lackawanna, and Western By. Co., 128 N. Y. 157 (1891), the court (Andrews, J.) said: "The principal question in this case respects the rights of the plaintiffs as abutting owners, to recover damages occasioned by the construction of the defendant's road in Water Street in the citj- of Buffalo. The plaintiffs' premises are situated on the northerly side of Water Street, and are tinned, was reversed. The case of Lahr t. Met. El. R. Co. (104 N. Y. 270), was an action lilie the present one, brought by an abutting owner for damages in wln'cb the plaintiff recovered the permanent depreciation in valne of his premises by reason of the constrnctiou and operation of the defendant's road, on the theory that the appro, priation and invasion of the plaintiff's easement was final and complete. This court affirmed the judgment, stating in its opinion that the case was taken out of the opera- tion of the XJline case {supra), for the reason that the record disclosed that the parties had agreed upon the rule of damages. The plain inference is, that except for this, the doctrine of the Uline case would have controlled and the objection to the measure of damages would have prevailed. The case of New York National Bank v. Metro- politan Elevated Railwat/ Company (108 N. Y. 660), is a still more explicit recognition by this court of the application of the doctrine of the Uline case to actions lilie this. That was an equitable action, brought by an abutting owner, and was sustained. The plaintiff was awarded judgment for past loss of rentals, and an injunction was granted restraining the further operation and maintenance of the road, unless the defendants paid a certain sum equal to the amount of depreciation in the value of the property, as for a permanent appropriation. There was no ground for maintain- iifg the action for equitable relief upon any circumstances disclosed in the complaint, provided the plaintiff could have recovered permanent and complete damages, as for an actual taking of his easement, in a legal action. We think these cases have settled the rule that permanent depreciation cannot be recovered in, an action like this. It is understood that this has been the interpretation of our decisions upon which the courts below have acted in many cases. It might be productive of less inconvenience, on the whole, if an opposite rule could be adopted. But the rule established is consistent with legal principles. A recovery of judgment for damages for a trespass or the in- vasion of an easement does not operate to transfer the title of the property to the defendant, either before or after satisfaction, nor does it extinguish the easement. By the ordinary rule it is an indemnity for a past wrong, leaving unaffected the plaintiff's *right to his property. When he comes to the court for equitable relief, the court may mould it to suit the circumstances, as was done' in Henderson v. N. Y. C. R. R. Co. (78 N. Y. 423). The present case was an action for damages simply. The plaintiff neither in his complaint nor on the trial asked for equitable relief. " We think the judgment should be reversed and a new trial granted. All concur. Judgment rever.sed." "The law of the State of New York as declared by the Court of Appeals, appears to te as follows : An elevated railroad erected in and over a street pursuant to the statutes of the State, and with due compensation to the owners of property taken for the purpose, is a lawful structure. The owners of lands abutting on a street in the city of New York have an easement of way, and of light and air, over it ; and through a bill in equity for an injunction, may recover of the elevated railroad company full compensation for the permanent injury to this easement ; but, in an action at law, can- not, without the defendant's acquiescence, recover permanent damages, measured by the diminution in value of their property, but can recover such temporary damages only as they have sustained to the time of commencing the action. [Citing cases.] This rule of damages at law has not prevailed in analogous cases decided in other jurisdictions, and collected in the briefs of counsel ; and in the case last above cited the court observed that ' it might be productive of less inconvenience on the whole, if an opposite rule could be adopted.' 112 N. Y. 190." Gray, J. for the court, in N. Y. Elev. R. R. V. Fifth Nat. Bk., 135 U. S. 432, 440 (1889). —Ed. 1120 REINING V. NEW YORK, LACKAWANNA, ETC. RY. [CHAP. VI. bounded easterly by Commercial Street, westerly by Maiden Lane, and southerly by Water Street, and occupying the whole lot is a four-story brick building used as a store and residence, constructed before the rail- road was placed in Water Street. Water Street runs easterly and westerly, and has existed for more than forty years. Up to 1875, the plaintiffs owned the fee to the centre of the street opposite their prem- ises, subject to the public easement. In that j'ear proceedings were taken b^- the city of Buffalo to acquire the title to a large number of streets in Buffalo, including Water Street, by condemnation, and resulted in the city acquiring the title, up6n payment of a uniform and nominal award of five cents damages to each of several hundred owners of lots on the streets taken including the plaintiffs. " In 1882, the Common Council of the city of Buffalo by ordinance granted to the defendant the right to construct and maintain two rail- road tracks ' along Prince Street to a point midway between Hanover Street and Lloyd Street, thence across Lloj'd Street at such grade as will permit said company with a practical construction to cross Com- mercial Street at the height fixed by the State engineer; thence to and along the centre of Water Street to the docks of the Delaware, Lacka- wanna, and Western Eailroad Company at the foot of Erie Street.' Commercial Slip is a part of the Erie Canal and separates Prince Strset and Water Street, and together thej- form a continuous street except as it is interrupted bj- Commercial Slip. The defendant, in pursuance of the permission of the Common Council, and in accordance with the map and profile approved by the council, and under the direction of the city engineer, proceeded to raise the grade on Prince Street so as to enable the companjf to cross Commercial Slip by a bridge fourteen feet above the water line, the height fixed bj' the State engineer, and to meet this grade of the bridge constructed an embankment in the centre of Water Street from the bridge easterly for the distance of 300 feet, passing the plaintiffs' premises. Water Street is sixty-six feet wide. The side- walk on the Water Street side of the plaintiffs' lot occupies fourteen feet. The embankment of the defendant is twentj'-four feet wide, and at the junction of Water and Commercial streets (at the corner of which is the plaintiffs' lot), it is five feet nine inches high, and from that point descends westerly bj' a gradual descent passing the plain- tiffs' lot and across Maiden Lane and reaches the original level of tiie street nearly 300 feet west of the corner of Commercial and Water streets. The embankment is supported laterally bj- solid, perpendicular stone walls, which extend along Water Street in front of the plaintiffs' lot and across the entrance of Maiden Lane. Between the perpendicu- lar stone wall on the northerly side of the embankment and the side- walk in front of the plaintiffs' building is a space eight to nine feet wide, which is the on I3'. carriage-way left on the Water Street side of the plaintiffs' premises. Commercial Street extends northerlj' and southerly from Main Street to Buffalo harbor. The raising of the embankment in Water Street rendered it necessary to make an embank- CHAP. VI.J EEINING V. NEW ¥OKK, LACKAWANNA, ETC. BY. 1121 ment in Commercial Street to meet the grade of tlie railroad, and this was done by the defendant. The defendant paved the surface of the twenty-four feet strip in Water Street occupied by its embankment, and laid thereon part of the way one track, and part of the way two tracks for the accommodation of its business. Carriages or teams can- not cross Water Street in front of plaintiffs' premises. This is pre- vented by the embankment. Access to their premises on the Water Street side from Commercial Street south of Water Street is also pre- vented except by first crossing Water Street, and then passing along the embankment on Commercial Street 130 feet, and then turning into the rbad-way on Commercial Street between the embankment in that street and the sidewalk, and thence into Water Street, or else, when reaching the junction of Commercial and Water streets by turning west and driving down the embankment along the railroad tracks about 300 feet to the end of the grade, and then turning and going easterly along the narrow roadway eight or nine feet wide on the northerly side of the embankment. This space is not sufficient to allow wagons to pass each other, nor can a single wagon with horses be turned around in this space except with difficulty. "It was conceded that the plaintiffs, up to the time of the trial, had sustained damages in the diminished rental value of their premises by reason of the embankment in the sum of $525, for which sum a verdict was rendered, and no question now arises as to the rule of damages or the amount, provided, upon the facts, damages are legally recoverable. . . . [Here follows a statement of the defendant's position and of Fobesy. B. W. & 0. R. R. Co., 121 N. Y. 505 {ante, p. 1115).] " It is no longer open to debate in this State that owners of lots abut- ting on a city street, the fee of which is in the municipality for street uses, although they have no title to the soil, are nevertheless entitled to the benefit of the street in front of their premises for access and other purposes, of which they cannot be deprived except upon compensation. The right of abutting owners in the streets is not, however, of that absolute character that they can resist or prevent any and all interfer- ence with the street to their detriment, or which can be asserted to stay the hand of the municipality in the control, regulation, or improve- ment of the streets in the public interest, although it may be made to appear that the privileges which they had theretofore enjoyed, and the benefits they had derived from the street in its existing condition, would be curtailed or impaired to their injury by the changes proposed. " The cases of change of grade furnish apposite illustrations. They proceed on the ground that individual interests in streets are subordi- nate to public interests, and that a lot owner, although he may have built upon and improved his property with a view to the existing and established grade of the street, and relying upon its continuance, has no legal redress for any injury to his property, however serious, caused by a change of grade, provided only that the change is made under lawful authority." This, it is held, is not a taking of the abutting owner's prop- voL. r. — 71 1122 REINING V. NEW YORK, LACKAWANNA, ETC. KY. [CHAP. TL erty, and the injury requires no compensation. The hardships arising from the application of this rule of law has led to constitutional amend- ments in many of the States, providing for compensation for property damaged as well as taken in the prosecution of public improvements. The general rule in this State is unchanged, but the Act, chap. 113 of the Laws of 1883, and provisions in some city charters, afford similar relief in certain cases. But that there is a limitation to public powers over the streets of a city, which cannot be transgressed without invad- ing the constitutional rights of abutting owners, was a principle announced in the Story case (90 N. Y. 122), and confirmed and broad- ened so as to apply to other circumstances in the subsequent cases. The elevated railroad structure, the subject of complaint in the Story case, occupied with its supports and stairwaj-s portions of the street, and such occupation was necessarily exclusive, and this fact was prom- inently brought into view in the opinions delivered. The parts of the street so occupied could not be used for general street purposes. This fact, it is claimed, distinguishes the present case from that, and it is in- sisted, that this case is more nearly allied to the Fobes case than to that of Storj'. It is true that the part of the street occupied bj' the embank- ment of the defendant is still a part of Water Street. It is also true that the occupation of the embankment by the tracks of the defendant was . not necessarily exclusive, that is to say, it is possible for ordinary vehi- cles to traverse the embankment longitudinall}', but such travel would subject the traveller to the risk of meeting railwa}' trains on the narrow causewaj', and he would have no opportunitj- to turn off the embank- ment, except by driving over the perpendicular wall which supports it. The plaintiffs are practicallj' excluded from the use of that portion of the street by the presence of the railroad there. Thej- and their cus- tomers cannot drive across it, and if they had the temeritj' to drive along it, nevertheless the3' would be compelled to make a long circuit to reach the plaintiffs' premises from the streets south of the embank- ment. The only practicable roadwaj' in front on Water Street is but a few feet in width, quite insufficient for a safe and convenient waj' to and from their lot. " We think the public cannot justly demand such a sacrifice of private interests, or justifj' such an appropriation of a street bj' a municipality' in aid of a railroad enterprise. The Fobes case gives no countenance to the defendant's contention. The limitations upon legislative and municipal authority, so carefully stated in the passages quoted from the opinion, are distinctly opposed to such an assumption. That case, and those of Kerr and Kellinger, were cases of railroad tracks laid upon the general grade of city streets, as such grade existed when the tracks were authorized. There was no exclusive appropriation in fact of any portion of the surface by the companies, except that the rails were embedded in the soil. The whole street in each of these cases remained opened and unobstructed, except that the existence of the tracks and the operation of the respective roads thereon rendered CHAP. VI. J REINING V. NEW YORK, LACKAWANNA, ETC. RY. 1123 access to the lots of the abutting owners somewhat less safe and con- venient than before. Here, as the evidence tends to show, the city of Buffalo, for the convenience and presumably upon the application of the defendant, devoted the centre of Water Street to what is practi- cally the exclusive use of the defendant, leaving for the use of the plaintiffs a narrow and inconvenient roadway, separated from the cen- tre of the street by a barrier therein, impassable for carriages from north to south, opposite the plaintiffs' lot on Water Street, and only theoretically open from east to west, and then only by a circuitous route. It is quite probable that the general interests of Buffalo and of the larger public are promoted by this appropriation of the street, but it by no means follows that a lot-owner whose property is injured should bear the loss for the public benefit. We think the case falls within the principle of the Storj' case, and that while the law now is that it is competent for the legislature to authorize railroad tracks, either for steam or horse railroads, to be laid on the ordinary grade of streets, the fee of which is in the State or municipality, without mailing com- pensation to abutting owners for consequential injuries to their prop- erty, the legislature cannot legalh' authorize structures for railroad purposes to be erected therein for the use and convenience of railroads, which practically exclude the abutting owners from the part of the street so occupied, without compensating them for the injury suffered, and that it is not necessary that there should be an actual physical exclusion of the lot-owners from the use of that part of the street occu- pied by such structures in order to entitle them to a legal remedy. It is enough if such part of the street is practical!}' and substantially closed against them for ordinary street uses. " The power conferred by the charter of Buffalo upon the Common Council to ' permit the track of a railroad to be laid in, along or across any street or public ground' (Laws 1870, chap. 519, tit. 3, § 19), must be construed as subject to the qualification that no property rights of abutting owners are thereby invaded. The present controversy could not have arisen prior to 1875, when the plaintiffs were owners of the fee to the centre of Water Street. They would then, under the settled law, have been entitled to compensation. The city of Buffalo having in that year acquired, for a nominal consideration, the technical fee in the street, proceeded afterwards to authorize the laying of the tracks in question, and it is now claimed that this change in the title defeats the plaintiffs' right to compensation. This is probably true, if what has been done by the defendant under license of the city was sim- ply the laj'ing of its tracks on the surface of the street at its ordinar}' grade, but this was not the character of the change effected. " The second proposition of the counsel of the defendant that the building of the embankment was a mere change of grade of Water Street, made under the authority of the city, is, we think, untenable. The charter of Buffalo gives plenary power to the city to fix and change the grade of streets bj' formal proceedings, and provides that when a 1.124 EEINING V. NEW YORK, LACKAWANNA, ETC. EY. [CHAP. VI. grade is established or altered, a description of such grade shall be made and recorded by the city clerk. (Charter 1870, tit. 9, §§ 1, 2, 6.) The action of the Common Council granting permission to the defendant to occupy Water Street, while it involved, as a consequence, the construction of an embankment in Water Street, did not purport to be an exercise of the power to change the grade of the street under the charter. It does not appear that any description was made or recorded as is required when a new grade is established. It would be a strained construction to regard the action of the council as a change of grade of Water Street under the charter provisiSns. The defendant desired to lay its tracks in Water Street and the other streets mentioned in the grant, and to enable it to do this and cross Commercial Slip an embankment in the street was authorized. The grade of Water Street was not altered, but the defendant was permitted to build an embank- ment in the street for its railway. The fact that what was done did effect a change in the grade of that part of the street occupied bj' the embank- ment does not prove that what was done was in^ the execution of the power to alter the grade of streets conferred on the council. The primary object of this power contained in municipal charters, is to enable 'the municipal authorities to render a street more safe and con- venient for public travel, to afford drainage, in short, to adapt it more perfectly for the purposes of a public wa}'. It is claimed that' the city under this power could lawful!}' authorize an embankment in part of the street, leaving the other part on a lower level. We are not called upon to say whether there is any limit to the exercise of municipal authority or that the city cannot in exercising the power to establish and alter the grade of streets, raise an embankment in a part of a street if, in its judgment, this will promote the public convenience and the purposes of the street as a highway. But we think it cannot, under the guise of exercising this power, appropriate a part of a street to the exclusive, or practically to the exclusive use of a railroad company, or so as to cut off abutting owners from the use of any part of the street in the accustomed waj-, without making compensation for the injury sustained. We have held that the authority conferred by the general railroad law upon railroad companies to cross highways in the construc- tion of their lines, authorizes their construction on, over, or below the grade of the highway crossed, and that incidental changes of the grade of the street rendered necessary to accommodate railroad crossings, gives no right of action to abutting owners wlio may sustain injury. ( Conhling v. N. Y. 0. &W. JR. B. Co.rl02 N. Y. 107.) The practice of permitting railroads to cross highways is coeval with the introduc- tion of the railroad system in the State, and the decision comports with the general understanding of the bench and the bar. In case of rail- road crossings the highway is left as before. No part of it is taken or exclusively appropriated by the railroad compan}-. In these cases there is no use of the highway for railroad purposes. Eailroads of necessity intersect highways, and it is held that the State may permit CHAP. VI.J NEWMAN V. METROPOLITAN ELEVATED RAILWAY CO. 1125 them to be crossed hj a railroad company and that this involves an invasion of no substantial right of the owner of the fee. We ought not to extend the doctrine of the crossing cases to unreasonable limits, and we think that it cannot be applied to justify the exercise of the public powers attempted in the present case." . . . Gray, J. 1 concur with Jddge Andrews. . ; . " Here the object was to subserve the railroad use, and the appropria- tion by the defendant of this embankment is practically exclusive. The street was subjected to a new use, with consequences as direct, in the permanent deprivation of the abutting property owners' appurtenant easement, as though the railroad was operated in front of his premises upon a structure physically incapable of other uses. I think we have, in the present case, the element of an appropriation by the defendant of the street by a permanent structure and obstruction, and, hence, it must fall within the spirit, if not the letter, of our decision in the Story case." All concur, except Eabl and Finch, JJ., dissenting. Judgment affirmed. NEWMAN V. THE METROPOLITAN ELEVATED RAILWAY COMPANY. New York Court of Appeals. Second Division. 1890. [118 i\r. Y. 618.] Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made June 18, 1887, which affirmed a judgment in favor of plaintiff entered upon a verdict, and affirmed an order denying a motion for a new trial. At the commencement of this action the plaintiff held a leas© of prop- erty situated upon the northwest corner of Church and Rector streets in the city of New York. The lease bore date May 1, 1877, and was for the term of fifteen years, with a right of renewal for ah additional term of ten years. Upon the property there was a brick building five stories in height, the first floor of which was used as a restaurant, and the other floors for dwellings. The Metropolitan Elevated Railway was constructed through Churel> Street,in front of said premises, and in Rector Street there had been erected by the defendants a station, from which a covered platform ran to Greenwich Street and there connected with the Ninth Avenue elevated road. The plaintiff claimed in his complaint that the defendants' structure interfered with the ingress and egress to and from his premises, and also impaired the circulation of light and air from the street to his 1126 NEWMAN V. METKOPOLITAN ELEVATED RAILWAY CO. [CHAP. VL building, and deprived him of its customary and lawful use, and greatly reduced its value to him as lessee. It was admitted that the action was brought and tried as one to re- cover in one sum the whole damage sustained and to be sustained from the depreciation of the plaintiff's estate, on the assumption that the defendants' structure caused a permanent impairment of the easements in the street for light, air, and access. The court, having charged the jury that " the damages to plaintiflF's leasehold was to be measured by the depreciation of rents caused by defendants' structure, in depriving the premises of the accustomed light, air, and egress which it had before said structure was placed thereon," and that in considering the question of damages " the fact that real estate had risen generally in that district of the city did not relieve the railroad company from the element of damage," was requested by the defendants to charge as follows : " That in estimating the damages to the leasehold, interest in this plaintiflF caused by the interference by the defendants with the light, air, and access appurtenant to the prem- ises, the jurj- may take into consideration any benefits peculiar to liis house which have arisen by the construction of the road as shown by the evidence." To this the court replied: "That I refuse to charge. On the contrary, the jury have no right to take any such fact into consideration." The defendants gave evidence tending to show, and from which tlie jury might have found, that while the upper parts of the building had been made less desirable for dwellings by reason of the erection of the defendants' structure, and in consequence thereof the rents had fallen, the location of the station in Rector Street had, from the greater num- ber of people resorting there, caused the first or store floor of the build- ing to become more desirable for business purposes, and greatly en- hanced in rental value. Julien T. Dauies and W. Bowke Cochran, for appellant. James M. Smith and Inglis Stuart, for respondent. Brovtn, J. The basis of the court's refusal to charge as requested is to be found in the Rapid Transit Act (chap. 606, Laws 1875, § 20) and in the General Railroad Law (chap. 140, Laws 1850, § 16) which, by section 3, chapter 885, Laws of 1872, was made applicable to the Gilbert Elevated Railroad Companj- to whose rights the Metropolitan Railroad Company succeeded. These laws provide that commissioners of appraisal shall not, in determining the amount of compensation to ^e made to parties owning or interested in property acquired for the construction and operation of railways formed thereunder, " make any allowance or deduction on account of any real or supposed benefits which the party in interest may derive from the construction of the proposed railroad." '' What is the true meaning of this provision and how far it is appli- cable to a case of the character we are considering, is a question we are to determine upon this appeal* CHAP. VI.] NEWMAN V. METKOPOLITAN ELEVATED KAIL WAY CO. 1127 The principle upon which compensation is to be made to the owner of lands taken by proceedings under the General Railroad Law has been frequently considered by the courts of this State, and the rule is now established that such owner is to receive, first, the full value of the land taken, and, second, where a part only of land is taken, a fair and adequate compensation for all injury to the residue sustained or to be sustained by the construction and operation of the railroad. T. & B. R. a. Co. V. Zee, 13 Barb. 169 ; In re C. & S. V. E. B. Co., 66 Barb. 466 ; In re P. P. &C.I. B. B. Co., 13 Hun, 345 ; In re N. K C. & H. B. B. B. Co., 15 Hun, 63 ; In re N. Y. L. & W. li. Co., 29 Hun, 1 ; Inre N. Y. L. & W. B. Co., 49 Hun, 639 ; Hender- son V. N. Y. C. B. B. Co., 78 N. Y. 423. The first element in the award represents the compensation for land which the railroad takes, and to which it requires title. The second element represents damages which are the result or consequences of the construction of the road upon property not taken, and which the owner still retains. Such damages are wholly consequential, and to ascertain them necessarily involves an inquiry into the effect of the road upon the property, and a consideration of all the advantages and disadvantages resulting and to result therefrom. The rule is well stated in Lewis on Eminent Domain, section 471, as follows : " When part of a tract is taken, just compensation would therefore consist of the value of the part taken, and damages to the remainder, less any special benefits to such remainder by reason of the taking and use of the part for the purpose proposed." In this rule thus settled in this State, and which controls all awards for taking of land under the General Railroad Act, is to be found the true application of the statutory provision which forbids deductions and allowances to be made by commissioners for any real or supposed benefits, which the parties interested ma^' derive from the construction of the railroad. Whatever land is taken must be paid for by the rail- road company at its full market value, and from such value no deduc- tion can be made, although the remainder of the land-owners' property may be largely enhanced in value as a result of the operation of the railroad. But in considering the question of damages to the remainder of the land not taken, the commissioners must consider the effect of the road upon the whole of that remainder, its advantages and disad- vantages, benefits and injuries, and if the result is beneficial, there is no damage and nothing can be awarded. The rule established under the General Railroad Law must govern and control awards made under the Rapid Transit Act. The last- named Act confers upon corporations formed thereunder, the power to acquire property for railroad purposes, and the statutory' proceedings prescribed are substantially the same as those under the General Rail- road Act and no reason is apparent why the same rule should not apply to proceedings under both Acts. This court has decided that owners of land abutting upon public 1128 NEWMAN t;. METfiOPOLlTAK ELEVATKD UAIL WAY CO. [CHAP. VI. streets have easements therein for ingress and egress to and from their premises, and for. the free circulation of light and air to their property,, which easements are interests in real estate, and constitute property within the meaning of that term as used in the Constitution. The easement is the property taken by the railroad company. But in estimating its value it is impossible to consider it as a piece of prop- erty, separate and distinct from the land to which it is appurtenant, and the right of the property owner to compensation is measured, not by the value of the easement in the street separate from bis abutting property', but by the damages which the sfbutting property sustains as a result or consequence of the loss of thC' easement. It follows that in making an award to a partj- situated as the plain- tiflf was with reference to the defendants' railroad, there would be no compensation for property taken beyond a nominal sum, and that his right to recover would rest chiefly upon proof of consequentialdaraageSi An estimate of such damages as I have already shown, involves an inquiry into the effect of the railroad upon the whole property, and a consideration of all its advantages and disadviantages. If the rental value of the whole building was shown to have been diminished, there was injury for which plaintiff was entitled to recover, but if the di-J minished rental ■ value of the upper floors was equal or overcome by- increased rental value in the store then there was no injuryand no basis for a recovery of substantial damages against the defendants. While the precise question presented by the • exception ■ in this case has not heretofore been decided in this court, it is covered by the de- cisions under the General Railroad Law which have been cited, and the rule established hy those decisions has recently- been applied in the second judicial department to the case of an (Pub. Sts. c. 106, § 14), for the transmission of intelligence by electricity, are about to grant to that company, under the Pub. Sts. c. 109, a location along said highway for their posts, wires, &c. The bill sedks to restrain the defendants, upon the ground that the last-named statute is unconstitutional. . . . [Here follows a recital of the substance of the statute and a deter- mination that the business in question is one of a public nature.] But as, even if the legislature has the right to authorize the erec- tion of telegraph poles along a highway, as a public use thereof, appropriate safeguards must be provided for any rights of property belonging to individual owners which may be taken or invaded, there remain these inquiries for our consideration : first, whether the statute does provide any compensation to the owner of the fee for this new use of the highway ; second, whether he is entitled to such compensa- tion ; third, whether the owner of property near to, or abutting upon, the highway, is entitled to any compensation therefor other than such as the Act provides. . . . As the chapter does not, in our opinion, provide for damages to the owner of the fee in the highway by reason of the erection of the tele- graphic posts and apparatus, it is to be determined whether such a use of the highway creates a separate and additional burden, requiring an independent assessment of damages, for which the owner of the land was not compensated when the highway was laid out, and thus whether the omission of the Act to provide for this compensation renders it unconstitutional. It is to be observed that, for more than thirty years, the right to appropriate highways to this public use, without any compensation to the owners of the fee therein, has been asserted ; that the statutes in regard to it have more than once been expounded by this court, without any apparent doubt of their validity ; and that, up to the present time, no suggestion has ever been made that the rights of such owners were in any way invaded. If the argument that these owners are entitled to compensation be correct, the estates of thousands have been wrong- fully used while they were either ignorant of their rights or submis- sive to injustice ; and in the mean time costly telegraphic structures have been erected, and the whole business of the State has accommo- dated itself to this system of the transmission of intelligence. After so long a practical construction by the legislature and tlie courts, and ^ This statute authorizes any number of persons, not less than three, to form a cor- poration " for the purpose of carrying on any lawful business," excepting certain kinds of business, not material to be stated. CHAP. VI. J PIERCE ET AL. V. DREW ET AL. 1135 after so widely extended an acquiescence by parties whose estates or interests therein are directly affected, it would require a clear case to justify us in setting aside such a statute as unconstitutional, even if it ba true, as it certainly is, that no usage for any course of years, nor any number of legislative or judicial decisions, will sanction a viola- tion of the fundamental law, clearly expressed or necessarily under- stood. Packard v. Richardson, 17 Mass. 122, 144 ; Commonwealth V. Parker, 2 Pick. 549, 567 ; Holmes v. Hunt, 122 Mass. 505. No right to take the private property of the owner of the fee in the high- way is conferred by this Act ; all that is given is the right to use land, by permission of the municipal authorities, the whole beneficial use of which had been previously taken from the owner and appropriated to the public. It is a temporary privilege only which is conferred ; no right is acquired as against the owner of the fee by its enjoyment, nor is any legal right acquired to the continued enjoyment of the privilege, or any presumption of a grant raised thereby. Pub. Sts. c. 109, § 15. The discontinuance of a highway would annul any permit granted under the statute, and no encumbrance would remain upon the land. In Ohase.v. Sutton Manuf. Co., 4 Cush. 152, 167, it is said by Chief Justice Shaw, " that where, under the authority of the Legislature, in virtue of the sovereign power of eminent domain, private property has been taken for a public use, and a full compensation for a perpetual easement in land has been paid to the owner therefor, and afterwards the land is appropriated to a public use of a like kind, as where a turn- pike has by law been converted into a common highway, no new claim for compensation can be sustained by the owner of the land over which it passes." The case itself goes further than the illustration used by the Chief Justice. It related to a claim made by an owner in fee of land which had been taken by a canal company by statutory authority, for the purpose of a navigable waterway, which company had been permitted by statute to sell its property to a railway company ; but, although the two modes of transportation were entirely different, the validity of the Act was sustained, and the claim of the land-owner for further compensation disallowed. " It is well settled," says Mr. Justice Gray, in Boston v. Richardson, 13 Allen, 146, 160, "that when land, once duly appropriated to a public use which requires the occupation of its whole surface, is applied by authority of the legislature to another similar public use, no new claim for compensation, unless expressly provided for, can be sustained by the owner of the fee." When land has been taken or granted for highways, it is so taken or granted for the passing and repassing of travellers thereon, whether on foot or horseback, or with carriages and teams for the transportation and conveyance of passengers and property, and for the transmission of intelligence between the points connected thereby. As every such grant has for its object the procurement of an easement for the public, the incidental powers granted must be so construed as most effectually 1136 PIERCE ET AL. V. DREW ET AL. [CHAP. VI. to secure to the public the full enjoyment of such easement. Gom- monwealth v. Temple,!^ Gray, 69, 77. It has never been doubted that, by authority of' the legislature, highways might be used for gas or water pipes, intended for the con- venience of the citizens, although the gas or water was conducted there- under by companies formed for the purpose ; or for sewers, whose object was not merely tlie incidental one of cleansing the streets, but also the drainage of private estates, the rights of which to enter therein were subject to public regulations. Commonwealth' v. .Lowell Gas Light Co., 12 Allen, 75 ; Attorney- General v. Metropolitan Railroad, 125 Mass. 615, 517 ; Boston v. Richardson, ubi supra. Nor can we perceive that these are to be treated as incidental uses, as suggested by the plaintiff, because the pipes are conducted under the surface of the travelled way, rather than above it. The rights of the owner of the fee must be the same in either case, and the use of the land under the way for gas-pipes or sewers would effectually pre- vent his own use of it for cellarage or similar purposes. When the land was taken for a highway, that which was taken was not merely the privilege of travelling over it in the then known vehi- cles, or of using it in the then known methods, for either the convey- ance of property or transmission of intelligence. Although the horse railroad was deemed a new invention, it was held that a portion of the road might be set aside for it, and the rights of other travellers, to some extent, limited by those privileges necessary for its use. Common- wealth v. Temple, ubi supra; Attorriey-General v. Metropolitan ■ Rail- road, ubi supra. The discovery of the telegraph developed a new and valuable mode of communicating intelligence. Its use is certainly simi- lar to, if not identical with, that public use of transmitting information for which the highway was originally taken, even if the means adopted are quite different from the post-boy or the mail-coach. It is anewly discovered method of exercising the old public easement, and all appropriate methods must have been deemed to have been paid for when the road was laid out. Under the clause to regulate commerce among the States, conferred on Congress by the Constitution of the United States, although telegraphic communication was unknown when it was adopted, it has been held that it is the right of Congress to pre- vent the obstruction of telegraphic communication by hostile State legislation, as it has become an indispensable means of intercommuni- cation. Pensacola Telegraph v. Western Union Telegraph [96 U. S. 1]. No question arises as to any interference with the old methods of communication, as the statute we are considering, by § 8, guards care- fully against this by providing that the telegraphic structures are not to be permitted to incommode the public use of highways or public roadsi We are therefore of opinion that the use of a portion of a highway for the public use of companies organized under the laws of the State for the transmission of intelligence by electricity, and sub- ject to the supervision of the local municipal authorities, which has CHAP. VI.] ADAMS V. CHICAGO, BURLINGTON, ETC. RAILROAD. 1137 been permitted by the legislature, is a public use similar to that for which the highway was originally taken, or to which it was originally devoted, and that the owner of the fee is entitled to no further compensation. There remains the inquiry, whether there is anj' objection to the statute because it does not provide a sufficient remedy for the owners of property near to or adjoining the way, who may be incidentally in- jured by the structures which the telegraph companies may have been permitted to erect along the line of the highway and within its limits. Such remedy is given by § 4 aS the legislature deemed sufficient. We should not be willing to believe that the land-owner thus injured would be without remedy, if the company failed to pay the damages lawfully assessed under this section, while it still endeavored to main- tain its structures ; but the only compensation to which such owner is entitled is that which the legislature deems just, when it permits the erection of these structures. The legislature may provide for com- pensation to the adjoining owners, but without such provision tiiere can be no legal claim to it, as the use of the highway is a lawful one. Attorney- General v. Metropolitan Railroad, ubi supra. The clause in the Declaration of Rights which provides that, " when- ever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor," is confined in its application to property actually taken and appropriated by the government. No construction can be given to it which can extend the benefit of it to the case of one who suffers an indirect or consequential damage or expense by means of the rightful use of property already belonging to the public. Cal- lender v. Marsh, 1 Pick. 418, 430. The majority of the court is therefore satisfied that the demurrer to this bill was properly sustained, and the entry will be, Decree affirmed. [Chaeles Allen, J., for himself and William Allen, J., gave a dissenting opinion.] ^ ADAMS V. CHICAGO, BURLINGTON, AND NORTHERN RAILROAD COMPANY. Supreme Court of Minnesota. 1888. [39 Minn. 286.] Appeal by defendant from an order of the District Court for Winona Countj', refusing a new trial after a trial by Start, J., a jury being waived. 1 Compare Am. Teleph. ^ Teleg. Co . v. Pearce, 71 Md. 535 (1889). — Ed. VOL. I. — 72 1138 ADAMS V. CHICAGO, BURLINGTON, ETC. RAILROAD. [CHAP. VL Wm. Gale, J. W. Losey, and Young and Lightner, for appellant. Tawney and Randall, for respondent. GiLFiLLAN, C. J. Second Street, in the citj- of Winona, is, and for 30 years has been, a public street, 70 feet wide, running nearlj- east and west through the citj'. Plaintiff is the owner of and occupies as his residence a lot abutting on the south side of said street. The defendant, under authorit3' of the Common Council, which authority the city charter empowered the council to give, has constructed and is operating the main line of its railroad, an ordinary commercial railroad, running to and through Winona, upon and along the north half of Second Street, passing in front of plaintiff's lot, no part of the track, being laid south of the centre line of the street. Safe and convenient ingress and egress to and from plaintiff's lot are not materially im- paired. The injurious consequences to the lot are not due to an3- improper construction or operation of the road, but are such as result from con- structing and operating a railroad along a street in an ordinary and prudent manner. These injurious consequences arise from the engines and trains passing da}' and night, and throwing steam, smoke, dust, and cinders upon the plaintiff's premises, and into his house, polluting the air with offensive smells, and interfering with the free circulation of light and pure air into and upon his premises, and jarring the ground so as to cause the house and furniture to vibrate ; causing physical dis- comforts and annoj'ances to plaintiff and his famil}', and whereby the rental value of his premises is diminished. The court below ordered judgment for the plaintiff for the damage to the rental value up to the commencement of the action, and the defendant appeals. The principal question involved has never been directly before this court. There have been, however, cases in which the decisions bore incidentally upon it. It is well settled that where there is no taking of, or encroachment on, one's property or propertj' rights by the con- struction and operating of a railroad, any inconveniences caused by it, as from noises, smoke, cinders, etc., not due to improper construction, or negligence in operating it, furnish no ground of action ; as when the railroad is laid wholly on land which the company has acquired by pur- chase or condemnation, or in which the party has no interest, so that it does no wrong to him in constructing and operating the road, though there may be some inconvenience or damage to him arising from it, if it be such as the general public suffer, he has no legal cause to com- plain. Railroads are a necessity, and the public, which enjoys the general incidental benefits from them, must endure any general incon- veniences necessarily incident to their construction and operation. And if a railroad company even wrongfully obstructs a street abutting on one's premises, not at the part of the street where it so abuts, unless access to his premises is thereby cut off or materially interfered with, any inconvenience that he may suffer therefrom furnishes no ground for a private action, because the wrong done is a public wrong for which the public authorities are the proper parties to seek redress. CHAP. VI.] ADAMS V. CHICAGO, BURLINGTON, ETC. RAILROAD. 1139 See Shaubutv. St. Paul & Sioux City R. Co., 21 Minn. 502 ; Rochette V. Chicago, Mil. dt St. Paul Ry. Co., 32 Minn. 201 (20 N. W. Rep. 140) ; Barnum v. Minnesota Transfer Ry. Co., 33 Minn. 365 (23 N. W. Rep. 538). But if a railroad, not toucliing one's premises, ob- structa a street abutting on or leading to them, so as to cut off or materially interfere with his only access to them, the inconvenience is deemed to be special, and not one common to the public, and an action lies. Brakken v. Minn. & St. Louis Ry. Co., 29 Minn. 41 (11 N. W. Rep. 124). It is the same where one owns land abutting on a naviga- ble river or lake, and a railroad is laid along between the land and the ■ navigable water. Brisbine v. St. Paid <& Sioux City R. Co., 23 Minn. 114; Union Depot, etc. Co. v. Brunswick, 31 Minn. 297 (17 N. W. Rep. 626). And also where a strip between the lots and the river has been dedicated to public use as a levee or landing, and a railroad is laid upon it. Shurmeier v. St. Paul & Pac. R. Co., 10 Minn. 59 (82) (88 Am. Dec. 59). Where, however, there is a taking of a part of a tract or lot of land, the diminution in value of the part not taken, caused by the noise of passing trains, and inconvenience and interrup- tion to the use of the part not taken, resulting from the ordinary opera- tion of the road (^County of Blue Earth v. St. Paul & Sioux City R. Co., 28 Minn. 503, 11 N. W. Rep. 73) ; and from increased exposure of buildings already erected to danger of fire from passing trains (Col- vill V. St. Paul & Chicago Ry. Co., 19 Minn. 240 (283) ; Johnson v. Chicago, B. S JST. R. Co., 37 Minn. 519, 35 N. W. Rep. 438) ; and from increased danger of injury to or destruction of the household of the owner, unless the property- not taken is equally valuable for some other purpose, — Curtis v. St. Paul, S. & T. F. R. Co., 20 Minn. 19 (28) , — are proper elements of the damages to be allowed for the taking. From these decisions the propositions may be stated : That the right of recovery against a railroad company, when there is no improper consfruction of or negligence in operating the railroad, for inconven- iences caused by noises, smoke, dust, and cinders, does not depend on the fact that such inconveniences exist, if they be such as are com- mon to the public at large, but on the fact that there has been a taking of the parties' property for the purpose of the railroad, accompanied with such inconveniences, or to which they are incident; and, if neces- sarily caused by the company's proper use of its own property, there can be no recover}- because of them. And that, where there is a tak- ing, such inconveniences as are necessarilj' incident to it, and to the use for which the property is taken, are proper elements of the damages to the party. And this further proposition (fullj- established and more clearly set forth in many other decisions of this court) that the rule oi damage is applied only to a case where part of a distinct tract or lot is taken, in which case the damages only to the part not taken are to be estimated. As to that only are the damages deemed special. As to other distinct tracts or lots of the same owner the inconveniences are generally such as the public suffer. ] 140 ADAMS V. CHICAGO, BUELINGTON, ETC. EAILEOAD. [CHAP. VI. As the plaintiff does not claim to own the land in the. street which the compan}- has taken for its road, but claims only a right or interest in the nature of an easement in it appurtenant to his lot, the question has been raised and discussed, at considerable length, whether, conceding the right or interest he claims, the acts of the defendant constitute a tak- ing, within the constitutional provision prohibiting the taking of private property for public use without just compensation. As that provision is inserted for the protection of the cilijien, it ought to have a liberal interpretation, so as to eflFect its general purpose. All property, what- ever its cliaracter, comes within its protection. It is hardly necessarj' to say that any right or interest ifi land in the nature of an easement ■ is property, as much so as a lien, upon it by mortgage, judgment, or under mechanic's lien laws. If a man is deprived of his property' for the purpose of any enterprise of public use, it must be a taking, even though the right of which he is deprived is not and cannot be employed in the public use. In the case of a lien on land taken for railroad pur- poses, the company cannot make any use of the lien. It does not succeed to the ownership of it. It merelj' displaces it, — destroys it. So, in case of an easement. If A. has, as appurtenant to his lot, an easement for right of way over the adjoining land, and such adjoining land is taken for railroad purposes, the company does not and cannot succeed to the easement. But it may destroy or materially impair it by renderijig it impossible for the owner of it to enjoj- it to the full extent that he is entitled to. Such destruction or impairment is within the meaning of the word " taken," as used in the Constitution, as fullj- as is the depriving the owner of the possession and use of his corporeal property. The main question in the case is, has the owner of a lot abutting on a public street a right or interest in the street opposite his lot, appurtenant to his lot, and independent of his ownership of the soil of the street, and, if so, what is that right or interest? If he has, and the acts of the defendant in constructing and operating it^rail- road along that part of the street opposite plaintiff's lot prevent or impair his enjoj-raent of such right or interest, then he has a right to recover. We find a great manj' cases in which is stated, in general terms, the proposition that, althougli the fee of the street be in the State or muni- cipality, the owner of an abutting lot has, as appurtenant to his lot, an interest or easement in the street in front of it, which is entirely distinct from the interest of the public. Grand Rapids & Ind. R. Go. v. Hei^el, 38 Mich. 62 ; Lexington & Ohio R. Co. v. Applegate, 8 Dana, 289 (33 Am. Dec. 497) ; Elizabethtown, etc. B. Co. v. Combs, 10 Bush, 382 ; Uaynes v. Tliomas, 7 Ind. 88 ; Proteinan v. Indianapolis, etc. R. Co., 9 Ind. 467 (68 Am. Dec. 650) ; Stone v. Fairhury, etc. R. Co., 68 111. 394; Tate v. Ohio & Mississippi B. Co., 7 Ind. 479 ; Lackland v. J^orth Missouri B. Co., 31 Mo. 180 ; Street Bailway v. Cumminsville, 14 Ohio St. 523 ; Bailway Co. v. Lawrence, 38 . Ohio CHAP. VI.J ADAMS V. CHICAGO, BURLINGTON, ETC. RAILROAD. 1141 St. 41 ; Crawford v. Village of Delaware, 7 Ohio St. 459 ; City of Denver v. Bayer, 7 Col. 113 (2 Pac. Rep. 6); Town of Rensselaer v. Leopold, 106 Ind. 29 (5 N. E. Rep. 761). In 38 Mich. 62, 71, the Supreme Court states it thus : " Every lot-owner has a peculiar interest in the adjacent street which neither the local nor the general public can pretend to claim ; a private right in the nature of an incorporeal here- ditament, legally attached to his contiguous ground ; an incidental title to certain facilities and franchises, which is in the nature of property, and which can no more be appropriated against his will than any tangi- ble property of which he may be owner." Although the proposition was apparentl}- stated with care and upon deliberation, it seems to us (and we say it with diffidence, because of the eminent character of that court) that the decision of the case was a departure from the doctrine thus laid down (and the same may be said of several of the cases re- ferred to). For where the railroad was laid upon a part of the street opposite the party's lot, of which part he did not own the fee, it denied his right to recover for damages caused to his lot incidental to a proper operating of the railroad, and limited it to cases where the acts of the company, of omission or commission, amounted to a nuisance. As the lot-owner can recover for a private nuisance, committed by the im- proper operation of a railroad, even on the company's own land, in which he has no interest {Baltimore & Potomac H. Co. v. I^^irst Baptist Church, 108 U. S. 317, 2 Sup. Ct. Rep. 719), it would seem as though, if he is in no better plight in respect to the company's acts in the street, his " peculiar interest," distinct from that of the public, in the street, is of very little value. His title to his interest in the street is precari- ous, if authoritj- from the State or municipalit}' may justify what would without such authority be a private wrong as to him. None of the cases we have referred to, nor any till we come to what are known as the " Elevated Railway Cases," attempt to define the limits and extent of the right of an abutting lot-owner in the street opposite his lot, where he does not own the fee. That it extends to purposes of ingress and egress to and from his lot is conceded by all. And for this purpose it may extend beyond the part of the street directly in front ; for, as we have seen, an action by him will lie for obstructing the street, away from his lot, so as to cut off or materially mterfere with his only access to it. The questions are asked, how does the lot-owner get an easement in the street? . . It is, however, hardly necessary to inquire how the lot-owner gets his private right in the street ; for it is established law that he has a private right, which, as we have stated, all the cases concede extends to the necessity of access. Access to the lot is only one of the direct advantages which the street affords to it. In a city densely peopled and built up, the admission of light and air into buildings is about as important to their proper use and enjoyment as access to them. Light and air are largely got from the open space which the streets afford. What reason can be given for excluding a right to the street for admit- 1142 ADAMS V. CHICAGO, BURLINGTON, ETC. EAILKOAD. [CHAP. VL ting light and air, when the right to it for access is conceded ? For mere purposes of access to the lots, a strip 10 or 15 feet wide might be sufficient. Yet everybody knows that a lot fronting on a street 60 or 70 feet wide is more valuable, because of the uses that can be made of it, than though it front on such a narrow strip. Take a case in one of the States where the fee of the streets is in the State or municipalitj', and of a street 60 feet wide. The abutting lot-owners have paid for the advantages of the street on the basis of that width, either in the enhanced price paid for their lots, or, if the street was established by condemnation, in the taxes they have paid*for the laud taken. In such a case, if the State or municipality should attempt to cut the street down to a width of 10 or 15 feet, would it be an answer to objections by lot-owners that the diminished width would be sufficient for mere purposes of access to their lots? . It would seem as though the question suggests the answer. The cases known as the " Elevated Railway Cases" {Story, v. N. Y. Elevated B. Co., 90 N. Y. 122, and JJahr v. Metropolitan Elevated R. Go., 104 N. Y. 268, 10 N. E. Rep. 528) are notable in several re- spects : first, because they were the first cases (and it seems strange that they should have been) in which was squarely presented, so as to demand a direct decision, the claim of abutting lots to an easement in the street in their front, for purposes of light and air ; second, for the number and ability of the counsel on each side, and the thoroughness with which they discussed every point involved, and presented, every argument /iro and con that could be suggested; and, lastly and espe- cially, for the exhaustive character of both the prevailing and. dissent- ing opinions by the members of the court. The latter case was really a re-argument of the questions decided in the earlier, and in its opinion the court not only adhered to, but took pains to deflne, its earlier deci- sion,, and in some respects to go beyond it, and give .to the principles determined a wider application than appears to have been given to them in the first case. We think that in those cases the doctrine is unqualifledlj- established that no matter how the abutting owner ac- quires title to his land, and no matter how .the street was established, so that the only right of the public is to hold it for public use as a street forever (and the public gets no greater right under a dedication), and no matter who may own the fee, " an abutting owner necessarily enjoys certain advantages from the existence of an open street adjoin- ing his property, which belong to him by reason of its location, and are not enjoyed by the general public, such as the right of free access to his premises, and the free admission and circulation of light and air to and through his property," The doctrine was followed and applied bj' the Circuit Court of the United States for the Southern District of New York, in Fifth Nat. Bank v. N. Y. Elevated B. Co., 24 Fed. Rep. 114. The general doctrine, we think, stands on sound reason and considerations of practical justice. The private right in. a street is of, course subordinate to the public CHAP. VI.] ADAMS V. CHICAGO, BURLINGTON, ETC. RAILROAD. 1143 right. The latter right is for use as a public street, and the incidental light to put and keep it in condition for such use, and for no other pur- pose. Whatever limitation or abridgment of the advantages which the abutting lot is entitled to from the street may be caused by the exercise of the public right, the owner of the lot must submit to. If putting it to proper street uses causes annoying noises to be made in front of his lot, or the air to be filled with dust and smoke, so as to darken his premises, or pollute the air that passes from the street upon them, he has no legal cause of complaint. His right to complain arises when such interruptions to the enjoyment of his private right are caused by a perversion of the street to uses for which it was not intended ; by employing it for uses which the public right does not justify. That constructing and operating an ordinary commercial railroad on a street is a perversion of the street to a use for which it was not intended, one not justified by the public right, and which the State or municipality, as representing such right, cannot, as against private rights, authorize, — the decisions of this court are full and explicit. It has always been held here, contrary to the decisions in many of the States, that laying such a railroad upon a public street or highway is the imposition of an additional servitude upon it, — an appropriation of it to a use for which it was not intended. Carli v. Stillwater Street Ry., etc. Co., 28 Minn. 373 (10 N. W. Rep. 205), and cases cited. Many of the decisions cited to show that upon a state of facts such as exists in this case the lot- owner can have no right of action, were by courts which hold that the use of a street for an ordinary railroad is a legitimate street use, — one that comes within the uses and purposes for which streets are estab- lished. Where that is the rule, inasmuch as the right or interest of the abutting lot-owner is subordinate and subject to the right to devote the street to use for a railroad, as well as for any other proper mode of street travel, of course no cause of action in favor -of the lot-owner, whether he owns the fee of the street or not, could grow out of the proper construction and operating of a railroad in the street. For that reason the decisions of such courts can be of no anthorit}' here, where a different rule upon the rightfulness of using the street for such a purpose prevails. The conclusions arrived at are that the owner of a lot abutting on a public street has, independent of the fee in the street, as appurtenant to his lot, an easement in the street in front of his lot to the full width of the street, for admission of light and air to his lot, which easement is subordinate only to the public right. That depriving him of or inter- fering with his enjoyment of the easement for any public use not a proper street use is a taking of his property within the meaning of the Constitution. That appropriating a public street to the construction and operation of an ordinary commercial railroad upon it is not a proper street use. That where, without his consent and without compensation to him, such a railroad is laid and operated along the portion of the street in front of his lot, so as upon that part of the street to cause 1144 ADAMS V. CHICAGO, BURLINGTON, ETC. RAILROAD, [CHAP. VI. smoke, dust, cinders, etc., whicb darken or pollute the air coming from that part of the street upon his lot, he may recover whatever damages to his lot are caused bj' so laying and operating such railroad on that part of the street. That the recovery should be limited to the damages caused bj- operat- ing the railroad in front of plaintiff's lot, and ought not to include any that might have accrued from operating it on other parts of the street, was undoubtedly the opinion of the court below when it came to make its findings of fact ; for it finds as a fact no other damage than the depreciation in the rental value of the lott;aused by operating the rail- I'oad on the street in front of it. The proof of depreciation in rental value, however, was made in part by admitting proof (against defend- ant's objection) of the rental value "with the road constructed on that street, and operated there as roads usually are." There was no other evidence of depreciation. The evidence takes into account not merely the consequences to the lot from operating the railroad in front of it, but also from operating the road on the whole or any part of it, however remote from the lot. This would allow plaintiff to recover for such consequences of operating the road as he suffered in common with the public generally, and not merely' such as were peculiar to himself. The evidence was erroneouslj' admitted, and, as there was no compe- tent evidence to sustain the finding'of the amount of damage, the find- ing must be set aside. A new trial is therefore ordered of the issue as to the amount of damage (but of no other issue), unless^ the plaintiff will consent in the court below to take judgment for nominal damages merely.^ Vanderburgh, J. (dissenting). If a street orhighwaj- is so occu- pied or encumbered as to occasion special and peculiar injurj' to an abutting land-owner, an action for damages or an injunction may be sustained. But I. do not assent to the proposition that such owner has property interests in the street, beyond the boundary- of his land therein (presumptively the centre line thereof), which are the proper subject of condemnation proceedings. The opposite rule, I think, has always been accepted and acted on in this State, and is supported bj- the great weight of authority. . . . 1 And so Lamm v. Chic. ^c. Ry. Co., 45 Minn. 71, 78 (1890) ; Williams v. Cily Electric St. By. Co., 41 Fed. Rep. 556 (U. S. C. G. E. D. Ark. 1890). Compare Nichols T. Ann Arbor, ^c. Ry. Co., 87 Mich. 361. In Garrett v. Lake Roland El. Ry. Co., 29 Atl. Tiep. 830 (June, 1894), the Maryland Court of Appeals (McSheket, J), in sustaiuing a decree dismissing the plaintiff's bill, said: "By Section 5 of Ordinance No. 23, approved April 8, 1891, the North Avenue Railway Company (one of the several roads by the consolidation of which the Lake Roland Elevated Railway Company was formed) was authorized to bridge the North- ern Central Railway Company's -tracks on North Street, by means of an elevated structure, extending, including the necessary approaches thereto, along North Street from the corner of that and Eager streets to the corner of North and Saratoga streets. A stone abutment, forming an inclined plane, to carry on its perpendicular or highest side the iron superstructure, and to serve, on its surface, as the northern approach to the elevated road, has been erected nearly in the centre of North Street between Chase CHAP. VI.] WESTEKN UNION TELEGKAPH CO. V. WILLIAMS. 1145 WESTERN UNION TELEGRAPH COMPANY v. WILLIAMS. Virginia Supreme Court of Appeals. 1890. [86 Va. 696.] Ereok to judgment of Circuit Court of New Kent County, rendered October 30, 1888, in an action of trespass on the case wherein James K. Williams was plaintiff, and the plaintiff in error, the Western Union Telegraph Compan}', was defendant. Opinion states the case. Staples and Munford and Robert Stiles, for the plaintiff in error. Pollard and Sands, E. T. Lacy, and W. W. Gordon, for the defendant in error. Lacy, J., delivered the opinion of the court. . . . However, it is claimed \>-^ the plaintiff in error that, granting that the rights of the and Eager, directly in front of part of the first-named lots of Mr. Garrett. It is 83 feet and 2^ inches in length, and ISj^^ feet in width, and start.s at the street grade, and gradually rises to a height of 9 feet, and leaving a distance or driveway between its western face and the curb line, contiguous to Mr. Garrett's property, of 9 feet and %\ inches. . . . The proposition distinctly presented by the record, and earnestly contended for by the appellant's distinguished counsel, is that the erection by the appellee of this abutment on property not owned by the appellant, but in the bed of a public city thoroughfare, upon which his lots abut, destroys the access to his land, interferes with light and air, imposes a new and additional servitude upon his prop- erty, and deprives him of the benefit of the use of the same, and amounts in law to a taking of his property that is in fact not trespassed upon or touched, — is illegal, until compensation shall have been first made therefor. Though there has been no physical invasion of the appellant's property, still, if the act complained of constitutes, by rea- son of its consequences, a taking of the appellant's private property for a public use, within the meaning of section 40 of article 3 of the Constitution of Maryland, which prohibits the taking of private property for public use, except upon just compensation being first paid or tendered, then the injunction should have been granted. . There is some conflict among adjudged cases as to what amounts to such a taking, but the overwhelming weight of authority accords with the conclusions which this court announced in two cases that will be fully referred to later on. Apart from the decisions of the Supreme Court of Ohio (see Crawford v. Delaware, 7 Ohio St. 460), which rest upon a doctrine peculiar to that State, and the recent New York decisions in the Elevated Railway Cases [Story v. Railroad Co., 90 N. Y. 122 ; I^hr v. Railway Co., 104 N. Y. 268), which are hopelessly in conflict with the principles announced in other cases in the same State (Radcliff y. Mayor, etc., 4 N. Y. 195; Fobes v. Railroad Co , 121 N. Y. 505), and the decisions in Minnesota (Adams v. Railroad Co., 39 Minn. 286, 39 N. W. 629; Lamm v. Railroad Co., 47 N. W. 455), and a few cases in Missis- sippi {Tkeobold v. Railway Co., 66 Miss. 279), and possibly one or two other States, — all substantially following the New York Elevated Railway Cases, — there is prac- tically an unbroken current of adjudged cases broadly and clearly marking and defin- ing the difference between an incidental injury to, and an actual taking of, private property. . . . We must either adhere to these two decisions in 50 Md. and 74 Md. [Mayor v. Willison, 50 Md. 148, and O'Brien v. R. R Co., 74 Md. 363], strictly in accord, as we have shown them to be, with the decided weight of judicial opinion on this subject, — or else, receding from them, adopt the Ohio or the New York doctrine. We see no reason for departing from, or for modifying, our former deliberate judg- ments. The Ohio doctrine is peculiar to that State alone {O'Connor v. Pittsburgh [18 Pa. St. 187], Northern Transp. Co. v. Chicago [99 U. S. 635]), and is so admitted to be in Crawford v. Delaware, supra. The New York doctrine involves this inextricable dilemma, viz. : If the grading of a street by a municipal corporation cuts oft all access 1146 WESTERN UNION TELEGRAPH CO. V. WILLIAMS. [CHAP. VL plaintiflf are what we have stated, and the Commonwealth has only the right to use by gcJing over, still his case is good, because his works are only a use of the easement, and constitute no new taking, — no additional servitude. We will now briefly consider this argument. The right in the Commonwealth is to use by going along over ; this is the extent of the right. If the right was granted to the defendant to go over simply to carry its messages,' then the right granted was in ex- istence before the grant, and the right to go over is not only not dis- puted, but distinctly admitted. This is the servitude over the land fixed upon it bj- law, and the whole extent of it. If anything more is taken it is an additional servitude, and is a taking of the property withia the meaning of the Constitution. To take the whole subject, the land in fee, is a taking. This, however, is the meaning of the term onl}' in a limited sense, and in the narrowest sense of the word. The constitutional provision, which declares that property shall not be taken for public use without just compensation, was intended to establish this principle beyond legislative control, and it is not necessary that prop- erty should be absolutely taken, in the sense of completely taking, to bring a case within the protection of the Constitution. As was said by a learned justice of the Supreme Court of the United States : " It would be a curious and unsatisfactory result." [Here follows the rest of a pajragraph from the opinion of the court (Miller, J.) in PumpeUy v. Green Bay Co., ante, p. 1062. J It is obvious, and it is so held in man}- cases, that the construction of a railroad upon a highway' is an additional servitude upon the land, for which the owner is entitled to additional compensation. Cooley's Constitutional Limitations, 548 ; Ford v. Chicago and Northwestern R. R. Co., 14 Wis. 616 ; Pomeroy v. Chicago & M. R. R. Co., 10 Wis. 640. And the power of the legislature to authorize a railroad to be constructed on a common highway is denied, upon the ground that the original appropriation permitted the taking for the purposes of a com- mon highway, and no other. The principle is the same when the land is taken for any other purpose distinct from the original purpose, and the reasoning in the two cases is applicable to each. In the case of Imlay v. Union Branch R. R. Co., 26 Conn. 255, it is said : " When land is condemned for a special purpose, on the score of public utility, the sequestration is limited to that particular use. Land taken for a high- way is not thereby converted into a common. As the property is not to a person's house, albeit his property is thereby destroyed and rendered valueless, it is not taken, in the constitutional sense ; but if a railroad company, in lawfully con- structing its road, does precisely the same thing that the city did in grading the street, then the abutter's property is taken, though not physically entered upon at all. . The structure is therefore a lawful one. It does not destroy the street, as a street, though it may cause the plaintiff greater inconvenience in gaining access to his lots than he encountered before it was built. But this and the othet injuries complained of are purely incidental and consequential, though the appellant [under the statutes and the ordinance] is not without a remedy therefor." . . [Bryan, J gave a dis- senting opinion.] — Ed. * CHAP. VL] western UNION TELEGRAPH CO. V. WILLIAMS. 1147 taken, but the use oul}-, the right of the public is limited to the use, the speeiflc use, for which the proprietor has been divested of a complete dominion over his own estate. These are propositions which are no longer open to discussion." Nioholson v. N. Y. & N. H. B. R. Co., 22 Conn. 85 ; South Carolina B. B. Co. v. Steiner, 44 Ga. 546. In the ease of a telephone companj', the Chancellor, in the case of Broome V. New York & New Jersey Telephone Co. (5th Central Rep. 814), held that, ill order to justify a telephone company in setting up poles in the highway, it must show that it has acquired the right to do so, either by consent or condemnation from the owner of the soil, saj'ing: "The complainant seeks relief against an invasion of his proprietary right to his land. The defendant, a telephone company, without any leave or license from, or consent by him, but, on the other hand, against his protest and remonstrance, and in disregard of his warning and express prohibition, and without condemnation or any steps to that end, set up its poles upon his land." What has been said is suflScient of itself to establish the right of the complainants to relief : for in order to justify the defendant in setting up the poles, it is necessary for it to show that it has acquired the right to do so, either by consent or condemnation from the owner of the soil. As to these rights of the owner of the soil see American and English Encyclopaedia of Law, vol. 9, title " High- ways," vii. sec. 2 ; Board of Trade Tel. Co. v. Bamett, 107 111. 508 ; Southwestern B. B. Go. v. Southern & A. Tel. Co., 46 Ga. 43 ; West- ern Union Tel. Co. v. Bich, 19 Kansas, 517; Willis v. Erie Tel. &c. Co., 34 N. W. Rep. 337. That the erection of a telegraph line upon a highway is an additional servitude is clear from the authorities. That it is such is equally clear upon principle in the light of the Virginia cases cited above. If the rigfit acquired b^' the Commonwealth in the condemnation of a highway is only the riglit to pass along over the highway for the public, then, if the untaken parts of the land are his private property, to dig up the soil is to dig up his soil ; to cut down the trees is to cut down his trees; to destroy the fences is to destroy his fences ; to erect any structure, to affix any pole or post in and upon his land, is to take pos- session of his land ; and all these interfere with his free and unrestricted use of his property. If the Commonwealth took this without just com- pensation it would be a violation of the Constitution. The Common- wealth cannot constitutionally grant it to another. . . . "We think the instructions of the Circuit Court were clearly right, and there is no error therein. . . . Lewis, P., dissenting, said : I take a very different view of the case from that taken in the opinion of the court just read, and as the case is an important one, I will state the reasons for my dissent. I agree that the Act of February 10, 1880, does not provide for additional compensation to the owners of lands abutting on highways along which telegraph lines may be constructed, and therefore that the question in the case is, whether, on that account, the Act is unconstitutional? . . . 1148 WESTERN UNION TELEGRAPH CO. V. WILLIAMS. [CHAP. VL What, then, is the nature and extent of the public easement in land condemned for a highway? The plaintiff contends that it is merely a right of passage, and nothing more ; Boiling v. The Mayor of Peters- burg, 3 Rand. 563, is referred to in support of this position. That case, which adopts the language of the ancient authorities on the subject, does, indeed, so hold, and when it was decided, the language used was suflBciently comprehensive to cover every then known mode of enjoying the public right. But since that time civilization has ad- vanced ; new modes of using the public highways have been discovered, and as the common law adapts itself to the constantly-changing wants and conditions of society, the courts have held, and rightly, I think, that the view contended for by the plaintiff is altogether too narrow and restricted ; so that the principle, as now established, is that the highways of a State are not only open and free for travel and traffic, but that, with the assent of the legislature, they may be devoted, under the original appropriation, to such other public uses as are con- sistent with their use as public thoroughfares. . . . Much of the confusion in the decisions on the subject of the consti- tutional power of the legislature over highways is owing, it seems to me, to a failure to discriminate between the use for which a highway is appropriated and the modes of using it. Hence, in passing upon such questions, a clear idea of what a highway is ought always to be kept in view. And what is a highway ? Perhaps no better definition of it, in the light of reason and the modern decisions, can be given than to say that it is a road or thoroughfare for the use of the general public for the purpose of inter-communication, which embraces the right to use the highwajs not only for passage, but for the transmission of intelligence. Formerly, as before remarked, the only mode by which intelligence could be transmitted over a highway was b}- passing over it. But it is not so now. The discovery of the telegraph and the telephone has revolutionized the methods of inter-communication ; and I am unable to perceive whjf, when a message is sent over a telegraph or telephone wire erected on the piiblic highwa3', the same, or substantially the same, use is not made of the highway as when a message is sent over it by a messenger on foot or on horseback. In the one case, as was well said in the argument at the bar, the message goes with the messenger ; in the other, it goes without a messenger, — the only difference being in the mode of sending it. And it hardly seems in keeping with the pro- gressive spirit of the common law, in eulogy of which so much has been justly written, to say that the new method is not admissible, though with the assent of the legislature, because it was not known to Bracton or Blackstone. Said the court, in Dickerson v. Oolgrove, 100 U. S. 578: " The common law is reason dealing by the light of experience with human affairs." And what experience had our fathers with electricity, as an element of inter-communication, in 1825, -when Boiling v. Mayor of Petersburg was decided ? None whatever. That the new method is not inconsistent with the ordinary use of a CHAP. VI.] WESTERN UNION TELEGRAPH CO. V. WILLIAMS. 1149 bighway is, to my mind, obvieus. Indeed, it is in aid of it ; for it not onlj' furnishes vastly increased facilities of inter-communication, but it tends to the relief of the highway by lessening travel over it, — which in populous cities, and even in the country', is no small consideration. And here it may be remarked that the statute expressly provides that in no case shall a telegraph or telephone erected along a highway ob- struct the ordinary use of the highway. Acts 1879-1880, p. 53 ; Code, sees. 1287-1290. ... In the argument, a number of authorities were cited to show that it is not competent for the legislature to authorize a telegraph companj' to construct its line over the right of way of a rail- road company, without making just compensation therefor ; and this, I take it, no one will deny. The road-bed and right of way of a railroad companjr — at least in this State — is as much its property as is its rolling-stock, or the money in its treasury, and the one can no more be lawfully taken without just compensation than the other. But that is a very different ease from this ; for here I have endeavored to show tiiat the plaintiff's property has not been taken ; that nothing has been granted but the right to use a public easement, which right, under no circumstances, can last longer than the easement itself. Fortunately, direct authority is not wanting in support of these views. The precise question has been adjudicated in two well-consid- ered opinions, — one by the Supreme Judicial Court of Massachusetts, in the case of Pierce v. Drew, 136 Mass. 75 ; the other by the Supreme Court of Missouri, in th'e case of The Jvlia Building Ass'n v. The Bell Telephone Co., 88 Mo. 258, — in both of which cases it was distinctly held that an additional servitude is not imposed by the erection on a public highway of a telegraph or telephone line, under a statute of the State, and that such statute is not unconstitutional, because it makes no provision for additional compensation to the owners of the fee in the high- way. In the first mentioned case, the court, in an able and learned opinion by Mr. Justice Devens, said : " The discovery of the telegraph developed a new and valuable mode of communicating intelligence.' Its use is certainly similar to, if not identical with, that- public use of transmitting information for which the highway was originally taken, even if the means adopted are quite different from the post-boy or the mail-coach. It is a newly-discovered method of exercising the old pub- lic easement, and all appropriate methods must have been deemed to have been paid for when the road was laid out." And he added that, " under the clause to regulate commerce among the States, conferred on Congress by the Constitution of the United States, although telegraphic communication was unknown when it was adopted, it had been held it is the right of Congress to prevent the obstruction of telegraphic com- munication by hostile State legislation, as it has become an indispen- sable means of inter-comraunicatiou." Citing Pensacola Telegraph v. Western Union Telegraph, 96 U. S. 1. See also Telegraph Co. v. Texas, 105 U. S. 460 ; Western Union Tel. Go. v. Alabama, 132 U. S. 472, and cases cited. 1150 WESTERN UNION TELEGRAPH CO. V. WILLIAMS. [CHAP. VI. In the telephone case, it was said: "If a thousand messages were daily transmitted by means of telephone poles, wires, and other appli- ances used in telephoning, the street through these means would serve the same purpose, which would otherwise require its use either bj' foot- men, horsemen, or carriages to effectuate the same purpose. In this view of it, the erection of telephone poles and wires for transmission of oral messages, so far from imposing a new and additional servitude, would,- to the extent of each message transmitted,, relieve the street of a servitude or use by a footman, horseman, or carriage." In opposition to these views, the case of Board of Trade Tel. Go. V. Barnett, 107 111. 507, has been cited. That case was disapproved of by both the Massachusetts and Missouri courts, and, I think, with good reason. The case decides that there is no difference in principle betvjeen a telegraph and a steam railway in a countr}- highwa)', so far as the abstract question of servitude is concerned, and that as the rail- way is an additional servitude, so also is, the telegraph. But this reasoning, to mj' mind, is fallacious. In the nature of things, the use of a highway for operating a steam-railway more or less excludes' the ordinary' methods of travel, and is attended with other inconveniences besides. But can this be said of the, telegraph? In what way does a telegraph erected on the side of a highway in the countrj- interfere with the rights of the abutting owner, or with its. use as a public thorough- fare? Does it exchide or obstruct travel? On the contrary, it is obviously much less of an obstruction than travellers on horseback or in vehicles over the road usually are to one another ; and as to anj- in- creased dangers or annoyances resulting from the use of streets in a city for the stringing of numerous wires, of which much has been said, that is not a direct but an incidental injury, which is a matter for the legislature, and not for the courts, to consider; for nobody doubts that in such cases the legislature may, if it sees fit, require additional compensation to the owners of the fee to be made. It has never been questioned, so far as I am informed, that the legislature may. authorize telegraph wires to be laid beneath the surface of a street, without additional compensation therefor ; and if this can be lawfully done, the power to authorize the wires to be put above the sur- face would seem to be equally clear, the difference being a mere matter of regulation, as to which, as we have seen, the power of the legislature is unqualified. . . . My opinion, therefore, is that the Act in question, is constitutional and- valid, and that the judgment of the Circuit Court should be reversed. Richardson, J., concurred with Lewis, P. Judgment affirmed.^ » And so Stowers v. Postal Tel. Co., 68 Miss. 559 (1891). —Ed. CHAP. VI.] HALSEY V. RAPID TRANSIT STREET RAII^WAY CO. 1151 HALSEY V. THE RAPID TRANSIT STREET RAILWAY COMPANY. New Jersey Coukt op Chancery. 1890. [47 N. J. Eq. 380.J Mr. John B. Emery and Mr. Frederic W. Stevens, for the com- plainant. Mr. Chandler W. Hiker and Mr._ Theodore JRunyon, for the defendant. Van Fleet, V. C. The complainant owns lands abutting on Kin- ney Street and Belmont Avenue, in the city of Newark. His lands have a frontage on Kinney Street of two hundred and thirty-six feet, and on Belmont Avenue of about one hundred and thirty-three feet. His title extends to the middle of the street. The defendant is a street railway corporation. It was organized under a general stat- ute approved April 6th, 1886, entitled " An Act to provide for the Incorporation of Street Railway Companies and to regulate the same." Rep. Sup. p. 363. The defendant has laid two railroad tracks in Kinney Street, and intends to lay two others in Belmont Avenue. One of those laid in Kinney Street is on that part of the street in which the complainant owns the fee of the land. No claim is made that these tracks were put down without authority of law, or in violation of the complainant's rights. They are unquestionably law- ful structures. They were put down by permission of the citj' au- thorities and under their supervision. The defendant intends to use electricity as the propelling power of its cars, and for the pur- pose of applying this force to the motors on its cars, it has, with tlie permission of the city authorities, erected three iron poles in the centre of Kinney Street and strung wire's thereon. The poles stand partly on the complainant's land. The erection of these poles and the use to which the defendant intends to applj- them constitutes the onl3' ground on which the complainant rests his right to the relief he asks. The bill describes these three poles as standing one hundred and eleven feet distant from each other, about twenty feet in height, ten inches bj' six in diameter at the base, set in a guard or frame, in the form of an inverted cup, which at its base is twenty-two inches by eighteen in diameter. . . . The poles were erected without the consent of the complainant and without compensation to him. No compensa- tion is intended to be made. The complainant insists that the erection of the poles imposed a new and additional servitude on his land in tlie street; in other words, that his land, b}' the erection of the poles, has been appropriated to a purpose for which the public have no right to use it. . . . The question on which the decision of the case must turn is this : Has the complainant's land in the street been appropriated to a pur- pose for which the public have no right to use it? It is of the first 1152 HALSEY V. KAPID TKANSIT STREET RAILWAY CO. [CHAP. VI. importance ia discussing tliis question to keep constantly before the mind the fact that the locus in quo is a public highwaj-, where the public right of free passage, common to all the people, is the primary and superior right. The complainant has a right in the same land. He holds the fee subject to the public easement. But his right is sub- ordinate to that of the public, and so insignificant, when contrasted with that of the public, that it has been declared to be practically with- out the least beneficial interest. Mr. Justice Depue, in pronouncing the judgment of the Court of Errors and Appeals in Hohoken Land and Improvement Co. v. Hoboken, 7 Vr. 540, 581, said: "With respect to land, over which streets have been laid, the ownership for all sub- stantial purposes is in the public. Nothing remains in the original proprietor but the naked fee, which on the assertion of the public right is divested of all beneficial interest." This view was subsequently en- forced bj' the same court in Sidlivan v. North Hudson JR. H. Co., 22 Vr. 518, 643. Both the nature and extent of the public right are well defined. Lands taken for streets are taken for all time, and if taken upon compensation, compensation is made to the owner once for all. His compensation is awarded on the basis that he is to be deprived perpetually of his land. The lands are acquired for the purpose of pro- viding a means of free passage, common to all the people, and conse- quently may be rightfully used in anj' waj' that will subserve that purpose. By the taking the public acquire a right of free passage over every part of the land, not only by the means in use when the lands were taken, but by such other means as the improvements of the age, and new wants, arising out of an increase in population or an enlarge- ment of business, may render necessar}-. It is perfectly consistent with the purposes for which streets are acquired that the public au- thorities should adapt them, in their use, to the improvements and conveniences of the age. Morris and Essex JR. JR. Co. v. Newark, 2 Stock. 352, 357. This is the principle on which it has been held that a street railway, operated by animal power, does not impose a new ser- vitude on the 'land in the street, but is, on the contrary, a legitimate exercise of the right of public passage. Such use, though it may be a new and improved use, still is just such a use as comes precisely within the purposes for which the public acquired the land. Chancellor Wil- liamson, speaking on this subject in the case last cited, said in sub- stance (p. 558), the authority to use a public highway for the purpose of a railroad, retaining the use of such highway for all ordinary pur- poses, subject only to the inconvenience of the railroad, is not such a taking of private property from the owner of the fee of the adjacent land as is prohibited by the Constitution. The easement of the highway is in the public, although the fee is technically in the adjacent owner. It is the easement only which is appropriated, and no right of the owner is interfered with. While the street is preserved as a com- mon public highway, the use of it does not belong to the owner of the land abutting on it any more than it does to an}- other individual of the CHAP, vi.] HALSEY V. RAPID TRANSIT STREET RAILWAY CO. 1153 community. The legislature, therefore, does not, by permitting a rail- road company to use the highway in common with the public, take away from the land-owner anything that belongs to him. It is not a misa{)propriation of the waj'. It is used, in addition to the ordinary mode, in an improved mode for the people to pass and repass. This exposition of the law, so far as it concerns horse railroads, has been approved as correct in all subsequent cases. As I understand the ad- judications of this State, this principle must be considered authorita- tively established, that any use of a street which is limited to an exercise of the right of public passage, and which is confined to a mere use of the public easement, whether it be by old methods or new, and which does not tend, in any substantial respect, to destroy the street as a means of free passage, common to all the people, is per- fectly legitimate. Such use invades no right of the abutting owners ; it takes nothing from them which the law reserved to the original pro- prietor when his land was taken ; it is simply a user of a right already fully vested in the public, and consequently, by its exercise, nothing is taken from the abutting owners which can be made the basis of addi- tional compensation. It is not denied that the railway tracks which the defendant has laid on the complainant's land were placed there by authority of law, nor that the defendant has a legal right to use them in the transportation of passengers, but the complainant's claim is this : that by the erection of the three poles, his land in the street has been appropriated to a use entirely outside of the public easement, and that it follows, as a neces- sary legal consequence, that such use constitutes a wrongful taking of his property. Stated more briefly, his claim is, that tlie erection of the poles puts an additional servitude on his land, and a,ttempts to give the public a right in his land which, as yet, has not been acquired, nor paid for. That the poles will, to a trifling extent, obstruct public travel and prevent infinitesimal parts of the street from being used as a means of free passage, is a fact which cannot be denied, but there is nothing in this situation of affairs which entitles the complainant to the aid of a court of equity, unless it is made to appear that the nuisance thus cre- ated results in some substantial injury to him, different from that suffered by the public at large, and that the damage which he will sustain in consequence of the nuisance is irreparable in its character. The rule on this subject is settled. An individual has no right of action, in cases of nuisance created by obstructing a highway, unless he suffers some private, direct, and material damage beyond the public at large, as well as damage otherwise irreparable. Mere diminution of the value of the property of the party complaining, by the nuisance, without irreparable mischief, will not furnish any foundation for equit- able relief. Morris and JEssex H. M. Co. v. Prudden, 5 C. E. Gr. 530, 537. . . . The court might very properly, I think, at this point deny the com- plainant's application, on the ground that he has shown no such injury VOL. I. — 73 1154 HALSEY V. EAPID TRANSIT STREET RAILWAY CO. [CHAP. VI. as entitles him to relief by injunction, but as this course would leave the principal question of the case undecided, it should not, in my judg- ment, be adopted. The litigants, I thinls, are entitled to a decision on the question, whether or not the complainant's land in the street has been appropriated, by the erection of the poles, to a use not within the public easement. That is the question which received the principal at- tention of counsel on the argument, and which has occupied the greater part of the time devoted to the consideration of the case. The right of the defendant to use electricity as its motive-power is clear. The defendant was organized under a general statute, author- izing seven or more persons to associate themselves together, by articles in writing, for the purpose of forming a corporation to construct, main- tain, and operate a street railwaj' for the transportation of passengers. Rev. Sup. p. 363. The motive-power to be used by corporations formed under this statute is in no waj' limited or defined ; the statute does not say that they shall use animal, mechanical, or chemical power ; it says nothing at all on the subject of power ; hence, under the general grant of power to maintain and operate a street railway, it would seem to be clear that a corporation formed under this statute takes, bj- necessary and unavoidable implication, a right to use any force, in the propulsion of its cars, that may be fit and appropriate to that end, and which does not prevent that part of the public which desires to use the street, according to other customary methods, from having the free and safe use thereof While the rule is elementary that public grants are to be strictly construed, still it is also well established, that where a corpo- ration is authorized, by a general grant, to exercise a franchise or to carrj- on a business, and the grant contains no words either defining or limiting the powers which the corporation may exercise, it will take, by implication, all such powers as are reasonably necessary to enable it to accomplish the purposes of its creation. I am, therefore, of opinion, that if there was no other legislation on this subject than that just mentioned, and that it was made to appear that electricity could be used for the propulsion of street cars without preventing the free and safe use of the street by other means of transportation, the defend- ant would, by force of the statute under which it was organized, have a right to use electricitj' as its motive-power. But there is other legis- lation on this subject. Just a month prior to the approval of the statute under which the defendant was organized, another statute was passed, which declares that any street railway company in this State may use electric motors as the propelling power of its cars instead of horses ; provided, it shall first obtain the consent of the proper municipal au- thority to use such motors. Eev. Sup. p. 369, § 30. . . . By the terms of the statute just construed, no street railway cor- poration can use electricity as its motive-power until it has obtained the consent of the proper municipal authority. The defendant has such consent. It was given bj- resolution adopted by the common council and approved by the maj'or. The complainant contends that CHAP. VI.] HALSEY V. RAPID TRANSIT STREET RAILWAY 00. 1155 consent cannot be given by resolution, and insists tliat the munici- pality, in such a matter, can only act by ordinance. But the rule, accord- ing to the adjudged eases, is firmly settled the other way, and may be stated as follows : Where a statute commits the decision of a matter to the common council or other legislative body of a city, and is silent as to the method in which the decision shall be made, it may be made either by resolution or ordinance. Or — to state the rule in another form — where no method is prescribed in which a municipality shall exercise its power, but it is left free to determine the method for itself, it may act either by resolution or ordinance. One method is just as effectual in point of law as the other. State v. Jersey City, 3 Dutch. 493 ; City of Burlington v. Dennison, 13 Vr. 165 ; Butler v. Passaic, 15 Vr. 171. In view of the legislation and the action of the city authorities just discussed, it would seem to be clear, that the right of the defendant to use electricity as its motive-power stands, at least so far as the public are concerned, on a sure foundation. The poles and wires are to be used to apply electricity to the motors on the cars. They form a part of what is called the overhead system. In the present state of the art, they constitute a part of the best, if not the only means, by which electricity can be successfully used for street-ear propulsion. The proof on this point is decisive. Thomas A. Edison is perhaps the highest authoritj' on this subject in this country. He says, in an affi- davit annexed to the defendant's answer, that the onlj' method of ap- plying electricitj' for street-car propulsion which, up to the present time, has proved successful, electrically and commercially, is what is known in the art as the overhead system, whereby electricity is supplied to the motors on the cars from wires suspended above the cars. Other electricians saj' the same thing. The proofs also show, that there are over two hundred electric street railways in the United States either in operation or in course of construction, and that of those in operation nearly all use the overhead system. That, according to the proofs, is the best system, and the one in general use, and the onl}' one which, as yet, has proved successful. The facts just stated are in no way controverted, so, as the proofs now stand, the court is bound to declare, as an established fact, that the poles and wires are, in the present state of the electric art, necessaiy to the successful operation of the defendant's railway by electi-icity. The poles and wires are to be used as helps to the public in exercising their right of passage over the street. They form part of the means by which a new power, to be used in the place of animal power, is to be supplied for the propulsion of street cars, and they have been placed in the street to facilitate its use as a public way and thus add to its utility and convenience. The whole matter may be summed up in a single sentence : the poles and wires have been placed in the street to aid the public in exercising their right of free passage over the street. That being so, it seems to me to be clear beyond question, that the poles and wires do not im- 1156 HALSEY V. RAPID TRANSIT STREET RAILWAY CO. [CHAP. VI. pose a new burden on the land, but must, on the contrary, be regarded, both in law and reason, as legitimate accessories to the use of the land for the very purposes for which it was acquired. Thej'- are to be used for the propulsion of street cars, and the right of the public to use the streets by means of street cars, without making compensation to the owners of the naked fee in the street, is now so thoroughly settled as to be no longer open to debate. It would seem then to be entirely certain, that the occupation of the street by the poles and wires takes nothing from the complainant which the ^law reserved to the original proprietor when the public easement was acquired. This view is in strict accord with the uniform current of judicial opinion on this sub- ject. The question presented here for judgment has alreadj' been considered by the Supreme Court of Rhode Island in Taggart v. New- port Street Railway Co., 19 Atl. Rep. 326, and by the Circuit Court of the United States for the eastern district of Arkansas in Williams v. City Electric Street Railway Co., 41 Fed. Rep. 556, and by local courts in Kentuckj', Ohio, and Indiana, and in each instance the de- cision has been that the placing of the poles and wires in the street, for the purpose of propelling street cars by electricity-, did not impose a new servitude on the land, nor appropriate the land to a use not within the public easement. The decision in these cases was placed upon this manifestly just principle : that the question, whether a new method of using a street for public travel results in the imposition of an additional burden on the land or not, must be determined bj' the use which the new method makes of the street, and not by the motive-power which it emploj-s in such use. The use is the test and not the motive-power. And this principle exhibits, in a verj' clear light, the reason why it has been held that the placing of telegraph and telephone poles in the street irnposes an additional servitude on the land. They are not placed in the street to aid the public in exercising their right of free passage, nor to facilitate the use of the street as a public way, but to aid in the transmission of intelligence. Although our public highways have alwa3-s been used for carrj'ing the mails and for the promotion of other like means of communication, j-et the use of them for a like purpose, by means of the telegraph and telephone, differs so essentially, in every material respect, from their general and ordinary uses, that the general current of judicial authority has declared that it was not within the public easement. Massachusetts has, how- ever, by a divided court, held otherwise. Pierce v. Drew, 136 Mass. 75. . . . The poles and wires . . . are designed to facilitate the use of the streets as means of public passage, and thus increase their utility and conveni- ence to the public. But I do not believe it is possible to imagine any condition of facts which would make it lawful to erect a building, to be used as a dwelling, in a public way. Such use of the land would un- doubtedly be entirely foreign to the purposes for which it was acquired. There can, however, be no doubt, I think, that erections maj- be law- CHAP. YI.] HALSEY V. RAPID TRANSIT STREET RAILWAY CO. 1157 fully made in the streets of a city for the purpose of lighting them. They must be lighted at night to make their use safe and convenient, and to prevent lawlessness and crime. By the charter of Newark, power is given to its governing body, by express words, to light the streets, parks, and other public places. I have no doubt that in virtue of this power the city has the right to erect poles in the street just where the poles in question are. The poles in question are in fact to be used for the purpose of lighting the street. One of the conditions on which the city gave its consent to the erection of the poles is, that the defendant shall place on every other pole a group of five incandescent lights, of six- teen candle-power each, and furnish such light every night. This use of the poles and wires would, in my judgment, legalize their erection, but this is not their primary use. They were erected primarily and principally to facilitate the use of the street and add to its convenience as a public way, and it is upon this ground that I think it should be declared that their presence in the street invades no right of the complainant. The averment that the use of electricity by the defendant, as its pro- pelling power, will render the street so extremely dangerous as practi- callj' to destroj' it as a public way for any other use than that which the defendant may make of it, is not supported by the proofs ; on the contrary, I think it is very clearly shown, that an electric current of the volume the defendant will use, maj' be used with entire safety to everybody. ^ The complainant's application must be denied, with costs.'' » And so Patterson Ry. Co. v. Grundi/, 26 Atl. Rep..788 (N. J. Ch. 1893 ) ; Taggart et al.v. Newp. St. Ri/. Co., 16 R. I. 668 (1890) ; Dean v. Ann Arbor St. Rij. Co., 93 Mich. 330 (1892); ?ik'g Del. Ry. v. Mills, %h Mich. 634 (1891). See Poles and Wires, 4 Harv. Law Rev. 245 ; Keasbey, Electric Wires in Streets, cc. vi-xi. ; Randolph, Em. Dom. s. 403. In West Jersey Ri/. Co. v. Camden, Src. Ry. Co., 29 Atl. Rep. 423, 424 (N. J., June, 1894), the court (McGill, Chancellor), in dissolving an injunction, said : "The com- plainant seeks to sustain the injunction it has obtained as a protection against the invasion of its property rights which, under the Constitution, cannot be appropriated by the street railway without authority of law, and upon compensation. The rights which it deems to be threatened arise from its status, — first, as the owner of the fee of land occupied by Cooper Street ; and, second, as the owner of a steam railroad authorized to cross that street. The ownership of the fee in the soil in the public street is sub- ordinate to the public use thereof for the purposes of a highway. That use is an ea.sement of passage by every one over the highway, and every part of it, by any means which wiU not substantially and permanently exclude any one from the enjoyment of that common right. The means by which such use is to be law- fully had cannot be particularly defined, because, as suggested by Vice-Chan- cellor Van Fleet, in Halsey v. Railway Co., 47 N. J. Eq. 380, 20 Atl. 859, they will be as numerous as the improvements of the age and new wants, arising out of an increase in population or an enlargement of business, may render neces- sary. It has been repeatedly declared by the courts of this State that the use of the public easement of a highway by a horse railway is a lawful servitude, and therefore is not a new burden of the soil for which compensation must be made to the owner, the reason being that it is a convenient and beneficial means of pas- sage to the public which does not prevent the accustomed use of the highway by 1158 HALSEY V. EAPID TRANSIT STREET RAILWAY CO. [CHAP. VI. others. On the contrary, it so accommodates and facilitates that use that it more than compensates for the slight inconvenience that its rails and the necessity of permitting it to have the right of way over ordinary vehicles occasion. It is a means of use which stands in marked distinction from the steam railway (though the difference is only in degree), whose raised rails, noise, speed, and accompanying danger have led the courts to declare it to be incompatible with the common use of the highway, and therefore an additional servitude, for which the owner of the soil must be compensated. Citizens' Coach Co. V, Camden Horse R. Co., 33 N. J. Eq. 267. The electric street railway, as now ordinarily in use, by cars patterned in style and size after the horse railway car, stands, as a means of using the highway, in degree, between the horse and the steam railways. As in case of the horse railway, its rails do not materially interfere with the ordinary use of the highway. While its motiverpower, as usually applied, exceeds in capacity that of the horse railway, and the noise and danger attending its operation are greater, they do not extend to the power, noise, and danger of the steam locomo- tive, with its attendant train of cars. Its capacity for speed is great, but that is subject to municipal control. I do not now deal with the future possibilities of the elec- tric railway. It may readily be conceived that the greater motive-power it possesses may some time induce an attempt to use the highways by trains of cars, or by rails and cars of such character and size as to practically work all evils of the steam railway, and that there will be inaugurated systems of through cars, in furtherance of rapid tran- sit between distant points, which will crowd and burden the street to the inconvenience and obstruction of its other uses, without any accommodation to the ordinary local use of the street, and thus the degree of incompatibility with the common use may be so raised that the courts will be obliged to distinguish between methods of use, and de- clare against some as creating an additional servitude of the land occupied by the highway, the crucial test for that distinction being whether the use contemplated is compatible with the purpose for which- the common highway was originally designed. But such use is not at present the normal operation of the electric street railway, and it is not claimed that any such abnormal conditions exist in the case under consideration. " Basing their conclusions upon the contemplation of the customary use of the elec- tric street railway, the courts have regarded that, as operated by the trolley system, it is not an additional burden upon the soil in the common highway. Halsey v. Railway Co., supra; Taggart v. Railway Co., 16 R. I. 668, 19 Atl. 326 ; Railway Co. v. Mills, 85 Mich. 634, 48 N. W. 1007; Lockhart v. Railway Co., 139 Pa. St. 419, 21 Atl. 26; Hudson River Tel. Co. v. Watervliet Turnpike and Ry. Co., 135 N. Y. 393, 407, 32 N. E. 148; Railway Co. v. Wvnslow, 5 Olaio Cir. Ct. R. 425. The first cited of these cases is the utterance of this court. But it is a work of supererogation at this time to treat this question as more than an unsettled and doubtful one. It is at least that. The present application is to dissolve a preliminary injunction which will not be suf- fered to stand in the protection of the complainant from a use of the street by the defendant which may or may not invade its property rights. Unless the invasion be clear, the injnnction'must be dissolved. Citizens' Coach Co. v. Camden Horse R. Co., supra ; Hagerty v. Lee, 45 N. J. Eq. 255, 17 Atl. 826. " But it is urged that the poles, planted within the curb lines of the sidewalk to support the overhead wires, are at least an invasion of private property. The side- walks are parts of the highway, subject to the public easement. They are set apart principally for use by pedestrians. They are defined by the curb lines beyond which vehicles may not go, and at which, experience has taught, lamp, hitching, and awning posts, shade trees, and the like, may be planted without inconvenience either to pedes- trians or vehicles. At that place the lamp-post, which provides a means to light the highway and thus facilitate its use, has not been regarded as an additional burden upon the soil, and, upon similar consideration, it becomes difficult to perceive why the poles which accommodate a convenient use of the highway by a street railway are to be regarded differently. It is to be remembered, however, that the abutting land-owner ordinarily has something more of property than the ownership of the mere fee of the soil in the sidewalk. By the laws and usages of the State the sidewalk has in a de- gree been regarded as an appendage to and a part of the premises abutting upon it, and as so essential to the beneficial use of such premises that its improvement is prop- CHAP. VI.] STREET KAI.LWAY CO. V. DOYLE. 1159 STREET RAILWAY COMPANY v. DOYLE. Sdpkeme Court op Tennessee. 1890. [88 Tenn. 747.] Appeal in error from Circuit Court of Shelby County, L. H. Estes, J. Turley & Wright and Mi/ers & Sneed, for Street Railway Company. J^. P. Edmonson and J. P- Houston, for Doyle. Caldwell, J. Action of Doyle, an abutting lot-owner, to recover damages from the East End Street Railway Company for the alleged wrongful and unlawful construction and operation of its railway line along and upon the highway in front of his property. Verdict and judgment for plaintiff, and appeal in error by defendant. On the trial below the defendant requested the trial judge to instruct the jury as follows: "If the jury find that the defendant constructed its road through a part of the city to a point five miles into the country, in accordance with its contract with the city and county, road [its cars] being propelled by a steam motor, and used only for carrying passengers, stopping at street crossings to take on passengers, then the court charges you that its construction is not an additional servi- tude u{)on the streets or public roads from that contemplated in the dedication." The court refused to give this instruction, and his action in that behalf is assigned as error. This presents the question reserved in the Smith case (3 Pickle, 633), namely: Whether a railwaj', whose cars are propelled by "a dummy steam-engine,'' and used for passengers only, is a burden or servitude on the public street or highway in addition to that contem- plated in the original dedication of the land to public use. The reser- erly imposed upon the owner of the abutting land. Halsey v. Railwai/ Co., supra ; State T. Mayor, ^c, 37 *N. J. Law, 415; Weller t. McCormick, 47 N. J. Law, 397, 1 Atl. 516. It follows that if such improvement of the sidewalk, or constrnctions under it, which the land-owner shall lawfully make in pursuance of his duty to the public, or for his own private convenience, be expensive in character, so that substantial dam- age will result to him from the planting of the trolley poles, a serious question will arise whether there will not be a taking of his property for which he must be com- pensated, and a threateued invasion sufficiently serious to induce this court's interfer- ence. But that question is not presented in this case. It does not appear that the complainant has improved the sidewalk in front of its property so that the planting of the poles will substantially or seriously damage such improvement, or, indeed, that it has improved them at all. Another consideration borne in mind is that the abutting property owner has the right of ingress to and egress from his property by means of the street in a manner which will accord with the lawful purposes to which he devotes his property, and also to a reasonably available way through the highway to the seve- ral stories of his building in cases of emergencies, like fire. He also has the right to light and air from the highway. And he cannot be deprived of either of these rights by the placing of poles or erection of wires without compensation being made to him. Railway Co. v. Grundy, 51 N. J. Eq. 213, 223, 26 Atl. 788. No question touching these rights is presented at this time," — Ep. 1160 STREET EAILWAT CO. V. DOYLE. [CHAP. VI. vation was made in that case because the plaintiflF therein did not own the ultimate fee in the street, and was not, therefore, in an attitude to be affected by a decision of the question. For reasons stated in that case and in the Bingham case, to be hereafter cited, an abutting land- owner, whose line is the side and not the centre of the public highwaj', is not entitled to compensation for the imposition of an additional bur- den on the ultimate fee. Not owning the fee, he can justly claim no compensation for its impairment by a new burden imposed upon it. That is a matter for the owner of the estate, out of which the public easement was originally carved, and not for the abutting owner, whose title-papers take him only to the side of the highway, as was true in the Bingham and Smith cases. In the present case the plaintiff's line is in the centre of the highway, and to that line he owns the ultimate fee ; that is, he has such owner- ship of the soil that he may resume absolute possession and dominion of it to the centre of the highway whenever the original use for which the highway was set apart shall be finallj- abandoned. The appropriation vested the public with onlj' such part of his fee- simple estate as was necessarj' to the full enjoyment of the use then in contemplation. Consequently anything which diverts the highway from that use, or applies it to another or diflFerent use, is the imposition of an additional burden on the reserved estate of the owner, and con- stitutes a taking of his propert}-, for which he may demand and recover just compensation. So, then, the proposition contained in the request for special instruc- tion is a material one in this ease, and should have been given or refused, as it may be sound or unsound in law. It is well settled that an ordinary steam or commercial railway is, and that an ordinary street railwaj-, operated with horses, is not an additional servitude on the ultimate fee in the public street or highwaj', the former being a new and different use, while the latter is but an improved and consistent mode of enjoying the original or ordinarj' use. JBingham v. Railroad, 3 Pickle, 522 ; Smith v. Street Railroad, lb., 633, and authorities cited. The distinction between the use by the commercial railway and that by the horse railway is so wide and plain that it needs no further com- ment or illustration. Confessedly, the railwaj' involved in this case is on the line between the two — the equivalent of neither, but partaking largelj' of the nature of both. Like those upon the commercial railwaj', its cars are pro- pelled by a steam-engine, with its unavoidable smoke, noise, and vibra- tion, though in aless degree; and, like the horse-car line, it transports passengers only, stopping at short intervals upon the highwaj' to take them on and let them off, while the commercial railway carries both passengers and other freight, receiving and discharging them at regular depots farther apart. The size, weight, and speed of appellant's trains (consisting usually CHAP. VI.] STREET RAILWAY CO. V. DOYLE. 1161 of a small " boxed " engine and two coaches) are much less than those of the commercial railway trains ; but, at the same time, its trains are much larger, heavier, and more rapid in transit than the ordinary horse- car. Alike, the commercial railway and that operated by the appellant are obvious hindrances to other modes of travel and traffic rightfully enjoyed upon the public highway ; alike, they endanger the lives and property of individuals, for whom, in the aggregate, the original dedi- cation or condemnation was made. There is a difference, it is true ; but the difference is in the degree and not in the kind of interruption and peril. From the very nature of the case it is perfectly manifest to our minds that the presence of appellant's track and trains is entirely inconsistent with, and a perpetual embarrassment to, the ordinary use of the public highway. It is utterly impossible to operate such a railway with such trains without greatly obstructing and rendering more dangerous other busi- ness and travel usually seen and always allowable on a public highway. To the extent of this obstruction and this increase of danger by its appropriation of the highway for its own purposes, there is necessarily a diversion from and inconsistency with the original use ; and to that extent the construction and operation of appellant's road is the impo- sition of an additional servitude upon the ultimate fee of the owners of the soil in the public highway. This does not mean tliat the trains of appellant are to be banished as unauthorized by law, but simply that their presence and operation in the public liighway is an additional burden on the ultimate fee, for which the owner is entitled to compensation. The charter from the State and contract with the city and county authorize the proper construction and use of this railway, but they do not purport to warrant the appropriation of the owner's property with- out paying him therefor. Even if such were their purport and intent, that could not alter the case, and would afford no sufficient answer to the plaintiff's demand, because the Constitution forbids the taking of private property for public use without just compensation. Constitu- tion, Art. I., Sec. 21. The instruction requested was properl}' refused. Counsel for appellant have called our attention to the case of Newell V. Minn. L. & M. By. Co., 35 Minn. 112 (s. c. 27 N. "W. R, 839), which we find to be an authority for the proposition requested, and in conflict with the conclusion reached in this opinion. Not agreeing to the reasoning of that case, and the decision of a sister State being at most only persuasive authority, we prefer not to follow it. We have carefuUj' considered the several other assignments of error. None of them are well taken. Let the judgment be affirmed.' J Compare McQuaid v. Portl, ^c. Ry.'Co., 18 Oreg. 237 (1889). — Ed. 1162 sterling's appeal. [chap, vl is Sterling's Appeal, 111 Pa. 35, 40 (1885), where a Natural. Gas Companj' was proposing to lay its pipes under a country highway in front of the appellant's land, the court (Sterrett, J.) said : "As owner of the land traversed by the public road, he has a right to use it and the land on which it is located for anj' purpose that will not impede or interfere with the public travel. By appropriating land for the specific purpose of a common highway, the public acquires a mere right of pas- sage with the powers and privileges incident to such right. The fee still remains in the land-owner notwithstanding the public have acquired a right to the free and uninterrupted use of the road for the purpose of passing and re-passing ; and he may use the land for his own purposes in any way that is not inconsistent with the public easement. He may, for example, construct underneath the surface passage-wa\'s for water and other purposes, or appropriate the subjacent soil and minerals if an}', to any use he pleases, provided he does not interfere with the rights pf the public. In other words, the only servitude imposed on the land is the right of the public to construct and maintain thereon a safe and convenient roadway, which shall at all times be free and open for public use as a highway. It is in view of this servitude that dam- ages may be awarded to the land-owner. Laying and maintaining a pipe line, at the ordinary depth under the surface, necessarily imposes an additional burden on the land, not contemplated either by the owner or by the public authorities, when the land was appropriated for the purpose of a public road. It is a burden, moreover, which to some extent, at least, abridges the rights of the land-owner in the soil tra^ versed by the road, and hence it is a taking within the meaning of the constitutional provision requiring just compensation to be made for propertj' taken, injured, or destroyed. (Const. Art. XVI., sect. 8.) In some cases it is possible the injury may be consequential as well as direct. The constitutional provision embraces both. " In Bloomfield & Rochester Natural Gas Light Go. v. GalMris, 62 N. Y. 386, it was held that a corporation organized under an Act, simi- lar to ours, authorizing the formation of gas-light companies, has no authority to lay its pipes in a country highway without the consent of or without the appraisal and pa3'ment of compensation to the owner of the land. There is no reason why this should not be the rule with re- spect to public roads in the rural districts. As to streets and alleys in cities and boroughs, there are reasons why a different rule to some extent should prevail ; but that question is not now before us." CHAP. VL"1 McDEVITT V. PEOPLE'S NATURAL GAS CO. 1163 McDEVITT V. PEOPLE'S NATURAL GAS COMPANY. Sdpeeme Codet of Pennsylvania. 1894. [28 Atl. Rep. 948.] Appeal from Court of Common Pleas, Alleghany County. . . . S. Schoyer, Jr., and W. S. Miller, for appellants. Geo. C. Wilson and F. M. Magee, for the appellee. Williams, J. The People's Natural Gas Company was incorporated under the Act of 1885 (P. L. 29), known as the " Natural Gas Act," for the purpose of supplying natural gas to the citizens of Pittsburgh for use as fuel. The city had given its permission to the company to occupy the streets with its mains and service pipes, and had undertaken to impose certain modes and restrictions upon it, in the manner of con- ducting its business, that have since been held to be unauthorized by law, and therefore without force or effect. Pittsburgh's Appeal, 115 Pa. St. 4, 7 Atl. 778. Pending the litigation over this subject the com- pany began laying its mains into the city, and in July, 1886, entered upon Forbes Street, in the city, for that purpose. The appellees, who are the owners of lots on said street, then began proceedings by bill in equity to restrain the company from laying its gas main under the side- walk in front of their premises on Forbes Street. Relief was asked on two grounds : First, because the ordinances of the city of Pittsburgh had not been complied with by the company ; second, because the side- walks along the sides of the cartways were not within the meaning of the Act of 1885, and were no part of the highwaj-s, but were private propert}^ except for the purposes of passage by pedestrians. A pre- liminary injunction was granted, which was afterwards dissolved on condition that the company should execute a bond to indemnify the plaintiffs in that case for any loss they might sustain by reason of the laying of said main under the sidewalk in front of their premises. The bond was given, and the gas main laid. The plaintiffs then made application for the appointment of viewers to appraise the damages done to their property by the laying of the main under the sidewalk. Viewers were appointed, and an appraisement of the damages was made by them, which was appealed from. On a trial before a jury a verdict has been rendered against the company for a few cents less than $5,500, and the judgment entered thereon is now before us for review. . . . We are in a position, therefore, to enter unembarrassed upon a con- sideration of the subject brought to our attention by the first assign- ment of error. The Act of 1885 confers the right of eminent domain on companies formed for the transportation of natural gas. In the exercise of this right, they may enter upon private property, or upon public streets or highways. If the entry is upon private property, the companj' must trj' " to agree with the owner as to the damage properly- 1164 MODEVITT V. people's NATURAL GAS CO. [CHAP. VL payable for an easement in his or her propert)-, if such owner can be found and is sui juris." Failing to agree with the owner, the corpora- tion must tender him a bond to secure the payment of damages, and, if this is refused, must apply to the Court of Common Pleas of the proper county to approve the sufficiency of the bond. After this has been done, viewers may be appointed by the court to assess the dam- ages proper to be paid to the property-owner " for the easement appro- priated by the company." If the entr^' is upon a public street in a borough or citj', the corporation must first procure the consent of the municipality, expressed "by ordinance duty passed and approved." So long as the gas main follows the street, the entry upon and occupa- tion of the street is under, the authority of the municipalitj'. When- ever it leaves the street, and enters the private property of an individual, then the duty to negotiate with the owner arises, since entry upon and occupation of private property must be under authority- derived from the owner. Forbes Street was a city highway, and subject, like all other streets in a city, to urban servitudes ^ for the benefit of the public. In land taken for a highway in the countr3', the easement acquired by the public is only for the purposes of a way over the surface. For all other purposes the land may be occupied by the owner, so long as the public easement is not disturbed. We accordingly held in Sterling's Appeal, 111 Pa. St. 35, 2 Atl. 106, that the maintenance of a pipe line under such a highway imposed an additional servitude upon the land. It may be a very slight one, but to some extent it abridges the rights of the land-owner in the soil. Our Brother Sterrett said in that case : " As to streets and alleys in cities and boroughs, there are reasons why a different rule, to some extent, should prevail." These reasons are obvious. The necessity for drainage, for a water supply, for gas for purposes of lighting, for natural or fuel gas for heat, for subways for telegraph and other wires, and for other urban necessities or conveni- ences, gives to the municipalit}'' a control over the subsurface that the township has not. Property in a city is no less sacred than property in the country. The title of the owner is neither better nor worse because of the location of his land. But its situation maj- subject it to a greater servitude in favor of the public in a large, compactly built citj' than would be imposed upon it in the open country. The city has the right to use the streets and alleys, to whatever depth below the surface it may be desirable to go, for sewers, gas and water mains, and any other urban uses. In taking the streets for these necessary or desirable purposes, it is acting, not for its own profit, but for the public good. It is the 1 This phrase suggests, but has no real relation to the like expression in the Eoman law. " The leading division of prasdial servitudes in the civil law, but which appears to afford no practically useful distinction in the Enrfish law, is into urban and rustic servitudes, — the former including all servitudes relating to buildings wherever situ- ated ; the latter, all those relating to land uncovered by buildings, whether situated in town or country." — Gale on Easements (6th ed.), 22. Hunter, Roman Law (2d ed.), 415, 419, gives the right of aquce ductus as a rural servitude, and the right of passing a sewer through or below another's ground, as an urban servitude. — Ed. CHAP. VI.] MoDEVITT V. PEOPLE'S NATURAL GAS CO. 1165 representative of the inhabitants of the city, considering their health, their family comfort, and their business needs ; and every lot-owner shares in the benefits which such an appropriation of the streets and alleys confers. If the city abridges hisj3ontrol over the soil in and under the streets, it compensates him by making him a sharer in the public advantages that result from proper drainage, from an abundant water suppb') from the general distribution of gas, and the like. The dis- turbance of the owner's control over the subsurface of the streets is, in a legal sense, an invasion of his rights, but it is damnum absque injuria. He has no right of action against the municipality therefor. Dill. Man. Corp. §§ 691, 699 ; Ang. Highw. §§ 25, 312 ; Elliott, Roads & S. 299 ; Lockhart v. Railway Co., 139 Pa. St. 123, 21 Atl. 26 ; Sterling's Appeal, sicpra. The use of the surface is not restricted to the modes of travel in common use when the street is opened, but such improved methods of travel as the public interest requires may be adopted, with the consent of municipality'. In Rafferty v. Traction Co., 147 Pa. St. 579, 23 Atl. 884, we held that the operation of a street railway on a public street, when authorized by law, does not impose an additional servitude on the land, whether the railway company employs horses as motive power, or a cable, or electricity. It is a legitimate use of the surface in aid of the public right of passage over the streets. The Act of 1885 declares the transportation and supply of- natural gas to be a public use, confers upon the corporations organized under its provisions the right of eminent domain, and requires them to furnish natural gas to consumers along their lines, or within the districts sup- plied hy them, respectively. The appellant was organized under the Act of 1885. It came to the city of Pittsburgh proposing to furnish its citizens with natural gas as a fuel. The city was then to judge whether such fuel was desirable, and whether its introduction would be a convenience to its citizens so great as to justify the occupancy of the public streets by its mains and service pipes. This question was decided in favor of the company, and permission was given to use the streets of the city as a means of reaching customers. Under this per- mission, it might lawfully enter upon the streets, as we have already' seen, to lay its pipes, without liability to lot-owners therefor. But it is contended that the sidewalks are not a part of the street, and that, in laying its pipes under the sidewalk, the gas company has entered private property by virtue of its power of eminent domain, and must treat with the owner for the damages it may have done. This con- tention cannot be sustained. The Act of 1847 gives to cities the power "to cause to be graded, paved or macadamized any public street, lane or alley or parts thereof which is now or may hereafter be laid out and opened in anj' of the said cities . . . and to regulate, grade, pave and re-pave, curb and re-curb, the said footways and sidewalks," and to make regulations concerning the deposit of lumber, building material, or other articles " on any of the said footways, sidewalks or other por- tions of the said streets or alleys." The street includes the whole of 1166 MCDEVITT V, people's NATURAL GAS CO. [CHAP. VL the land laid out for public use as a highway. The city determines how much of it shall be devoted to a cartway, and how much to a foot- way, and regulates the grading and paving of both. The separation of one from the otlier by a line of curbing is for the security of that part of the public that passes along the streets on foot, and for no other purpose. The municipality has the same control over the side- walks that it has over the carriageways. Livingston v. Wolf, 136 Pa. St. 533, 20 Atl. 551. The learned judge of the court below took the same view of this question, and affirmed the defendant's first point, which asked an instruction that the " defendants have the same right in the sidewalks as they would have in that portion of the street lying between the curbstones." The situation of the defendant under this ruling was precisely the same as it would have been had the gas main been laid under the cartway. , The defendant's second point asked the court to say that the lot- owners on Forbes Street had no rights in the street except such as were subservient to the public use, under the direction or sanction of the city, and that as the defendant's gas-main was laid for a public use, under the authority of the Act of 1885, and with the consent of the municipal government, the lot-owners along Forbes Street were not entitled to recover damages for the use of the street. This point the learned judge refused. The logical result of this ruling is to put the rights of the lot-owner in the street in front of his premises above the rights of the public represented by the municipality. In other words, it puts the urban servitudes in a subservient position, and makes the imposition of each of them upon a citj' street an additional servitude upon the land of the adjoining lot-owner, for which he has a right of action. This is not the law in this State, as is shown by the authorities already cited. As applicable to a country highway, it would be quite right, for under the general road laws the public ease- ment in such a highwaj' is for passage over the surface only. Land taken for a street in a city is subjected to a very different easement, because of the sanitary and business needs of a citj^ ; and the extent of the easement depends upon the municipal judgment as to the extent of occupancy necessary to subserve the health, the comfort, and con- venience of the citizens. Elevated structures that interfere with the passage of light and air stand on different ground. Jones v. Railroad Co., 151 Pa. St. 30, 25 Atl. 134. In this case no entry was made upon the close of the plaintiffs. The pipe is buried in the street, at a depth of four feet under the surface. Access to the plaintiff's property has not been affected. There is no physical change made in it, or in the street on which it fronts. If the lots are affected in value, it is as a con- sequence of the proximity of the gas line, and not because of anything done to or upon them. Their remedy, under such circumstances, is by action, or upon the bond given to secure them against loss by reason of the dissolution of the injunction. It is not by the appointment of view- ers, and the proceeding provided by the Act of 1885 for the assessment CHAP. TI.] MARCHANT V. PENNSYLVANIA RAILROAD CO. 1167 of damages done by an entry upon private property under the right Of eminent domain. The 1st assignment of error is sustained ; also, the 4th, 5th, 7th, 8th, and 9th assignments. The judgment is reversed, and the order appointing viewers is set aside. MARCHANT v. PENNSYLVANIA EAILEOAD CO. Supreme Court of Pennsylvania. 1894. [14 Sup. Court Rep. 894.] M. Hampton Todd, for plaintiff in error. A. H. Wintersteen, and Wayne MacVeagh, for defendant in error. Me. Justice Shiras, after stating the facts in the foregoing lan- guage,'' delivered the opinion of the court. The Pennsylvania Railroad Company, a corporation under the laws of the State of Pennsylvania, and invested with the privilege of taking private property for its corporate use, erected in May, 1881, and has since maintained, a viaduct or elevated roadway and railroad thereon along the south side of Filbert Street in the city of Philadelphia. On the opposite or north side of Filbert Street the plaintiff below was the owner of a lot or parcel of land, whereon was erected a large four- story building, at that time occupied as a dwelling and business house. The elevated railway did not occupy any portion of the plaintiff's land, nor did it trench upon Filbert Street where it extends in front of the plaintiff's property, which is situated on Filbert between Seven- teenth and Eighteenth Streets ; but where the elevated road, m its course westward, reaches Twentieth Street, it trends to the north, and is supported over the cartway of Filbert Street by iron pillars having their foundations in that street inside the curb line, and thus extends westwardly to the Schuylkill River. Opposite the plaintiff's lot the railroad structure occupies land owned by the company. The plaintiff, by his action in the Court of Common Pleas, sought to recover for injuries caused to his property by the smoke, dust, noise, and vibration arising from the use of the engines and cars, the neces- sary consequence and incidents of the operations of a steam railway. The trial court refused the defendant's prayer that " the jury should 1 Compare Kincaid v. Indiana Nat. Gas Co. et al., 124 Ind. 577, 579 (1890), in which it was held that, subject to the right of the public to pass and repass, " the owner of the fee of a rural road retains all right and interest in it." The court (Elliott, J.) said : "There is an essential distinction between urban and suburban highways, and the rights of abutters are much more limited in the case of urban streets than they are in the case of suburban ways." See Randolph, Em. Dom., ss. 401, 413. —Ed. 2 The statement of facta is omitted ; they sufficiently appear in the opinion. — Ed. 1168 MAKCHANT V. PENNSYLVANIA EAILEOAD CO. [CHAP. VI. be instructed that the defendant, under its charter and supplements in evidence, had full lawful authority to create and operate the Filbert Street extension or branch described in the declaration without incur- ring any liability by reason thereof for consequential damages to the property of the plaintiff, the uncontradicted evidence being that none of the said property was taken by the defendant, but that the entire width of Filbert Street intervenes between the railroad of the defend- ant and the nearest point thereto of the property of the plaintiff ; " and instructed the jury that the only question for them -to determine was the amount of depreciation in value of the plaintiff's property caused by the operation of the railroad, and that .in estimating the damages they should consider the value of the property before and its value after the injury was inflicted, and allow the difference. The plaintiff recovered a verdict and judgment. The judgment was re- versed by the Supreme Court of Pennsylvania (13 Atl. 690), because of the action of the trial court in refusing to grant the defendant's prayer for instruction, and, in effect, because the plaintiff had no cause of action. By the specifications of error contained in this record we are asked to reverse the judgment of the Supreme Court of Pennsyl- ■ vania because the plaintiff in error was thereby deprived of her prop- erty without compensation, because she was thereby deprived of the equal protection of the laws, and because she was thereby deprived of her property without due process of law. . . . The first proposition asserted by the plaintiff, that her private prop- erty has been taken from her without just compensation having been first made or secured, involves certain questions of fact. Was the plaintiff the owner of private property, and was such property taken, injured, or destroyed by a corporation invested with the privilege of taking private property for public use ? The title of the plaintiff to the property affected was not disputed, nor that the railroad company was a corporation invested with the privilege of taking private property for public use. But it was adjudged by the Supreme Court of Penn- sylvania that the acts of the defendant which were complained of did not, under the laws and Constitution of that State, constitute a taking, an injury, or a destruction of the plaintiflTs property. We are not authorized to inquire into the grounds and reasons upon which the Supreme Court of Pennsj-lvania proceeded in its construc- tion of the statutes and Constitution of that State, and, if this record presented no other question except errors alleged to have been com- mitted by that court in its construction of its domestic laws, we should be obliged to hold, as has been often held in like cases, that we have no jurisdiction to review the judgment of the State Court, and we should have to dismiss this writ of error for that reason. But we are urged to sustain and exercise our jurisdiction in this case, because it is said that the plaintiff's property was taken " with- out due process of law," and because the plaintiflT was denied " the equal protection of the laws," and these propositions are said to pre- CHAP, VI.] MARCHANT V. PENNSYLVANIA KAILROAD CO. 1169 sent Federal questions wsing under the Fourteenth AmepdmeBt of the Constitution of the United States, to which our jurisdiction extends. It is sufficient for us in the present ease to say that, even if the plaintiff could be regarded as having been deprived of her prpperty, the proceedings that so resulted were in " due process pf law," The plaintiff below had the benefit of a full aud fair trial in the several courts of her own State, whose jurisdictjpn was invoked by her- self. In those courts her rights were mea,sured, not by laiys made to affect her individually, but by general provisions of law appUpable tp all those in like condition. . . . The plaintiff in error further contends that by the proqeedings in the courts of Pennsylvania she was denied the equal prptegtion of the laws. We understand this proposition to be bfised on the allegatipu that those suitprs whose property a.butted on Filbert Street between the Schuylkill River and Twentieth Street, where the elevated road actually occupies the territory of Filbert Street, were allpvyed by the Pennsyl- vania courts to recover damages for the injury thus occasioned tp their property, while the plaintiff, and those in like case, whose property abutted on Filbert Street where it was not occupied by the railroad structure, which was erected on the opposite side of the street, on land belonging to the railroad company, were not permitted to recover. The diversity of result in the two classes of cases is supposed to show that equal protection of the laws was not affprded to the unsuccessful litigants. It is not clear that the facts are so presented as to author- ize us to consider this question. Neither in the plaintiff's declaration, in the instructions prayed for, nor in the charge of the trial court, do we perceive any finding or admission that there were suitors, holftng property abutting on Filbert Street, who were held entitled to recover for damages occasioned by the elevated railroa4. However, the third assignment of error is as follows : " The Supreme Court pf Pennsyl- vania erred in deciding that the present cause was different in principle from the case of Mailroad Co. v. Duncan, 111 Pa- St- 352, 5 Atl. 74?, and Railroad Co. v. Miller, 132 U. S. 75, 10 Sup. Ct. 34, The effect of said decision is that, under the same constitutional guaranties, it gives to one person a right to compensation for property damaged by the defendant in the exercise of its power of eminent domain, and denies it to another ; and as, in this instance, the decision is against the plaintiff's right to compensation for the injury to her property by the defendant, she is thereby deprived of the equal protection of the laws." The counsel of defendant in error, in their printed brief, make no point that the facts are not shown by this record, but discuss the question on its merits. We are referred in the printed briefs to our own case of Mailroad Co. v. Miller, 132 U. S. 76, 10 Sup. Ct. 34, in the report of which it appears that one Duncan, whose property abut- ted on Filbert Street, where that street was occupied by the elevated railroad in question, was permitted by the State courts to recover for VOL. I. —74 1170 NEWBY V. PLATTE COUNTY. [CHAP. VI. damages suffered by having been deprived of access to, and the free use of, Filbert Street. Conceding, for the sake of the argument, that the facts are as alleged by the plaintiff in error, we are unable to see any merit in the contention that the Supreme Court of Pennsylvania, in distinguishing between the case of those who, like Duncan, were shut off from access to and use of the street by the construction thereon of the elevated railroad, and the case of those who suffered, not from the construction of the railroad on the street on which their property abutted, but from the injuries consequential on the operation of the railroad, as situated on defendant's own property, thereby deprived the plaintiff of the equal protection of the laws. The two classes of complainants differed in the critical particular that one class suffered direct and im- mediate damage from the construction of the railroad in such a way as to exclude them from the use of their accustomed highway, and the other class suffered damages which were consequential on the use by the defendant company of their franchise on their own property. . . . It should also be observed that the plaintiff does not complain that, by any legislative enactment, she has been denied rights granted to others, but she attributes error to the judgment of the Supreme Court of Pennsylvania in construing that provision of the Constitution of the State which gives a remedy for property injured by the construction of a railroad, as not extending the remedy to embrace property injured by the lawful operation of the railroad. It is not pretended that by such a construction of the law the plaintiff has been deprived of any right previously enjoyed. The scope of the remedy added by the Con- stitution of 1874 to those previously possessed by persons whose prop- erty is affected by the erection of a public work is declared by the court not to embrace the case of damages purely consequential. In so holding it does not appear to us that the Supreme Court of Pennsylvania has either deprived the plaintiff of property without due process of law, or denied her the equal protection of the law, and its judgment is accordingly affirmed. NEWBY V. PLATTE COUNTY. Supreme Court of Missouri. 1857. |25 Mo. 258,1] P a. Harden, for appellant. I. Newby was entitled in damages to the full value of his land appro- priated and taken for the road, and the court in the assessment thereof had no right to take into consideration the probable or incidental 1 This case contains nowhere any statement of facts. — Ed. CHAP. VI.] NEWBY V. PLATTE COUNTY. 1171 advantages which might or should accrue to Newby from the road in its enhancement of the value of his adjacent lands. (See Constitution of Missouri, article 13, section 7 ; 5 Dana, 32 ; 7 Dana, 87 ; 9 Dana, 114.) Leonard, J., delivered the opinion of the court. . . . The 17th section of the 2d article of the general road law of 1845 (E. C. 1846, p. 974) provides that, in assessing the land-owner's damages, the commis- sioners " shall take into consideration the advantages as well as the disadvantages of the road to such persons." The present road was authorized to be established as a State road by the special Act of the 7th February, 1849, and the proceedings for this purpose are directed to be according to the general road law of 1845, and the amendatory Act of the 25th of January, 1847. On an appeal from the County Court, the plaintiffs damages as a land-owner were assessed in the Circuit Court by the court in lieu of a jury, on an agreed statement of the facts, and the Circuit Court, when applied to for that purpose, refused to declare that the plaintiff " was entitled to the value of the land taken for the road, and that the advantages of the road to him could not be set off against his claim for the value of the land," and decided that the plain- tiff was not entitled to any money compensation for the land taken for the public use ; and thus the validity of the statute provision to which we have referred is submitted to our judgment by the present proceed- ings. If the State government possessed no authority over private property except that of taking it for the public use upon rendering the owner a just compensation, it would seem that, under this provision, the owner would be entitled to the full money value of his property without any deduction. The rule of constitutional law being that private property cannot be taken for public use, by the authority of the legislature, without a just compensation, it follows that what is to be considered as compensation within the meaning of the clause is a ques- tion of law for the courts, and not a matter for the legislature ; and, under such a constitution as we have supposed, with no other power over private property than that of taking it for the public use upon making the owner a just compensation, it would be quite beyond the scope of the legislative authority to declare that the benefit derived by i.ne land-owner from the road is the just compensation secured b.y the Constitution. If the provision were that the owner should be indemnified against the act complained of, it might be insisted, that, in ascertaining the extent of the damages sustained, the advantages as well as the dis- advantages resulting from the act must be taken into consideration ; and this seems to be the view taken of the subject by the Supreme Court of Ohio, in Simonds and others against Cincinnati (14 Ohio, 174)-, jnder the Constitution of that State, which expressly requires the compensation to be made in " money." But that is not the language nor the scope of the provision. The declaration of the Constitution is, tuat no private propertj' ought to be taken or applied to public use without a just compensation ; and this would seem to imply that the party should receive the value of his propertj' in money. The transac- 1172 NEWBY V. PLATTE COUNTY. [CHAP. VI. tion is a forced sale to the public, and the Constitution in this provision secures to the owner the just price of his property as the only condition upon which he can be lawfully deprived of it. The government, however, possesses other powers over private property beside the right of eminent domain ; and if in the exercise of the taxing power, the government may lawfully require the adjacent land-owners to contribute towards paying for the right of way in pro- portion to the benefit each will derive from the road, the present enact- ment, so far as it directs the advantages of the road to be deducted from the price of the land, must perhaps be considered as an exercise of the taxing power. This law is, indeed, nothing more in effect than the exercise of both powers of government in the same breath — that of taking the land by the right of eminent domain, and of requiring, under the taxing power, the adjacent land-owners to contribute to the cost of it in proportion to the benefit each will derive from the road. We have an instance of express legislation of this character in the St. Louis Charter Amendment Act of the 23d of Februarj', 1853, where it is pro- vided that when it shall become necessarj', in order to improve any street, &e., to take private property, the jury shall first ascertain the value of all the ground proposed to be taken, and then assess against the citj', for the payment of this debt, a sum equal to the value of the improvement to the general public ; and the balance of the money necessary to pay for the ground they shall assess against the owners of the lots fronting on the streets according to the value of their lots, and in the proportion that they will be respectively benefited by the improve- ment. Under this Act, and the ordinance passed to carr}' it into execu- tion, when the whole lot is taken, the owner receives the whole value of it in money ; but when part only is taken, the value of the part taken and the amount of benefit the owner will derive from the improvement of the street in respect to the residue of his lot are assessed separately, and one being set off against the other, the owner receives or paj's the balance as it turns out to be for or against him. Under the St. Louis Act, the city pays towaixl the cost of the ground a sum equal to the value of the improvement to the city generally, and the residue of the cost is apportioned among the adjacent lot-owners in proportion to the benefit derived respectively from the improvement. Under the pro- visions of the general road law, the adjacent land-owners pay towaixJs the cost of the right of way the value of the improvement to themselves — not exceeding, however, the value of the land taken from them respectively, — leaving the balance of the cost to be paid bj' the county. Under the St. Louis Act, the sums to be paid by and to the adjacent lot-owners are assessed separatel}', and when part only of a proprietor's lot is taken, one amount is set off against the other, and the balance only is settled in money. Under the road law, the benefit is in every case deducted from the value of the land taken, and the balance only is formally ascertained and declared ; thus what is formally gone through with under the St. Louis Act, step by step, is done substantially at one CHAP. VI. j NEWBY V. PLATTE COUNTY. 1173 blow under the road law. In both cases the legislature exercises the same power over private propertj-, and no other ; and although in one case the language employed has a more direct reference to the taxing power than in the other, we are not at liberty, we think, on that account to treat the provision in one act as a prohibited invasion of private property, and to give eflfect to it in the other as an exercise of a lawful power. If the legislature may, under the taxing power, lawfully require the contribution, and if this provision in the road law be substantially such a requisition, as we think it is, we are not at liberty to treat it as a nullity, but must give eflfect to it accordingly. In a case now before us at St. Louis {Garrett v. St. Louis), under the St. Louis Act before referred to, part of the plaintiflf's lot was taken for the improvement of Main Street, and he insists upon being paid the whole assessed value of the part taken, without any deduction on account of the assessment against him for benefits in respect to the residue of his ground ; and the question there is as to the validity of what is in that case express taxa- tion for a local object, — while in the present case it is as to the validity of what is, in eflTect, though noib in words, a like assessment for a like purpose. In both cases the only question, as it appears to us, is as to the com- petency of the legislature to require the adjacent land-owners to contri- bute towards the cost of the ground for a road or street, in proportion to the benefit ; or, to state the proposition in more general terms, it is as to the constitutional validity of taxes imposed by a subordinate authority in the State upon an arbitrary district of country, in proportion, not to the value of the property, but to the benefit to be derived by the owner from the improvement. Upon this question we begin by remarking that the power of taxation, as the more subordinate power of taking private property for the use of the public, without any reference to the owner's duty to contribute to a common burden, exist and are exercised of necessity in every nation as legitimate powers of civil government, and appertain to our State gov- ernment as part of the legislative power, without any express grant for that purpose. The right of eminent domain is, in its nature, capable of being limited and regulated in some degree by general rules, and has accordingly, as we have already remarked, been confined in all civilized States by the practice of government, and in our American republics by express constitutional provision, to cases of public necessity and con- venience, on the payment to the owner of a just compensation. But the power of taxation is more indefinite in its character, and less capable of limitation by general rules of law, — the amount of money to be raised, and to what purpose it shall' be applied, and the persons and things that shall contribute to it and according to what rule of appor- tionment, are all matters left almost of necessity to the discretion of the legislative department, — the only express limitations in our Con- stitution upon the taxing power being that " all property subject to taxation shall be taxed in proportion to its value," and the prohi- 1174 NEWBY V. PLATTE COUNTY. [CHAP. VI. bition against taxing the lands of non-residents higher than residents' lands. The validity of the enactment now under consideration, considered as an exercise of the taxing power, is not questioned upon the ground of its being a local tax. There are everywhere, in all civilized States, two sorts of public expenditure, — those that concern the whole State in general, and those that are confined to its civil subdivisions and lesser localities, and both justice and convenience require, and have accord- ingly introduced into the practice of all governments, corresponding general and local taxation. (Domat, Pul* Law Book, I., tit. 6, sees. 1 and 0.) Our own practice, corresponding with the general practice of the other States, has been to meet the general burdens by general taxation, and to make it the dut^- of the local authorities to raise and expend within their respective limits, under such restrictions as the legislature should deem proper, the taxes applicable to the local public service. The manifest equity and convenience of these local assess- ments, for the accomplishment of local purposes, has brought them more and more into general use, confining them, in very many instances, to very small localities ; and no one now questions their validity, although at an early day the constitutional validity of taxation levied hy subordinate tribunals was questioned, on the ground that it was levied without the consent of the people or their representatives ; or, in other words, that it was an exercise of the legislative power of taxation which it was not competent for the legislature to delegate to others. (County Levj' Case, 5 Call, 139.) That objection, however, was over- ruled in the case in which it was made, and has never been regarded in American legislation. The objections that have since been relied upon to these local assess- ments for local improvements are that it is not "legitimate taxation," and that in this State, under our Constitution, they are not valid as taxes, because they are apportioned according to the benefit and not according to the value of the property as required by the Constitution. The position assumed is that ''legitimate taxation is limited to the imposing of burdens or charges for a public purpose equally upon the persons or property within a district known and recognized by law as possessing a local sovereignt}-, for certain purposes, as a State, countj-, city, town, village, &c. ; " and consequentl}' road and street and other similar assessments for local improvements are no other than the taking of private property, under color of the taxing power, without providing the compensation required by the Constitution. This idea, it is believed, was first formally announced in New York, in the case of The People v. Mayor of Brooklyn, 6 Barb. 21'6, and is said to have originated in the Court of Appeals of Kentucky, in the case of Sutton's JETeirs v. City of Louisville (5 Dana, 28). Tlie New York case was an assessment on a lot-owner in proportion to the benefit for the purpose of build- ing a sewer, and the Kentuckj' case was a similar assessment for the extension of a street, and both assessments were decided to be uncon- CHAP. VI.] NEWBY V. PLATTE COUNTY. 1175 stitutional, as not being legitimate exercises of tlie taxing power. The New York case, however, was reversed on appeal, in the Court of Appeals (4 Comst. 428), and the doctrine itself seems to have been subsequently abandoned in eflfect in Kentucky, in the case of the City of Lexington v. McMillain's Heirs, 9 Dana, 513, by the same court, com- posed of the same judges, in which it originated. In the latter case, Lexington was authorized by its charter to cause the streets to be paved at the expense of the lot-owners in each square, either upon the application of the greater part of them, or without such application by the unanimous consent of the mayor and council; and one question being as to the validity of an assessment that had been made pursuant to an ordinance passed with the required unanimity, the court held it valid, suggesting that each square might be considered an independent municipality for this purpose. Upon principle, there is nothing, we think, in the objection. In distinguishing taxation from the taking of private propertj' under the right of eminent domain, it has been well observed that taxation exacts property from individuals as their respective shares of contribu- tion to a public burden. Private property taken by the right of eminent domain is not taken as the Owner's share of such a contribution, but as so much beyond it. Taxation operates upon a class of persons or things, and by some rule of apportionment. The exercise of the right of eminent domain operates upon individual persons or things, and without any reference to what is exacted from others. The present tax, if we may consider it as one, operates upon a class of persons, — the owners of the several tracts of land over which the road passes, — is assessed against them in proportion to the benefit each derives from the improvement, and is exacted from them as their respective shares of contribution to the establishment of the road. We may remark, too, that taxation of this character has prevailed too long and too exten- sively to be treated as illegitimate, or denounced as legislative spoliation under the guise of the taxing power. It prevailed in England several centuries ago ; and the assessments made there by the commissioners of sewers on the lands affected by their operations was taxation of this character. (28 Hen. VIII., chap. 5, sec. 5.) In Massachusetts, from an early period, meadows, swamps, and lowlands were required to be assessed among the proprietors to pay the expense of draining them (Rev. Stat, of Mass. p. 673), and in Connecticut the same power was given to commissioners for draining marshy lands (Conn. Stat. ed. 1839, p. 544). It is said by the judge, who delivered the opinion of the Court of Appeals in the Brooklyn case before referred to, that the system of local taxation for local improvements, by assessing the burden according to the benefit, had prevailed for more than one hundred and fifty years, and that this power was given to the corporation of New York in 1691, and had since been conferred on nearly every city and on many of the villages of the State. We are informed in the opinion of the Supreme Court of Kentuckj', in the Lexington case before referred to, 1176 NBWBY V. PLATTE COUNTY. [CHAP. VI. that the assessment of benefits fbr the improvement of streets had been Sanctioned as constitutional in Louisianaj South Carolina, and Penn- sylvania; had been virtually recogaized by the Courts in New York and Massachusetts, and had never been declared unconstitutional by any court, so far as Ihej' had beert able to ascertain ; and we may our- selves remark that similar taxation is authorized by law in New Jersey, Maryland^ Virginia, Ohio, aiid Indiana, and either acquiesced in by these communities or adjudged valid by their courts. Finally, the validity of local assessments of this character was considered and affirmed in this court at our lafet St. Louis fill term, in the case of Lockwood v. The City of Stt Louis, 24 Mo. 20, where the assessment was to construct a common sewer) and was levied on all the lots in an arbitrary district, ^- laid off bj' the corporation for the purpose of constructing the sewer. . i . Butj although we concur with the Circuit Court in thinking this section of the road law constitutional, yet the judgment must be reversed upon another ground. The only facts agreed between the parties, and upon which the decision was pronounced) were, that the road ran " through the plaintiff's land one hundred and twenty-^two polesi and occupied one and one-half acres of ground, worth fifteen dollars per acre j " but it was not admitted that the road was any benefit to the party, and the courtj we think) could hot ihfer this as a matter of law from the agreed facts, and pronounce against allowing the plaintiff any compensation for the property of which he was deprivedi As to the pfoper rule by which to compute the benefits in cases of this character, it may not be Improper, as the case is to be remanded for further proeeedingsi, to remark that the Supreme Court of Massachu- setts, in the case of Meaoham v. The Fitehburg Bailroad Co., 4 Cush. 392, declared that the benefits to be charged against the adjacent land^ owners and deducted from the eompehsation to be paid to them were the direct atid peculiar benefits that would result to them in particular, and flot the general benefit that they would derive in common with other land-owners from the building of the road ; and this seems to be sub- stantially the principle adopted by our own legislature as just and equi- table in the St. Louis Stl-eet Improvement Act before referred to, and ought perhaps to be followed in the construction of this provision of the road law. In reference to the disadvantages, it is to be observed that the Constitution only secures to the owner the price of his property, but it is competent for the legislature to go bej-ond this, and not only pay him the value of his property, but also indemnify him against any damage that will result to him from the use to which it is to be applied } and this they have effected by requiring the disadvantages as well as the advantages to be taken into cunsideration in the assessment of the damages. Judge RtLAND concurring, the judgment is reversed, and the cause remanded. Scott, J., dissenting. I dissent from so much of the opinion of the majority of the court as maintains that, in the Computation of the dam- ages to be paid to the owner of the property taken for public use, regard CHAP. VI.] WAGNER V. GAGE COUKTY. 1177 must be had to the advantages and disadvantages resulting to such owner from the use to which the property may be applied. The value in cash of the thing talten, considering its place and situation, is the compensation contemplated by the Constitution to which the owner, as such, is entitled. The legislature may compensate disadvantages with advantages, but the value of the property taken must be paid for in money.' In Wagner v. Gage County, 3 Neb. ^37 (1874), on appeal from the award of commissioners to assess damages from the laying out of a road, it appeared that the presiding judge below had instructed the jury as follows : — " In your consideration of the evidence, you will not take into con- sideration any consequential damages that might possibly occur by" reason of the location of such road, nor what might be consequential costs of erecting fences ; but the measure of damages is the difference between the market value of the premises immediately before the road was located, and the market value thereof immediately after its location." Tlie jury found a verdict for the defendant ; whereupon the plaintiff filed a motion for a new trial, which being overruled by the court, judgment was rendered on the verdict. To reverse this judgment the cause was brought to this courW by petition in error. iV. IT. Griggs and W, H. Ashhy, for plaintiff in error. 8. G. B. Dean and W. J. Galbraith, for defendant in error. Maxwell, J. Section thirteen of the bill of rights in our Constitu- tion declares that " the property of no person shall be taken for the public use without just compensation therefor;" and that section is only declaratory of the common law. . . . Our statutes (General Statutes, 955) provide the mode of locating new roads, and section twenty-four of the Chapter provides for com- pensation to the owner of the land. The question arises, what is just compensation ? All the cases seem to concur in excluding mere general and public benefits, which the owner of the land shares in common with the rest of the inhabitants of the vicinity, from being taken into consideration in estimating com- pensation. While this is the law in theory, in several of the States it seems to be disregarded. In Massachusetts the court held, "the jury might and ought to have returned that the party sustained no damages, if such was their con- viction ; the benefit the owner of the land derived from the laying out of a way over it may often exceed the value of the land covered by the way." Commofmealth v. Sessions of Middlesex, 9 Mass. 388. And the same doctrine has been held in Vermont. Livermore v. Jiz- 1 Affirmed in State v. Citi/ of Kansas, 89 Mo. 34 (1886). Compare Kennedy y. Indianapa/is, 103 U. S. 599 ; Eloomington v. Latham et al., 142 111. 462, and the cases on special assessmients, infra, pp. 000 to OOO. — Ed. 1178 WAGNER V. GAGE COUNTY. [CHAP. VI. maica, 23 Vt. 361. And in Pennsylvania the court held, "the more common mode of estimating land damages unquestionably is, to give the company the speciQc benefit caused to land, a portion of which is taken, in the enhancing the value of the same, and only to allow the land-owner such a sura as will leave him as well off in regard to the particular land, as if the works had not been built, or his land taken. This is done by giving the land-owner a sum equal to the difference between what the land would have sold for before the road was built, and what the remainder will sell for after the construction." Harvey V. Lackawanna & Bloomshurgh R. H., 4'f Pa. St. 428 ; Troy & Bos- ton B. B. V. Lee, 13 Barb. 169 ; Matter of Furnam Street, 17 Wend. 649. The Supreme Court of Ohio, since the adoption of the Constitution of 1851, hold that in all cases compensation must be made for the land actually taken. The court says, in regard to the provisions of the Con- stitution providing for compensation, " by the one, the compensation is to be assessed without deduction for benefits, and by the other irre- spective of benefits, and by each a full compensation is required. Now, when is a man fully compensated for his property? Most clearly and unquestionably when he is paid its full value, and never before. The word ' irrespective ' relates to this full compensation, and binds the jury to assess the amount without looking at or regarding any benefits contemplated by the construction of tjjie improvement. When this is done, and this consideration wholly- excluded, the jury have nothing to do but ascertain tlie fair market value of the property taken. . . . Whether the property is appropriated directly by the public, or through the intervention of a corporation, the owner is entitled to receive its fair market value at the time it is taken, as much as he might fairly expect to be able to sell it to others, for if it was not taken, and tliis amount is not to be increased from the necessity of the public or the corporation to have it, on the one hand, nor diminished from any neces- sity of the owner to dispose of it, on the other. It is to be valued precisely as it would be appraised for sale upon execution, or by an executor or guardian, and without any regard to the external causes that may have contributed to make up its present value." Oiesy v. G. W. & Z. R. R. Co., 4 Ohio St. 330-332. This seems to us to be the only just and equitable rule, requiring in all cases that compensation shall be made for the fair market value of the land actually taken, while special benefits may be set off against any local or incidental injury to the residue of the tract. Section nineteen of the bill of rights of the Ohio Constitution pro- vides, that compensation for property taken for public use sliall be assessed by a jury " without deduction for benefits to any property of the owner." This provision seems to have been incorporated in the Constitution of 1851, in consfeqnence of the decisions of the Supreme Court of that State in Symonds v. The City of Cincinnati, 14 Ohio, 147 ; and Brown v. The Same, 14 Id. 541, where the court held it was CHAP. VI.J CONN. RIVER R. K. CO. V. COUNTY COM'KSi 1179 competent for the defence to show the benefit conferred on the owner by the appropriation, such benefit to be considered by the jury in esti- mating the damages. We think the words " without deduction for benefits " adds nothing to the term "just compensation," and that the same rule is as applicable in our State as in Ohio. The jury in this case having found for the defendant, it was the duty of the court to set aside the verdict and grant a new trial. The judgment of the District Court is reversed, and cause remanded for a trial de novo. Reversed and remanded.^ Mr. Chief Justice Lake concurs. In Conn. River JR. Ji. Co. v. County Com'rs of Franklin, 127 Mass. 50 (1879), a statute had required the manager of a railroad owned by the State, upon the direction of the Governor and Council, to take certain land for the purposes of the road, and provided that it should be paid for out of the earnings of the road. It was admitted that these earnings would " probably be amply sufficient " to meet these payments. The manager, having been duly directed, entered upon the land, and petitioned the county commissioners to proceed in ascertaining and awarding damages. In granting a writ of prohibition against the commissioners, the court (Gray, C. J.) said : "Two questions are presented by the case, and have been argued by counsel : First. Whether the St. of 1878, c. 277, is unconstitutional, for want of a sufficient provision for the payment of compensation for the land taken ? Second. Whether the writ of prohibition is a suitable remedy? " The Constitution of the Commonwealth declares that, ' whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensa- 1 And so Omaha v. Howell Lumber Co., 30 Neb. 633, 635 (1890). Compare Terry V. Hartford, 39 Conn. 286, Randolph, Em. Dom. a. 273. In Omaha South, Rij. Co. V. Todd, 58 N. W. Rep. 289 (Neb. 1894), the court (Ragan, C), said : "The damages to which a land-owner is entitled by reason of the construction of a railway across his farm are (1) the actual value of the land taken, at the time of the taking, without dim- inution on account of any benefit, advantage, or other set-off, whatsoever; (2) the depreciation in the value of the remainder of the tract of land caused by the appro- priation of a part thereof for railway purposes, and the construction and permanent operation and occupation of the railroad thereon, excluding general benefits. Railroad Co. v. McKinlei/, 64 111. 339 ; Railroad Co. v. Wiebe, 25 Neb. 542, 41 N. W. 297 ; Rob- bins V. Railroad Co., 6 Wis. 610; Railroad Co. v. Horn, 41 Ind. 479. In an inquiry whether, and how much, the part of a farm not taken for railroad right of way is depreciated in value by the appropriation of a part, evidence as to the size of the farm ; the purpose for which it is used ; the improvements thereon, and how located ; the direction of the road across the farm; the cuts and fills made or to be made in the construction of the road; the width of the right of way; the height of em- bankments ; the depth of ditches ; the inconvenience in crossing the track from one part of the farm to another ; the liability of stock being killed; and danger from fire from passing trains, — are all facts competent for the jury's consideration in determin- ing the depreciation in value of the remainder of the farm. Railway Co. v. Beeson, 36 Neb. 361, 54 N. W. 557." See T^oy Sr West. R. R. Co. v. Ross et al., 40 Kans. 598 ; Meacham v! Fitchb. R. R. Co., i Cash. 29Z. — Er. 1180 CONN. KIVER E. K. CO. V. COUNTY COM'KS. [CHA.P. VI. tion therefor.' Declaration of Eights, art. 10. It has long been set- tled by the decisions of this court, that a statute which undertakes to appropriate private property for a public highway of any kind, without adequate provision for the payment of compensation, is unconstitu- tional and void, and does not justify an entry on the land of the owner without his consent. Commonwealth v. Peters, 2 Mass. 125 ; Perry v. Wilson, 7 Mass. 393 ; Thacher v. Dartmouth Bridge, 18 Pick. 501. 'Under our Constitution,' said Chief Justice Shaw, ' the Act conferring the power must be accompanied by just and constitutional provisions for full compensation to be made to the owner. If the government authorizes the taking of propertj-, for anj- use other than a public one, or fails to make provision for a compensation, the Act is simply yoid ; no right of taking as against the owner is conferred ; and he has the .same rights and remedies against a partj' acting under such authority, as if it had not existed.' Boston d) Lowell Railroad v. Salem & Xiowell Bailroad, 2 Gray, 1, 37. So in a case of laying out as a pub- lic highway a bridge owned by a private corporation, Mr. Justice Colt said : ' The duty of paying an adequate compensation, for private property taken, is inseparable from the exercise of the right of eminent domain. The Act granting the power must provide for compensation, and a ready means of ascertaining the amount. Paj-ment need not precede the seizure ; but the means for securing indemnity must be such that the owner will be put to no risk or unreasonable delay.' Jlaverhill Bridge v. County Commissioners, 103 Mass. 120, 124. " In Rogers v. Bradshaw, 20 Johns. 735, 744, cited by the learned counsel for the respondents, the decision was that the statutes appli- cable to the case, construed together, expressly provided for the esti- mate and paj'ment of the damages, and that such pa3'ment need not be actually made before the entry upon the land ; and the dictum, of Chancellor Kent, that an omission of the legislature to provide for compensation might not have made the entry a trespass, is opposed to the course of decisions in this Commonwealth, 'and has not been fol- lowed in New York. In Bloodgood v. Mohawk & Hudson Railroad, 18 "Wend. 1, 17, Chancellor Walworth, while admitting that the legis- lature might authorize the land of an individual to b| entered upon for the purpose of examination or of making preliminary surveys, without compensation, said: 'But it certainly was not the intention of the framers of the Constitution to authorize the property of a citizen to be taken and actually appropriated to the use of the public, and thus to compel him to trust to the future justice of the legislature to provide him a compensation therefor. The compensation must be either ascer- tained and paid to him before his property is thus appropriated, or an appropriate remed}' must be provided, and upon an adequate fund ; whereby he may obtain such compensation through the medium of the courts of justice, if those whose duty it is to make such compensation refuse to do so. In the ordinary case of lauds taken for the making of public highways, or for the use of the State canal, such a remedy is pro^ CHAP. VI.J CONN. EIVEK K. R. CO. V. COUNTY COM'eS. 1181 vided ; and if the town, count3-, or State officers refuse to do their duty in ascertaining, raising, or paying such compensation in the mode pre- scribed by law, the owner of the property has a remedy by mandamus to compel them to perform their duty. The public purse, or the prop- erty of the town or county upon which the assessment is to be made, may justly be considered an adequate fund. He has no such remedy, however, against the legislature to compel the passage of the necessary laws to ascertain the amount of compensation he is to receive, or the fund out of which he is to be paid.' And in I'eople v. JSayden, G Hill, 359, 361, Chief Justice Nelson said: 'Although it may not be neces- sary, within the constitutional provision, that the amount of compen- sation should be actually ascertained and paid before property is thus taken, it is, I apprehend, the settled doctrine, even as it respects the State itself, that, at least, certain and ample provision must be first made by law (except in cases of public emergency) , so that the owner can coerce payment through the judicial tribunals or otherwise, without any unreasonable or unnecessary delay.' See also Bexford v. Knight, 1 Kernan, 308, 314 ; Chapman v. Oates, 54 N. Y. 132, 146. " Statutes taking private property for a public highway, and provid- ing for the ascertaining of the damages, and for payment thereof out of the treasury of the county, town, or city, have often been held to be constitutional. Haverhill Bridge v. County Comm,issioners, 103 Mass. 120; Chapman v. Gates, 54 N. Y. 132; Loweree v. Newark, 9 Vroom, 151 ; Yost's Report, 17 Penn. St. 524; Powers v. Bears, 12 Wis. 213, 220 ; Commissioners v. Bowie, 34 Ala. 461. But, in the cases in which it has been so held, the liability to paj' the damages rested upon the whole propert}' of the inhabitants of the municipalitj', and might be enforced by writ of execution or warrant of distress, or by mandamus to compel the levy of a general tax. Jlill v. Boston, 122 Mass. 344, 350 ; Bose v. Taunton, 119 Mass. 99, 101 ; Bloodgood V. Mohawk & Mudson Bailroad, and Bexford v. Knight, above cited ; Commonwealth v. Commissioners of Allegheny, 37 Penn. St. 237, 277 ; Minhinnah v. Haines, 5 Dutcher, 388 ; Brock v. Hishen, 40 Wis. 674. The rule has not been extended to cases in which only a special fund was charged with the payment of the damages, and the municipality had no power to levy a general tax to pay them. Chapman V. Oates, 54 N. Y. 146 ; Keene v. Bristol, 26 Penn. St. 46. " In Ash V. Cummings, 50 N. H. 591, 621, it was said : 'In eases wbere the State, or a county, or a town, is to be made liable for the dam- ages which an individual maj' suffer by having his property taken for the public use, it is not so important that the compensation should be paid or secured in advance, provided the law provides a certain and expeditious way of ascertaining and recovering it, because there the presumption and the fact are that these municipalities are always responsible.' And the saying was quoted with approval by a majority of the court in Orr v. Quimby, 54 N. H. 590, 594. But in each case it -was obiter dictum. Ash v. Cummings was the case of a mill-dam 1182 CONN. EIVER E. E. CO. V. COUNTY COM'ES. [CHAP. VL erected by one individual to the injury of another. In Orr v. Quimhy, it was admitted that the only question to be determined was whether the defendant had the right to enter and cut trees on the plaintiff's land, and that the question whether the land could be permanentlj' occupied without assessment and payment of damages did not arise ; 54 N. H. 596 ; and the position assumed in the dictum above quoted was strongly controverted in an elaborate dissenting opinion of Mr. Justice Doe, as it had previously been in an able judgment of the Supreme Court of Maine, delivered by Chief Justice Shepley. Cushman V. Smith, 34 Maine, 247. " When private property is taken directly by the Commonwealth for the public use, it is not necessary or usual that the Commonwealth should be made subject to compulsory process for the collection of the money to be paid bj^ way of compensation. It is sufficient that the statute which authorizes the taking of the propertj' should provide for the assessment of the damages in the ordinary manner, and direct that the damages so assessed be paid out of the treasury of the Common- wealth, and authorize the Governor to draw his warrant therefor ; because, as observed bj- Chief Justice Bigelow, 'This is clearly an appropriation of so much money as may be necessary to pay the dam- ages which may be assessed under the Act.' ' It is a pledge of the faith and credit of the Commonwealth, made in the most solemn and authen- tic manner, for the payment of the damages as soon as thej- are ascer- tained and liquidated hy due process of law.' Talbot v. Hudson, 16 Gray, 417, 431. " But in the statute before us there is no pledge of the faith and credit of the Commonwealth, no appropriation of the general funds in its treasury, and no authority to the Governor to draw his warrant for the payment of the damages out of such funds. On the contrary, the very terms of the statute preclude the inference of any such pledge, appro- priation, or authoritj', by directing that the land taken for the union passenger station shall be paid for from the earnings of the Troy and Greenfield Railroad and Hoosac Tunnel, and appropriating for the pur- poses of the Act a sum not exceeding nine thousand dollars, to be paid out x)f those earnings. St. 1878, c. 277, §§ 6, 8. The fact, admitted bj' the parties, that those earnings will probabl3- be sufficient to meet and extinguish all claims for damages for lands so taken, falls short of satisfying the requirement of the Constitution that the owner of prop- erty taken for the use of the public shall have a prompt and certain compensation, without being subject to any risk or unreasonable delay. " The provisions of the St. of 1878, c. 277, specifying and appropri- ating a certainsuin out of those earnings for the payment of damages assessed under this Act, are equally conclusive against the suggestion made, though not strongly pressed, afthe argument, that the Common- wealth, or the manager acting in its behalf, may be required by the county commissioners, at the request of the land-owner, to give addi- tional securitj' for the payment of the damages under the General Rail- CHAP. VI. J BRICKETT V. HAVERHILL AQUEDUCT CO. 1183 road Act of 1874, c. 372, § 65. Sections 69 and 72 of that Act, provid- ing that, if the railroad corporation shall not pay the amount of damages awarded by the jury, a warrant of distress or execution may issue to compel the payment thereof, and that, until such warrant or execution is satisfied, all right and authority to enter upon the land, except for making surveys, shall be suspended, and the exercise thereof may be restrained by injunction, are also inapplicable, because in the present case no warrant of distress or execution can issue, either against the manager or against the Commonwealth ; not against the manager, because he takes no title himself in the land, but is a mere agent of the Commonwealth, acting under the direction of the Governor and Coun- cil, and removable at their pleasure ; Sts. 1875, c. 77 ; 1876, c. 150 ; 1878, c. 191 ; not against the Commonwealth, because the Common- wealth is never liable to judicial suit or process, except so far as its own consent thereto has been clearly manifested by statute. Troy & Greenfield Railroad v. Commonwealth, ante, 43. "The St. of 1878, c. 277, therefore, so far as it purported to authorize the taking of land of the Connecticut River Railroad Company for a union railroad station, was unconstitutional, and the taking under that Act was void, for want of any provision for adequate and certain compensation to the owner. "That taking, being unauthorized and void, did not alter the rights of the owner of the land, vested no title in the Com- monwealth, and could not be the basis of a petition to the county commissioners for the assessment of damages as for land lawfully appropriated to the public use. The invalidity of the taking and the consequent want of jurisdiction in the county commissioners are not cured by the St. of 1879, c. 290, passed since this case was argued, and providing that the sums of money required under the St. of 1878, c. 277, shall be paid from the treasury of the Commonwealth, instead of from the earnings of the Troy and Greenfield Railroad and Hoosac Tunnel. The statement of Mr. Justice Baldwin, in Bonaparte v. Camden & Amboy Railroad, Bald. 205, 226, that it is not indispen- sable that a law permanently appropriating private property to the use of the public should contain a provision for compensation, or prescribe the mode of making it, but that such a law would be valid if the legisla- ture should by a subsequent law direct compensation to be made, appears to have been founded on the dictum of Chancellor Kent referred to in the early part of this opinion, and is inconsistent with the settled law of this Commonwealth, and with the weight of authority elsewhere." ' In Brickett v. Haverhill Aqueduct Company, 142 Mass. 394 (1886), the defendant, under a statute purporting to authorize the taking and use of the waters of certain ponds, took the waters of Kenoza lake and 1 Compare United States v, Engerman, 46 Fed. Rep. 176, holdJDg that under the Constitution of the United States a jury is not necessary. And so in other jurisdic- tions. See Randolph, Em. Dora. 3. 31& — Ed. 1184 BKICKETT V. HAVEBHIH. AQUEDUCT CO. [OHAP. VI. built a dam across a river which was the only outlet of the lake ; whereby, as the plaintiff alleged, the flow of the stream through his land was prevented. The State provided for paying " all damages sustained by entering upon and taking " these waters. The plaintiff brought a common-law action of tort, and a verdict was ordered for the defendant. In setting aside this verdict on the ground that the defendant might, perhaps, have exceeded the statutory authority, the court (Morton, C. J.) said : " Without doubt, the defendant was liable to the plaintiff" in some form of proceeding for any damage sustained by him by reason of taking the water and builaing the dam. Watuppa Reservoir Go. v. Fall River, 134 Mass, 267. But it is settled that, when the legislature authorizes a municipal or other corporation to take private property for public uses, and provides in the statute a mode of ascertaining and recovering the damages, such statutory remedy is the only remedy to which the injured party can resort for acts done within the authority of the statute. " It follows that the plaintiff cannot maintain an action of tort for injuries caused to him by any acts of the defendant which it was author- ized to do under the statute, but his only remedy is the one pointed out by the statute. "The plaintiff recognizes this principle; but contends that the St. of 1867 is unconstitutional and invalid, because it does not make adequate provision for the recover}- of damages caused by the defend- ant's acts under it. "The Constitution provides that, 'whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor-' Declaration of Rights, art. 10. Undoubtedly, a statute which attempts to authorize the appropriation of private property for public uses, with- out making adequate provision for compensation, is unconstitutional and void. Connecticut River Railroad v. County Commissioners, 127 Mass. 50, and cases cited. But the St. of 1867 does not undertake to do this. It provides, in substance, that the corporation shall be liable to pay all damages for injury to private property, and specifies a sufficient remedj' to enable the person injured to recover such damages. We are not aware of any case in which it has been held that such pro- visions are not a sufficient compliance with the requirement of the Con- stitution. The instances are numerous in which aqueduct companies have been incorporated by statutes which contain the same provisions for securing compensation. The successive legislatures, in these statutes, recognized the constitutional obligation to make adequate compensation, and deemed that such provisions did, with practical cer- tainty, secure the rights of individuals whose property was taken or injured. " They undoubtedly took into consideration, not only the special remedy provided by each statute, but the other rights and remedies which an individual would have under the general laws, if his damages CHAP. VI.] 3KICKETT V. HAVERHILL AQUEDUCT CO. 1185 were not paid after they were ascertained. Take the case before us. If the plaintiff, or any person injured, had, upon proper application, had his damages ascertained, he would be entitled to a warrant of dis- tress to compel the payment of them; Pub. Sts. c. 110, § 18; if this was ineffectual, and the defendant still refused to pay, without doubt this court would, by proceedings in equity, restrain the defend- ant from a further use of the water, and, if necessary, order the removal of the dam. " The question whether the provision for compensation furnished by the statute is an adequate one is a practical question. It seems to us that the remedy which the statute in question furnishes against the cor- poration, supplemented by the remedies afforded by the general laws, if it refuses to pay the damages assessed, affords to any person whose property is taken or injured by the acts of the corporation a reasonable certainty that he will recover and receive compensation therefor. We are not, therefore, prepared to hold that the itatute is unconstitutional, because it does not make adequate provision for compensation. "The case of Connecticut River Railroad v. County Commission-' ers, ubi supra, is quite different from the case at bar. In that case, in the statute which was held to be unconstitutional, no person or corpo- ration, neither the State nor the manager of the railroad; was made liable for the damages, but the plaintiff was left to look solely to a future uncertain fund, and he was provided with no means of enforcing his claim against the fund. " We do not deem it important that the land of the plaintiff which was injured was outside of the limits of this State. The language of the Act is general, and puts all water rights upon the same footing, and applies to a proprietor outside the State. Such proprietor certainly has no greater rights than the citizen whose lands or water rights within the State are injured by the acts of the defendant under the autliority of the legislature. Whether the constitutional objection we have con- sidered would be open to a citizen of another State, whose lands or water rights in that State are injured, we need not discuss nor decide. " It follows that the plaintiff cannot maintain this action for damages caused by any acts of the defendant which are authorized by the statute." * 1 And SO Cherokee Nation v. So. Kans. Ry. Co., 135 U. S. 641. See supra, pp. 979- 990; Tuttle v. Knox County, 89 Tenn. 157 (1890); Wallace v. R. R. Co., 138 Pa. 168 (1890). "The fundamental doctrine, of course, is that private property cannot he taken for public purposes without just compensation, but this need not he given in all cases con- currently in point of time with the actual exercise of the right of eminent domain. It is enough if an adequate and certain remedy is P^^j.^ '•/'^^f^^y ''>\"^""' °l ^'^ property may compel payment of his damages. (Blood.ood v. M. ^ ^„^ ^- ^°-; 18 Wend. 9 ; £yon v. Jerome, 26 Id. 585 ; People ex ret. Uitey v. Hayden,6m\l, 359 , Rex ford V Knwht 11 N. Y. 308.) This means reasonable legal certainty. {Chapman f f i 54 N.!' 146 , Sa,e v, CUy of Brooklyn 89 Id. 189^)" - Da-o.xh, J„ for the court, in U the Matter of the Pet'n of the U. S., 96 N. Y. 227. VOL. 1. — 75 1186 BEICKETT V. HAVEEHILL AQUEDUCT CO. [CHAP. VL In The State v. Perth Amboy, 52 N. J. Law, 132 (1889), the Supreme Court of New Jersey (Garrison, J.) said : " The ordinance brought up by this writ is nugatory if the charter of the city of Perth Amboy contains no provision by which private lands can be taken for public use by the proceedings in question. " The sovereign power of compelling an owner to part with the title to his lands is coupled with the correlative duty of providing for the payment of the compulsory pur- chase. By the Constitution of this State a distinction is made between those cases n which property is talcen directly by the State, as by a municipal corporation by State authority, and those cases in which a private corporation, acting as the State's agent, appropriates private property for a public purpose. In the latter case actual compen- sation to the owner must precede the taking of his lands, whereas in the former it is enough if provision be made by which the owner can *btain compensation, and that an impartial tribunal is provided for assessing It. Loweree v. Newark, 9 Vroom, 151 ; Wheeler v. Essex Road Board, 10 Id. 291. " A law which lacks these requisites will not authorize the exercise of this sover- eign right. Furthermore, the provision which thus enables the owner to obtain com- pensation for his lands must be in existence at the time the power to compel him to part with them is exerted. Gaines v, Hudson Counti/ Commissioners, 8 Vroom, 12. " Where no such legislation exists, the owner may resist the initial step toward the divestment of his title. The invasion of his own rights as well as his duties to the representatives of the public requires him to challenge the improvement at its thresh- old, before outlay and acquiescence shall have worked to his detriment and to theirs. Gaines v. Hudson County Commissioners, supra. " The remedy, moreover, in cases when compensation is deferred, must be adequate, one to which the party can resort of his own motion; it must not be burdened by unusual steps of procedure or other vexatious features. Butler v. Sewer Commissioners, 10 Vroom, 667. Such a remedy can exist only where the owner, who is compelled to part with his property without being paid the price, has his damages legally ascer- tained under the law which authorized the taking. "The tribunal which is thus to assess the owner's damages may be determined by the Constitution or by the statute under which the condemnation proceedings are had Where the Constitution is silent as to the manner in which the assessment for property taken shall be made, the power to take is dormant until the legislature supplies the plan. However ordained, the proceeding is judicial in character, and the party in interest is entitled to have an impartial tribunal and the rights and privileges usually deemed essential to a judicial investigation. And, in general, by whatever method the property of an individual is to be divested, under color of law, by proceedings against his will, the existence of the proper machinery must be clear in the law, and a strict compliance with all those provisions which have been therein made for his pro- tection must be shown. Davis v Howell, 18 Vroom, 280 ; 2 Dill. Mun. Corp. § 604. " We have seen that, in the absence of controlling constitutional provision, it is competent for the State to authorize municipal corporations to take private lands for public use without first making payment therefor, although such a course is character- ized by Judge Dillon as an unusual one — ' The almost invariable, and certainly the just, course being to require payment to precede or to accompany the act of appropria- tion.' 2 Dill. Mun. Corp. .615. "The power delegated, moreover, being a stringent and extraordinary one, no pre- sumptions will be intended against the owner. In any event, if a legislative purpose to postpone appropriation to payment be discovered, it will be given strict effect. "Applying these general principles to the case in hand, it is clear that the proceed- ings open' to the defendant under its charter neither provide for the compensation of the prosecutrix in respect to her lands, nor do they give her that adequate remedy which the organic law guarantees." — Ed. CHAP. VI.] VORSTER V. SCOTT. 1187 FORSTER V. SCOTT. New York Codkt of Appeals. 1893. [136 N. Y. 577.] Appeal from judgment of the General Term of the Superior Court in the city of New York, entered upon an order made Jan. 15, 1892, which directed a judgment in favor of plaintiff, upon a case submitted, under the Code of Civil Procedure (§ 1279). The questions involved and the facts, so far as material, are stated in the opinion. Rollin H. Lynde, for appellant. Henry A. Foster, for respondent. O'Brien, J. The question in this case is in respect to the plaintiff's rights under a contract made by him with the defendant June 18, 1891, whereby he agreed to sell and the defendant to purchase a parcel of vacant land in the city of New York, at a price specified, subject to but without assuming a mortgage thereon of $4,000. The plaintiff on his part agreed to convey the premises to the defendant by a full cove- nant warranty deed, sufBcient to vest the title in fee simple free from any lien or encumbrance except the mortgage. At the time stipulated in the contract the plaintiff tendered to the defendant a deed in the required form and containing the proper covenants, which the defendant declined to accept for the reason that upon searching the title he had discovered that there was such an encumbrance upon the land that the plaintiff" was unable to convey a good title as required by the contract. The facts were agreed upon and submitted to the General Term under the provisions of § 1279 of the Code, where it was held that no lien or encumbrance, aside from the mortgage, existed or attached to the land by reason of the facts so stated, and directed judgment for the plain- tiff that the defendant accept the deed tendered and pay the purchase price. The facts so far as they are material to the point involved are these : On the 18th of October, 1890, the department of parks of the city of New York, under the provisions of chapter 681 of the Laws of 1886, filed a map of a proposed street or avenue which entirely covers the plaintiff's lot. The map so filed complies strictly, with respect to form and substance, with all the provisions of law on the subject. The proposed street has not been opened and no proceedings have been taken to open it or to acquire the title to plaintiff's land by condemna- tion. Section 677 of the Consolidation Act provides as follows with reference to damages for taking lands for such streets when the same are finally opened : " No compensation shall be allowed for any build- ing, erection, or construction which at any time, subsequent to the filing of the maps, plans, or profiles mentioned in section six hundred and seventy-two of the Act, may be built, erected, or placed in part or in whole upon or through any street, avenue, road, public square, or place exhibited upon such maps, plans, or profiles." The plaintiff's vacant lot derives almost its entire value from the fact that it is possi- 1188 FOESTEE V. SCOTT. [CHAP. VL ble to use it for building purposes. Tlie facts, therei e, present two questions. (1) Whether, assuming the statute to be valid, a lien or encumbrance was created and attached to the land in question by the filing of the map by tiie park department. (2) Whether the legislature had power under the Constitution to enact, as it virtually did, that whenever land thus exhibited upon the map is taken for street purposes, at any time after the filing thereof, no compensation shall be made to the owner for any improvements put upon the land during the time between the filing of the map and the condemnation proceeding. An encumbrance is said to import every right to or interest in the land, which may subsist in another, to the diminution of the value of the land, but consistent with the power to pass the fee bj' a conve}'- ance. (1 Bouvier's Law Diet. p. 696 ; 2 Greenl. Ev. § 242 ; 3 Wash- burn on Real Property, 659, § 14.) Any right existing in another to use the land or wherebj- the use by the owner is restricted is an encumbrance within the legal meaning of the term. {Wetmore v. Bruce, 118 N. Y. 319.) It was conceded by the General Term tliat the public authorities might or might not appropriate the land according to their pleasure, notwithstanding the filing of the map, and further that in case the owner, after the map was filed, made improvements upon it, he did so at the peril of losing the enhanced value of the land resulting there- from. These propositions seem to be correct, but we are constrained to differ with that court in the conclusion that such a situation does not impair the value of the property and amount to an encumbrance within the meaning of the contract. If the law was valid it virtually imposed a restriction upon the use of the propertj' because it enacted that it could not be used for building purposes, except at the risk to the owner of losing the cost of the building at some time in the future. We are also constrained to differ with the General Term in regard to the yalidit}' of the statute in so far as it enacts that the owner of land exhibited npon the maps is not entitled to compensation for improve- ments subsequentl}' made. This statute is of somewhat ancient origin, and it was said in some of the cases that it was at first enacted at the solicitation of the land-owners in order to enhance the value of their property. {In re Furman Street, 17 Wend. 668 ; In re Wall Street, 17 Barb. 639 ; Seaman v. Hicks, 8 Paige, 660.) However that may be, in the aspect in which the question is now presented, we think it is in conflict with the provisions of the Consti- tution for the protection and security of private property. The con- stitutional guarantees against the appropriation of private property for public use, except upon just compensation, as well as that against depriving the owner of its enjoyment and possession without due pro- cess of law, have been the subject of much judicial discussion in the manifold aspects in which the questions have been presented in the numerous cases. These provisions have been so thoroughly expounded, ithor ■ Thayer, James Bradley IT .gases on pon«f.i+.„^.-^^^., ■, ^^, 1^ Vol. 1 Copy ;