dorn^U IGaui ^rl^nfll IGibrarg Cornell University Library KF 398.L42 Leading cases simplified.A collection of 3 1924 018 877 146 The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018877146 LEADING CASES SIMPLIFIED. A COLLECIIOS OF THE LBADIIJG CASES IN EQUITY AND CONSTITUTIONAL LAW. / \5^ fJ JOHN D. ;^WSON, Author of "A Concordance of Words, Phrases and Definitions,* " Usages and Customs,*' " Expert and Opinion Evidence.** ST. LOUIS: F. H. THOMAS & COMPANY. 1883. Entered according to Act of Congress, in the year 1883, by JOHX D. LAWSOX, In the Office of the Librarian of Congress, at Washington. CORNELL yNfVERSITY APR 5 I90I UW LIBRARY If J?'''- n.l I*res8 of A^i.ron- Jones Printing Co. PREFACE. The favor with which my first volume of Leading Casks SniPLiriED has been received by the profession is the in- ducement which has led me to treat the cases in Equity and in Constitutional Law in the manner I before adopjted in presenting to the practitioner and the student the leading cases of the Coiimon Law. I take the liberty to repeat in this, my second volume of Leadixg Cases Simplified, the aim which I announced in my first volume : 1. To give the reader a collection of the acknowledged leading cases in Equity and Constitutional Law. 2. To present these in a style which shall arrest his attention, render it possible for him to acquire their princi- ples readily, and fix those principles in his mind unincum- bered by unimportant and sometimes unintelligible facts. How far I have succeeded in both volumes I leave the profession to judge. The many exceptions to which all the elastic rules of equity are subject have made it necessary for me, in many instances, to append notes to the cases in which to set out and explain these exceptions. The spaces left at the ends of these notes the student will find convenient places in which to mark, for his own instruction, any subsequent cases which may come under his notice in his reading. I intend at an early day to complete this series by a volume of Leading Cases in the Criminal Law. J. D. L. St. Louis, June, 1883. CONTENTS. PART I. EQUITY CASES SIMPLIFIED. TRUSTS. PAGE. "Uses and Trusts — Tyrrel 's Case 1 Note . . 1, 2, 3 Shelley's Case i Note . . . 4, 5 Executed axd Executory Trusts — "Equity Follows THE Law" — Lord Glenorchy v. Bosville ,6 Note r Imperfect Conveyance may Constitute a Trust — Wadsworth v. Wendell 8 Note 8, 9, 10 Ellison V. Ellison .... . . 8 Antrobus v. Smith 9 Bichards v. Delbridge 10 Precatory Trusts — Sarding v. Glyn 11 Note .... .... 11, 12, 13 Greene v. Greene .12 Wynne \. Hawkins ... 12 Sale V. Moore 13 Resulting Trusts — Party Paying Purchase Money — Ad- vancement — Dyer v. Dyer 14 Note 15, 16, 17 Dudley v. Bachelder 15 Ex parte Yallop 16 Baldwin v. Campfield 16 (O VI CONTENTS. Failure of Trust — Mayor of Gloucester v. Wood 18 • Note 18, 19 Charitable Trusts — The Cy Prbs Doctrine — Jackson v. Phillips 20 Note 21 Constructive Trusts — Vendor's Lien for Purchase Money — Mackreth v. Symmons 22 Note 22, 23 Sam;! — Purchases by Trustees — Keech v. Sandford 2i Fox V. Mackreth 25 Note 25, 26 Bobinson v. Pett .... . . 26 Purchases from Trustees — Elliot V. Merryman 27 Note 28 Besponsibility for Act of Co-Trustee — Townley v. Sherborne 29 Brice v. Stokes 30 Note 30, 31 WILLS. Wills — Ashburner v. Macguire Bland v. Mayo .... Smith V. Lampion Note Donatio Mortis Causa — Ward V. Turner . Note Oourley v. Linsenbigler Edwards v. Jones Jones V. Selpy . , Moore v. Darton . Hawkins v. Blewitt Sneckner v. Taylor . 32 . 32 . 33 34, 35 . 36 36, 37, 38 37 37 37 37 38 88 CONTENTS. VU MISCELLANEOUS. PAGE Conversion — "Equity Looks on that as Done which Ought to be Done " — Fletcher v. Ashbumer 39 Note 39, 40 Ackroyd v. Smithson 41 N^ote 43 Election — Wilbanks v. Wilbanks 44 Brodie v. Barry .44 Cooper V. Cooper 45 Note 46, 4T Performance — " Equity Imputes an Intention to Fulfil AN Obligation " — Wilcocks V. Wilcocks 48 Blandy v. Widmore 48 Oliver v. Brickland 49 Note 50, 51 Lechmere v. Earl of Carlisle .... 50 Satisfaction — Talbot V. Duke of Shrewsbury 52 Ghancey's Case 52 Strong v. Williams 53 Mooley v. Hatton 53 Ex parte Pye 54 Note 55, 56, 57, 58 Clark V. Sewell 56 Dewitt V. Tales 56 Coventry v. Chichester 58 Administration of Assets — Duke of Ancaster v. Mayer 59 Note . . . 59, 60, 61 Marshalling Assets — Aldrich V. Cooper 62 Note . . . ' 62, 63 Equitable Mortgages — Bussell V. Bussell . . 64 Note 64, 65 VIU CONTENTS. PAGE Tenancy in Common — " Equality is Equity " — Lake v. Gibson . . ■ "S Lake v. Craddock 6& JVote 66, 67 Morley v. Bird 66 Penalties and Eorfeitubes — Sloman v. Walter . 68 Peachey v. Duke of Somerset 69 Note 69, 70 Contribution — " Equality is Equity " — Dering v. Earl of Winchelsea 71 Note 71, 72 MARRIED WOMEN. Married Women — Equity to a Settlement — "He who Seeks Equity must do Equity " — Lady Elibank v. Montolieu . . . .73 Murray v. Lord Elibank 74 Note 7-t, 75, 76 Married Women — Rights and Liabilities as to Separate Estate — Jaques v. Methodist Episcopal Church .... 77 Methodist Episcopal Church v. Jaques .... 77 Note 78, 79 Married Women — Separate Estate and Restraint upon Alienation — Tullett V. Armstrong .... ... 80 Note 80, 81 ACCIDENT. Loss OF Documents — Lawrence v. Lawrence .82 Note 82, 83, 84, 85 Imperfect Execution op Powers — Toilet V. Toilet 86 Note ... 86, 87 Powers Coupled with Trusts — Withers v. Yeadon 88 CONTENTS. IX Page Accidental Forfeitures — Bostwick V. Stiles 89 Accidental Penalties — Jones V. Lewis 92 . Note 92, 93 MISTAKE. Mistakes of Law — Hunt V. Bousmaniere 94 Lansdowne v. Lansdowne 95 Stapleton v. Stapleton 96 Gordon v. Gordon 96 Note 97, 98 Tyson v. Tyson . 97 Westvy V. Westvy 9S Mistakes op Fact — Brown v. Lamphear 99 Note 100, 101 FRAUD. Contracts in Restraint of Marriage — Maddox v. Maddox 102 Bargains with Heirs — Chesterfield v. Janssen 104 Note .... . . 104, 105, 106 Nevill V. Snelling 105 Bargains Between Persons in Fiduciary Relation — Huguenin v. Baseley ... ... 107 Note 107, 108 Frauds upon Creditors — Sexton V. Wheaton .... ... 109 Note ... 110 Frauds upon Marital Rights — Countess of Strathmore v. Bowes Ill Note 112 Taylor v. Pugh . 112 Frauds on Powers — Aleyn v. Belchier lliJ Note 113, 114 X CONTENTS. - PAGE Bona Fide Pubohasers — Basset v. Nosworthy US Note 116 SPECIFIC PERFOKMANCE. Not Generally Decreed of Chattels — Guddee v. Butter 116 AETiCLt;a OF Special Value — Pusey V. Pusey 118 Duke of Somerset v. Gordon 118 Note 118, 119, 120 Phillips V. Serger 119 Fells V. Heed 119 Duncuft V. Albrecht 119 Buxton V. Linter 120 Contracts Relating to Real Property — Seton V. Slade • . 121 Lester v. Foxcroft 121 Woollam V. Hearn .... ... 122 Note 122, 123, 124 When Specific Performance not Decreed — Vodson V. Swan 125 Note ... .... 125, 126 Jurisdiction of Equity — " Equity Acts in Personam " — Penn v. Lord Baltimore 127 Note 127, 128 INJUNCTIONS. Enjoining Proceedings at Law — Marine Ins. Go. v. Hodgson 129 Note 130, 131 Earl of Oxford 's Case 130 Injunction to Restrain Violation of Contracts — Steward v. Winters 132 Note 133, 134 Restraining Nuisances — St. Helenas Smelting Co. v. Tipping 136 Note 137 CONTENTS. Xi PAGB Public Nuisauce Enjoined by Equity — Samilton v. Whitridge 138 Note 138, 139 Nuisance from Noxious Vapoks — Campbell v. Seaman 140 Note 140, 141, 142 Peck V. Edler 142 Nuisance from Noise — Bells — Soltau V. De Held 143 Note 144, 145 Harrison v. St. Mark's Church .... 145 Nuisance from Noise — Improper Use — Broder v. Saillard 146 Note . . 147, 148 Ball v. Bay .148 Nuisance from Noise — Proper Use — Pool T. Coleman 149 No Trade a Nuisance Per Se — Catlin V. Valentine 153 Note 154, 155 Arnot V. Brown 154 Flint V. Bussell 155 Nuisance mat be Disagreeable without Being Hurt- ful — Walter v. Selfe 156 Jfote 157, 158 Dennis v. Eckhardt 157 Cook V. Forbes 158 Coming to Nuisance — Brady v. Weeks 159 Smith V. Phillips 160 Note 161 Nuisance — Length op Time Immaterial — Boss V. Butler 162 Note ..... .... 163 Com.y. Gallagher 163 Infringement of Patents — Caldwell v. VanvHssengen 164 N-ote 165, 166 Xll CONTENTS. PAGE XiTERARY Piracy — Prince Albert v. Strange 167 Folaom v. Marsh 167 Note 168, 169 Martinetti v. Maguire 168 ■ Trade-Marks — Family Name Used to Deceive — Croft V. Daij 170 Trade-Marks — No Relief to Wrong-Boer — Seabury v. Orosvenor 171 Note 171, 172, 173 McAndrew v. Basset 172 Maxwell v. Sogg ....... 172 Young v. Macrae 172 Braham v. Bustard 17.S Trade-Marks — Family Name Used without Intent to Deceive — Meneely v. Meneely 174 Note 175 ;Statement8 as to Former Employment — Olenny. v. Smith 176 Note 177, 178 PART IL CONSTITUTIONAL CASES SIMPLIFIED. CHAPTER I. — GENERAL PRINCIPLES. General Limitations in Constitution do not apply to the States — Barron V. Mayor of Baltimore 181 ^ote 182, 183, 184 Implied Powers — McCullough v. State of Maryland 185 ^ote 186, 187 Martin v. Hunter's Lessee 186 CONTENTS. XI II CHAPTER II. — THE POWER OF TAXATION. PAGE Extent of the Taxing Power — Providence Bank v. Billings 188 Note 189, 190, 191 St. Louis V. Ferry Co 191 Tax must be for Public Purpose — Loan Association v. Topeka 192 Note 192, 193 Lowell V. Boston 193 State V. Osawkee Tp 193 What are " Direct Taxes " — Hylton V. U. S 194 JSTote 195, 196 Pacific Ins. Co. v. Soule 195 Veazie Bank v. Fenno 195 State Duties on Imports — Brown v. State of Maryland 197 Note 198 State Duties on " Exports " — Almy V. State of California 199 Woodruff V. Parham . . .... 200 Note .... .... 200, 201 States Cannot Tax Federal Agencies — McCulloch V. State of Maryland 202 Dobbins v. Commissioner of Erie Co. ■ ■ . ■ 203 Weston V. City Council of Charleston .... 203 Crandall v.. State of Nevada 204 Note .... 205 United States Cannot Tax State Agencies — Collector v. Day 206 Note 206, 207 Warren v. Paul 207 Duty of Tonnage — Cannon v. New Orleans 208 Packet Co. v. Keokuk * ■ 208 Note 209, 210 St. Louis V. Ferry Co. 210 CONTENTS. CHAPTER III. — THE POWER TO BORROW MONEY. TAGE Craig v. State of Missouri . . . . 211 Briscoe \ . Bank of Kentucky ... . . 212 Note 213, 214 CHAPTER IV. — The power to regulate commerce. Commerce Cannot be Regulated by the States — Gibbons v. Ogden 215 The Passenger Cases . . . . . 216 State of Pennsylvania v. Wheeling Bridge Co. . . 217, 218 Except as to Local Regulations — Cooley V. Port Wardens .... . . 218 What is " Commerce " — Panl V. Virginia 219 Note 220, 221, 222 What is Commerce "Among " the States — Veazie v. Moor 223 Note .... .... 223, 224 U. S. V. Dewitt 224 Commerce and the Police Power — The License Cases 226 City of New York v. Miln 225 Note 226, 227 CHAPTER v. — property RIGHTS. A Grant from the State is a Contract — Fletcher v. Peck Note .... But not Public Offices — Butler V. Pennsylvania Note . A License not a Contract — Stone V. Mississippi . Note . Charters to Private Corporations — Dartmouth College v. Woodward Planters Bank v. Sharp . Note . 228 228, 229 230 231 232 233 234 235 285, 236 CONTENTS. XV Collateral Stipulations in Private Charters — Gordon v. The Appeal Tax Court 237 Woodruff V. Trapnall 238 Note .... ... 239, 240, 241 Contracts not Implied — Charles JRiver Bridge v. Warren Bridge .... 242 Note . 242, 243 Municipal Corporations — East Hartford v. Hartford Bridge Co 244 Note 244, 245 State V. Haben 245 "What Laws Impair the Obligation op Contracts — Insol- vent Laws — Sturges v. Crowninshield 246 Note . .... 246, 247, 248, 249, 250 Breitenbach v. Bush 249 McCormick v. Bush 249 IiAws in Force at the Time of Contract — Domicil op Creditor — Ogden v. Saunders . 251 Baldwin v. Hale . ...... 251 Note ... 252, 258 Statutes of Limitation — Terry v. Anderson 254 Note ... 255 Abolishing Imprisomment for Debt — Mason v. Haile 256 Appraisement Laws — Bronson v. Kinzie 257 Exemption Laws — Edwards v. Kearzy 260 Note . 260,, 261 Eminent Domain — West Biver Bridge Co. v . Dix 262 Note 262, 263 Xvi CONTENTS. CHAPTER VI.— THE POLICE POWER. PAdB Protection of Public Health — The Slaughter House Gases 264 KToU , . . .264, 265 Thorpe v. Butland B. Co 265 Police Power Resides in the States — Powers op Con- GKE88 — United States v. Dewitt 266 Note 266, 267 Must not Conflict with National Rights — Railroad Co. v. Husen 268 Chy Lung v. Freeman 269 Note 270, 271 Admissiost to the Bab — Bradwell v. State 272 Note 272, 273 Corporations — Paul V. Virginia 274 Intoxicating Liquors — Bartemeyer v. Iowa , . . 275 Beer Co. v. Massachusetts ...... 275 Ifote 276, 277 Regulation of Railroai'S — Mailroad Co. v. Fuller 278 Note ^ . 279 Regulation of Charges — Peik V. Chicago, etc., B. Co 280 Chicago, etc., B. Co- v. Jowa 281 Munn V. Illinois 282 Note 283 CHAPTER VII. — MISCELLANEOUS CASES. "Due Process of Law" — "Law of the Land" Murray's Lessee v. IToboken Land Co. .... 285 Note 285, 286 CONTENTS. XVil PAGE "Ex Post Facto" Laws — CaUer v. Bull 287 Note 289, 290 Miles V. State 289 Band v. Com 289 Hartv. State 289 State V. Manning 289 State V. Corson 289 Com. V. Hall 289 Bowling v. State 289 Stokes V. People 289 Gut V. State 290 Kring v. State 290 "Twice in Jeopakdy" — U. 8. V. Perez .... .... 291 Note 291, 292 "Cruel and Uncscal Punishments" — Wilkerson v. Utah 293 Note ... . ... 293, 294 So Ah Kow V. Nunan 294 6 TABLE OF CASES. PAGE Ackroyd v. Smithson 41 Aldrich v. Cooper . 62 Aleyn v. Belchier 113 Almy V. State of California . 199 Antrobus v. Smith 9 Ashburner v. Macguire . 32 Arnot V. Brown 154 Baldwin v. Campfield 16 Baldwin v. Hale 251 Ball V. Eay .... 148 Barron v. The Mayor of Baltimore 181 Bartemeyer v. Iowa . 275 Basset v. Nosworthy . 115 Beer Co. v. Massachusetts 275 Bland v. Mayo .... 32 Blandy v. Widmore . 48 Bostwick V. Stiles 89 Bradwell v. State 272 Brady v. Weeks 159 Braham v. Bustard . 173 Breitenbach v. Bush . 249 Brice v. Stokes .... 30 Briscoe v. The Bank of Kentucky 212 Broder v. Saillard .... 146 Brodie v. Bai-ry 44 Bronson v. Kinzie .... 257 (xix) XX TABLE OF CASES. PAGE Brown v. Lamphear 99 Brown v. The State of Marj'land 197 Butler V. Pennsylvania 230 Buxton V. Lister ...... 120 Calder v. Bull 287 Caldwell v. Vanvlissengen . . . . . 164 Campbell v. Seaman 140 Cannon v. New Orleans 208 Catlin V. Valentine 153 Chancey's Case 52 Charlos River Bridge v. Warren Bridge 242 Chesterfield v. Janssen 1Q4 Chicago, Burlington and Quincy R. Co. v. Iowa . 281 Chy Lung v. Freeman 269 City of New York v. Miln .... 225 Clark V. Sewell ....... 56 Collector v. Day 206 Com. V. Gallagher 163 Com. V. Hall 289 Cook V. Forbes 158 Cooley V. The Port "Wardens .... 218 Cooper V. Cooper 45 Countess of Strathmore v. Bowes 111 Coventry v. Chichester ..... 58 Craig V. The State of Missouri .... 211 Crandall v. The State of Nevada 204 Croft V. Day ....... 170 Cuddee v. Rutter 116 Dartmouth College v. Woodward . 234 Dennis v. Eckhardt . 157 Dering v. Earl of Winchelsea .... 71 DeWitt V. Yates . 56 Dobbins v. Commissioners of Erie Co. 203 TABLE OF CASES. XXI Dodson V. Swan PAGE . 126 Bowling V. Stale 289 Dudley v. Baohelder 15 Duke of Ancaster v. Mayer 59 Duke of Somerset v. Cookson . . 118 Duncuft V. Albrecht . . . . 119 Dyer v. Dyer ...... 14 Earl of Oxford's Case .... . 130 East Hartford v. Hartford Bridge Co. . 244 Edwards v. Jones . 37 Edwards v. Kearzy ..... . 260 Elliot V. Merryman ..... . 27 Ellison V. Ellison ..... 8 Eells V. Reed . 119 Fletcher v. Ashburner .... 39 Fletcher v. Peck . 228 Flint V. Eussell . 155 Folsom V. Marsh ..... . 167 Fox y. Macki'eth ..... 25 Gibbons v. Ogden . 215 Glenny v. Smith . . . . . . 176 Gordon v. Gordon . . . . ' . . 96 Gordon v. The Appeal Tax Court . 237 Gourley v. Linsenbigler .... . 37 Greene v. Greene ..... 12 Gut V. State . 290 Hamilton v. Whitridge .... . 138 Harding v. Glyn . 11 Harrison v. St. Mark's Church . . 145 Hart V. State ...... . 289 Hawkins v. Blewett . 38 XXll TABLE OF CASES. Ho Ah Kow V. Nunan Hooley v. Hatton Huguenin v. Baseley Hunt V. Rousmaniere Hylton V. United States Jackson v. Phillips . Jaques v. Methodist Episcopal Church Jones i;. Lewis . Jones V. Selby . Keech v. Sandford Kring v. State . Lake v. Craddock Lake v. Gibson . Lansdowne v. Lansdowne . Lady EUbauk v. Montolieu Lawrence v. Lawrence Lechmere v. Earl of Carlisle Lester v. Foxcroft License Cases, The ' . Loan Association v. Topeka Lord Glenorchy v. Bosville Lowell ('. Boston Mackreth v. Symmons Maddox v. Maddox . Jlanby v. Scott . Marine Ins. Co. v. Hodgson Martin v. Hunter's Lessee . Martinetti v. Maguire Mason v. Haile . Mayor of Gloucester u. Wood Maxwell v. Hogg PAGE 294 5a 107 94 194 20 77 92 37 24 290 6& 66 95 73 82 50 121 225 192 6 193 22 102 75 129 186 168 256 18 172 TABLE OF CASES. XXUl Meneely v. Meneely .... Methodist Episcopal Churcli v. Jaques Miles V. State .... Moore v. Darton Morley v. Bird .... Munn V. Illinois Murray v. Lord Elibank . Murra3''s Lessee v. Hoboken Land Co McAndrew v. Basset . McCormiek v. Rush . McCuUoch V. The State of Maryland Nevill V. Snelling Ogden V. Saunders Oliver v. Brickland . Pacific Ins. Co. v. Scale . Packet Co. v. Keokuk Passenger Cases, The Paul V. Virginia Peachey v. Duke of Somerset Peck V. Edler . Peik V. Chicago, etc., R. Co. Penn v.. Lord Baltimore Phillips i;. Berger Planters Bank v. Sharp Pool V. Coleman Prince Albert v. Strange . Providence Bank v. Billings Pusey V. Pusey . Pye, Ex parte . Railroad Company v. "Fuller Railroad Company v. Husen PAGE 174 77 289 37 G6 282 74 284 , 172 " 249 185, 202 . 105 251 49 195 208 216 219, 274 69 142 280 127 119 235 149 167 188 118 54 278 268 XXIV TABLE OF CASES. Rand v. Commonwealth Richards v. Delbridge Robinson v. Pett Ross V. Butler .... Russell V. Russell Sale V. Moore .... Seabury v. Grosvenor Seton V. Slade .... Sexton V. Wheaton . Shelley's Case .... Slaughter House Cases, The Sloman v. Walter Smith V. Lampton Smith V. Phillips Sneckner v. Taylor . Soltau V. De Held St. Helen's Smelting Co. v. Tipping St. Louis V. The Ferry Co. State V. Corson .... State V. Haben .... State V. Manning State V. Osawkee Tp. . State of Pennsylvania v. Wheeling Br Stapleton v. Stapleton ' Steward v. Winters . Stokes V. People Stone ■;;. Mississippi . Strong V. Williams . Sturges V. Crowninshield . Talbot V. Duke of Shrewsbury . Taylor v. Pugh .... Terry v. Anderson Thorpe v. Rutland, etc., R. Co. idge Co. 191 217, PAGE 289 10 26 162 64 13 171 121 109 4 264 68 33 160 38 143 135 210 289 245 289 193 218 96 132 289 232 33 246 52 112 2.54 265 TABLE OF CASES. XXV Toilet V. Toilet . Townley v. Sherborne Tullett V. Armstrong . Tyrrel's Case . Tyson v. Tyson United States v. Dewitt United States v. Perez Veazie v. Moor . Veazie Bank v. Fenno Wadsworth v. Wendell Walter v. Selfe . Ward V. Turner Warren v. Paul . West River Bridge Co. v. D Westby v. Westby Weston V. City Council of Wilbanks v. Wilbanks Wilcoeks v. Wilcocks Wilkerson v. Utah Withers v. Yeadon Woodruff V. Parham Woodruff V. Trafttiall Woollam V. Hearn Wynne v. Hawkins Yallop, Ex parte Young V. Macrae Charleston PAGE 86 29 80 1 97 224, 266 291 223 196 156 36 207 262 98 203 44 48 293 88 200 238 122 12 16 172 PART I. Equity Cases Simplified. EQUITY CASES SIMPLIFIED. USES AND TRUSTS. TYBREL'S CASE. [Dyer, 155a.] Jane Tyrrel, widow, was the heroine of this impor- tant case. The facts need not be given here, for it is sufficient for the student to remember only the impor- tant principle it decides, which is stated in nine words, and shall be written in large capitals, viz. : THERE CAN NOT BE A USE UPON A USE. Previous to the reign of Henry VIII., when a very important law called the Statute of Uses was passed, a method of transferring an estate had sprung up having peculiar features, but grounded on very practical reasons. The Statutes of Mortmain had prohibited lands from being given for religious purposes. To evade these statutes, the lawyers of that day devised the method of taking grants to third persons to the use of the religious bodies. This ruse was very successful, and became very popular. Eebellions were the order of the day about that time, and somebody was being beheaded and having his estate forfeited once or twice a week. When it was found that the use, unlike the estate, was not liable to (1) 2 EQUITY CASES SIMPLIFIED. be forfeited for treason, everybody that had land went into the busi- ness of having his property fixed In this way. B. wished to obtain a eertain piece of land. Instead of haying it deeded to himself, he had the document purport to convey it to C. for the use of B. Thus C. held the legal estate, and with C. alone could the courts deal at all. It was right here that the chancellor, the forerunner of our mod- ern courts of chancery, took a hand in the game. The chancellor was the keeper of the king's conscience, and what he didn't know about conscience wasn't worth knowing. So, in the case just put, he decided that this declaration of use charged the conscience of C, and C. held the land in trust for B., and he, the chancellor, would protect this trust estate in the hands of C. for the benefit of B. Hence arose the doctrine of Trusts. The courts of law had no jurisdiction in such matters, and the chancellor had plenty to do. Presently, however, another player came into the game, viz. . Par- liament, and, by enacting the celebrated Statute of Uses, seemed for a time to have got the chancellor's head in chancery. This statute (27 Henry VIII., ch. 10,) provided that where any persons should stand seised of any hereditaments to the use, confidence, or trust of any other persons, etc., the persons, etc., who had any such use, confidence, or trust should be deemed in lawful seisin and possession of the same hereditaments for such estates as they had in the use, trust, or confidence. This seemed to be a finisher; it was intended to extirpate the whole doctrine of uses and trusts. But the decision of the common law judges in Tyrrel's case com- pletely nullified it. This case decided that there could be no use upon a use, i.e., if land was conveyed to A., to the use of B. to the use of C, the statute would execute the first use and carry the legal title to B., but that it could not go as far as C. Then the chancellor came into the game again, and declared that in such a case B. held the land in trust for C, and he would take care of C.'s estate as of old. So, as remarked by an able writer, the statute, so far from affecting its object, gave a fresh stimulus to the system it was in- tended to destroy. After the decision in Tyrrel's case, and the chancellor again stepped in, the equitable doctrine of trusts became permanent. Another important statute affecting trusts is the* Statute of Frauds, passed in the twenty-ninth year of the reign of Charles II. By sect. 3 of that act trusts must be declared or assigned in writ- ing. But implied trusts do not fall within this statute. Its provi- sions have been adopted in nearly all the States. EQUITY CASES SIMPLIFIED. 3 Definition of Ti'usts —A trust is the beneficial title or ownership of property to which the legal title is in another. The person in whom the legal title is vested is called the trustee, and the person for whose benefit the trust exists is called the cestui que trust. EQUITY CASES SIMPLIFIED. SHELLEY'S CASE. [1 Co. 93b,] This (the pons asinorum of the student), like Tyr- rel's case, is more important for its results than for its facts. The principle which it announced was that where the ancestor takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs or the heirs of his body, the word " heirs " is a word of limitation, and not of purchase ; so that the ancestor takes the whole estate comprised in the term ; that is to say, in the first case, an estate in fee simple ; in the second, an estate in fee tail. This is the language in which a lawyer (if you ask him and do not forget his fee) will generally relate to you the rule in Shelley's Case. The meaning of the rule is simple enough, viz. : that where there is a gift to a person and his heirs, or the heirs of his body, it is not to be taken as conferring any estate on the heir, but simply showing or marking out the estate that the ancestor takes. Thus an estate is given to A. for life, and remainder to his heirs in fee simple, this means simply that A. has an estate in fee simple, and his heirs take nothing by the conveyance itself. The " rule in Shelley's Case " applies to equitable as well as legal estates (except in case of executory trusts, for which see Lord Glenorchy D. Bosville, the next case); but where one limitation is legal, and the other equitable, it does not apply. Thus a grant unto and to the use of A. for life, with remainder to the heirs, or heirs of the body, of A. gives A. a fee simple or fee tail, as the case may be, and if an intermediate estate to a third party were given after the life estate to A., and before the limitation to his heirs or heirs EQUITY CASES SIMPLIFIED. 5 of the body, the result would be the same, subject to the interven- ing estate ; but if the grant is unto and to the use of A. for life, ■with remainder to the use of B. and his heirs in trust, for the heirs or heirs of the body of A., here A. would talco but a life estate and his heirs or heirs of the body would take as purchasers. So the rule applies, although there may be an intervening estate between the gift of freehold to the ancestor and the subsequent limitation to the heir; thus, if an estate is limited to A. for life, and after his decease to B. for life, and then to the heirs of A., here A. takes a fee simple subject to the intervening estate for life to B. The rule is of very ancient origin. Indermaur Ld. Cas. Eq. 25. EQUITY CASES SIMPLIFIED. EXECUTED AND EXECUTORY TRUSTS — '' EQUITY FOLLOWS THE LAW." LORD GLENOBCHX v. BOSVLLLE. [Cas. Temp. Talbot, 3; 1 Wh. & Tud. Ld. Cas. Eq. 1.] Sir Thomas Pershall, a well-to-do knight of the eigh- teenth century, sat down one day and made his will. In this document he devised the «bulk of his real es- tate to trustees, to hold in trust until the marriage of his granddaughter, Arabella, and when that event came to pass, they were to convey it to the use of Arabella for life, remainder to her husband for life, remainder to the issue of her body, with remain- der over. In due course of time Arabella married Lord Gl'enorchy, but the trustees (Bosville being one of them) refused to turn over the property, and she and her husband were compelled to ask the aid of the Court of Chancery in the matter. Here the question at once arose, was not Arabella entitled, under the will, to have conveyed to her, an estate in tail, accord- ing to the rule in Shelley's Case, and would the Court of Chancery follow the rule of law on this subject, and order Bosville and his fellow trustees to convey this kind of an estate? But the court said no to this question. "I think," said the Lord Chancellor, "in cases of EQUITY CASES SIMPLIFIED. 7 trusts executed or immediate devises, the construction of the courts of law aiid equity ought to he the same ; for there the testator does not suppose any other cou- veyance will be made. But iu executory trusts he leaves somewhat to be done ; the trusts to be executed in a more careful and more accurate manner." And the court was of opinion that a conveyance to Arabella for life, remainder to her husband for life, remainder to their first and every other son, remainder to their daughter, would best carry out the testator's intention ; and so they ordered this to be done. This Is the leading case, showing the distinction between exe- cuted and executory trusts. An executed trust is one where no act is necessary to be done to give effect to it, the trust being finally declared by the instrument creating it. An executory trust is where the instrument creating the trust is intended to be pro- visional only, and further conveyances are required to effectually carry it out. The test, as well put by an eminent judge, is this: Has the testator been his own conveyancer, or has he left some- thing to be done? If the former, it is an executed trust; if the lat- ter, it is an executory one. Now, Sir Thomas Pershall had clearly left something to be done, for before Arabella could get her prop- erty the trustees had to convey it to her. The case also illustrates the maxim, " Equity follows the law." Equity applies the rules of law to equitable titles and interests very often, but not always. In the case of executed trusts it does; in the case of executory trusts it does not. EQUITY CASES SlMPLiriED. IMPERFECT CONVEYANCE MAY CONSTITUTE A TRUST. WADSWOBTH v. WENDELL. [5 Johns. Ch. 224.] A soldier in the Revolutionary War was entitled, by virtue of his patriotic services, to a grant of six hundred acres of land in New York State. He sold the land to Mr. Wadsworth, and undertook to make him a deed of it. But the veteran was not a good conveyancer, and though the instrument con- cluded, " in witness whereof I set m}' hand and seal," he forscot entirely to put on the seal. Notwithstand- ing that this informality was fatal to tlie legal transfer of the property, the court held that it raised a trust in favor of Wadsworth, and the old soldier's assignees were ordered to convey it to him, although they had subsequently purchased the same property themselves. Courts of equity are not very strict in requiring tlie settlor to follow any particular forms of expression. He need not even use tlie words "trust" and "trustee." Where the agreement Is founded on a valuable consideration, the court will enforce the trust, al- though it is not perfectly created ; and, although the instrument does not pass the title to the property, if, from the document, the court can make out the terms and conditions of the trust, and the party to be benefited. Where the settlor has attempted to make a voluntary disposition of his property, the rule, however, is different. Ellison v. Ellison, EQUITY CASES SUrPLIl'IED. 9 6 Ves. 6oG; 1 Wh. & Tud. Ld. Cas. Eq. 278, Is the leading English case on this point. In that case Lord Chancellor Eldon said : "I take the distinction to be, that if you want the assistance of the court to constitute you cestui que trust, and the instrument is vol- untary, you shall not have that assistance for the purpose of con- stituting you cestui que trust; as upon a covenant to transfer stock, etc., if it rests In covenant, and is purely voluntary, this court will not execute that voluntary covenant. But if the party has completely transferred stock, etc., though it is volun- tary, yet the legal conveyance being effectually made, the equit- able interest will be enforced by this court." Therefore, where a settlor actually constitutes himself a trustee for volunteers, a court of equity will enforce the trusts declared; as if he simply declares himself to be a trustee of tlie property for another, a com- plete trust is created and the court will act upon it. But informally attempting to dispose of au interest (as in the soldier's case above) will not, if the donee be a volunteer, (i.e., one who pays nothing for the property, but gets it as a gift) consti- tute a trust for him. In an English case, Mr. Crauford made tlie following indorsement upon a receipt for a subscription in the Forth and Clyde Navigation Company: " I do hereby assign to my daughter, Anna Crauford, all my right, title and interest of, and in, tho enclosed call, and all other calls e strange if the law of this country did not afford any remedy. It would be great in- justice if an individual cannot have his property without being liable to the estimate of people who have not his feelings upon it." Fells V. Reed, 3 Vesey, 71. Other cases where damages would not compensate may be mentioned. Thus, though as settled in Cuddee 1). Rutter, the specific execution of a contract to deliver stock will not be decreed, yet when the kind of stock is limited, it may be. "I agree," said the Vice-Chancellor, in Duncuft v. Albrecht, 12 Sim. 199, " that it has long since been decided that you cannot have a bill for the specific performance of an agreement to transfer a cer- tain quantity of stock. But in my opinion there is not any sort of * analogy between a quantity of three per cents or any other stock of that description, which is always to be had of any person who chooses to apply for it in the market, and a certain number of rail- way shares of a particular description, which railway shares are limited in number, and which, as has been observed, are not always to be had in the market." Another great Chancellor has put the case of a ship carpenter purchasing timber which was peculiarly 120 EQUITY CASES SIMPLIFIED. convenient to him by reason of its vicinity, or an owner of land covered with timber contracting to sell it in order to clear his land and assumes that In both these cases equity would decree a specific performance. Buxton v. Lister, 3 Atk. 386. Every case depends on the particular circumstances, the test being, are damages a com- plete remedy? 2. Where a fiduciary relation exists between the parties. Here equity to prevent an abuse of power, and by virtue of its jurisdic- tion over trustees, will nearly always interfere. EQUITY CASES SIMPLIFIED. 121 CONTRACTS RELATING TO REAL PROPERTY. SETON V. SL,AX>E. [7 Ves. 265; 2 Wh. & Tud. Ld. Cas. Eq. 513.] The plaintiflF agreed to sell certain real estate to de- fendant, and it was agreed that he should make a good title in two mouths. Defendant afterwards gave him a notice that if he did not do so he should insist on the return of his deposit with interest. The plaintiff, however, only delivered his abstract of title a few days before the expiration of the two months, which the defendant then received and kept without objection. The court held that the vendee, under the circum- stances, was not entitled to insist on time as of the essence of the contract, and so specific performance was decreed. liESTEB V. FOXCROFT. [1 CoUes P. C. 108; 1 Wh. & Tad. Ld. Cas. Eq. 768.] By parol merely, Lester agreed that he would pull down certain houses on Foxcroft's land, and build other new ones iu their place ; and in consideration of this Foxcroft, also by parol, agreed that he would give Lester a long lease of the property. Lester went to work, pulled down the houses and built some of the 122 EQUITY CASES SIMPLIFIED. others, but when he applied for the lease Foxcroft re- fused to give it ; and when Lester threatened to go to law about it, referred him to the Statute of Frauds, which requires leases of lands to be in writing to be binding. But Lester, like a wise man, went to the Court of Chancery and asked the specific performance of the contract on Foxcroft's part. And what is more, he got it, notwithstanding the Statute of Frauds, on the ground of his own part performance of the parol agreement. WOOIjLAM v. hearn. [7 Ves. 221 ; 2 Wh. & Tud. Ld. Cas. Eq. 484.] The plaintiff filed a bill for the specific performance of a written agreement. This agreement when pro- duced provided for a rent of $73.10 per annum ; but the plaintiff said that this was a mistake, it should only have been $60, "and I want," he said, "the court to order the defendant to execute me a lease ac- cording to the agreement with this variation : that the rent be $60." But the court refused, on the ground that, though a defendant resisting a specific performance may go into parol evidence to show that by fraud or mistake the written agreement does not express the real terras, the plaintiff cannot do so for the purpose of obtaining a specific performance with a variation. We have seen that as to chattels, courts of equity do not usually decree specillc performance — damages being, as a rule, a sufficient recompense. But in contracts respecting land it is not so. The EQUITY CASES SIMPLIFIED. 123 locality, soil, or character of the land gives It generally a peculiar value in the eye of an Intending purchaser, so that it. cannot be re- placed by other land of the same precise value, but not having the same local conveniences, and therefore a compensation in damages would not be adequate relief. It would not attain the object de- sired, and it would generally frustrate the plans of the purchaser, and therefore the jurisdiction of courts of equity to decree specific performance Is, in cases of contracts respecting lands, universally maintained, whereas in cases of chattels it is limited to special cir- cumstances. Snell, Eq. 529. Seton V. Slade shows how far equity will go in enforcing agreements concerning land. At common law one party to a con- tract cannot complain of a breach by the other, unless he can show his own compliance with its terms in every particular. Seton v. Slade shows that, though the terms may not have been strictly com- piled with, yet specific performance may be decreed. But in such a case the court will take care to make proper compensation. And this principle of decreeing specific performance with compensation is applied where the vendor seeks specific performance and h^s not exactly the Interest he contracted to sell, but the difference is not material ; but a purchaser cannot be forced to accept lands of a dif- ferent tenure to what he contracted to buy, for this is not consid- ered a matter for compensation. Lester v. Foxcroft shows that, in spite of the Statute of Frauds requiring agreements as to lands to be in writing, courts of equity consider that after a person has been allowed to do acts in part performance, it would be a fraud on the part of the person who has allowed him to do such acts not to perform his part of the contract. Acts to be a part performance must be exclusively referable to the agreement, and such acts as payment of purchase-money, delivery of abstract, and the like, are not sufficient part performance ; but letting a purchaser into possession is. There are also two other cases in which specific performance of a parol contract will be decreed; and they are (1) where it is fully set forth by the plaintiff in his bill, and admitted by the defendant in his answer, and he does not insist on the statute as a defence ; and (2) where the agreement was intended to be reduced into, writing according to the statute, but was prevented by the fraud of one of the parties. With regard to the decision in Woollam v. Hearn, that a plaintiff cannot get specific performance of a contract with a parol variation, though good as a general rule, yet it must be noted that there are 124 EQUITY CASES SIMPLIFIED. three cases in which a plaintiff may so obtain specific performance with a subsequent parol variation, and they are of a similar nature to the three cases above stated in which specific performance will be decreed of an original parol contract, viz. : (1) after such acts of part performance of the parol variation; (2) where defendant sets up the parol variation, and plaintiff seeks specific performance with it ; and (3) where it has not been put into writing because of fraud. Indermaur Ld. Cas. Eq. 87. EQUITY CASES SIMPLIFIED. 125 WHEN SPECIFIC PERFORMANCE iJOT DECREED. DODSON V, SWAN. [2W. Va. 511.] Mr. Dodson, finding that he was indicted by the grand jury of Marshall County, West Virginia, was in a hurry to leave the State, and was advised by his friend Swan to stand not on the order of his going, if he did not wish to be locked up. To enable him to escape money was necessary, and Swan, like a good friend, offered to buy his farm. Dodson agreed; a conti'act Avas drawn up, and Swan paid him a part of the purchase-money for travelling expenses. The storm blew over, Dodson came back, but when Swan tendered him the balance of the purchase-money, in ac- cordance with the agreement, he refused to convey the property, and Swan filed a bill in chancery to compel him. But he did not succeed. " It is well settled," said the court, " that where a contract grows out of an illegal or immoral act, a court of justice will not lend its aid to enforce it. It is both an illegal and an im- moral act to aid or assist a felon to avoid or escape from prosecution or punishment." The above case is given as an illustration of the cases in which — whether the contract be personal or real — a court of equity — without taking into consideration whether damages are a sufficient relief or not — will not decree specific performance. These are : — 1 . An agreement arising out of or providing for an illegal or im- moral act. 126 EQUITY CASEy SIMPLIFIED. 2. An agreement without consideration. Thus an agreement to make a gift cannot, as a rule, be specifically enforced. 3. A contract which the court has no means to enforce. Thus a singer agrees to sing at a certain theatre, but when the time comes refuses to carry out her contract. A court of equity will not decree its specific performance, because it cannot compel her to sinp. But it may accomplish this result indirectly, by restraining her from singing any where else. See Lumley v. Wagner, 1 Lawson's Ld. Gas. Simp. 268. Other contracts of this class are contracts to transfer the good will of a business, to build and repair premises, and revocable con- tracts. 4. Contracts wanting in mutuality. An infant cannot maintain a suit for specific performance, because a court of equity cannot compel a specific performance against him. EQUITY CASES SIMPLIFIED. 127 JURISDICTION OF EQUITY— ''EQUITY ACTS IN PERSONAM. " PENIf V. LORD BALTIMORE. [1 Ves. la : 3 Wh. & Tud. Ld. Gas. Eq. 923.] The names of the parties to this suit are familiar enough to the American student, for one gave his name to a great State, the other to a great city. They had each by grants from the King of England obtained large tracts of land in America, notably the then prov- inces of Pennsylvania and Baltimore. They had en- tered into articles settling the boundaries of these provinces, and the defendant, not being willing to exe- cute his part, Mr. Penn ( both he and Lord Baltimore being at the time in England ) sought a specific per- formance of the articles by an English court of equity. Lord Baltimore objected that the property was out of the jurisdiction of the court. But the court decided that Penn was entitled to specific performance of the articles, for though the court had no original jurisdiction on the direct ques- tion of the original right of the boundaries, the prop- erty being abroad, yet that did not at all matter, as the suit was founded on the articles, and the court acted in personam. The above case forms a good illustration of the well-knowu maxim or principle, "Equity acts in personam;^' a maxim which indeed shows the great difference in the jurisdiction of equity to 128 EQUITY CASES SIMPLIFIED. that of law ; thus at law the only remedy on a breach of contract was an action for damages ; but in equity, as the court acted in personam, the party could always be compelle.d to do the very act. So in this case, although the property was abroad, and, therefore, the court really in respect of the property had no jurisdiction, yet the parties being within its jurisdiction, the court was aljle to award the proper remedy, acting not at all on the property, but directly on the persons. EQUITY CASES SIMl'LIFIED. 129 IIS^JUl^CTIOKS. ENJOINING PROCEEDINGS AT LAW. MARINE INSURANCE CO. v. HODGSON. [7 Cranch, 332.] The schooner Sophia was insured for a voyage in the Marine Insurance Company for $8,000 ; and being- captured on the voyage, the owners brought an action at law on the policy and recovered judgment for the $8,000. The insurance company now asked a Court of Equity to enjoin the collection of this judgment on the ground that the owners had been guilty of misrep- resentation in obtaining the insurance. It was argued by their counsel that a court of equity had jurisdic- tion to enjoin proceedings in courts of law. The court decided that it had. " Without attempting," said Chief Justice Marshall, " to draw any precise line to which Courts of Equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was 130 EQUITY CASES SIMPLIFIED. prevented hy fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a Court of Chancery." " On the other hand," said the judge, " it may with equal safety be laid down as a general rule that a de- fence cannot be set up in equity which has been fully tried at law, although it may be the opinion of tbe court that the defence ought to have been sustained at law." As the company were not prevented from making the defence (the false representation) in the law suit, the injunction Avas I'efused. Courts of law could redress injuries, after they were committed, but they had no power to prevent their commission. To supply this injustice came the jurisdiction of equity to issue an injunction. An injunction is defined to be a writ issued by a court of equity commanding a defendant to perform some act, or restaining him from the commission or continuance of some act. Bisp. Eq. 399. An injunction is either mandatory or prohibitory. The former compels the defendant to do something; the latter restrains him from doing something. But the former is not much used, for the order of a court of equity is not direct, but in a roundabout way commands while it apparently prohibits. Thus if A. held papers from B. and obtained the aid of the court, the writ instead of com- manding A. to deliver to B. the papers, would order A. not to keep them from B. Injunctions are generally issued for three purposes, viz.. I. To restrain proceedings at law. II. To enforce a contract or to forbid a breach thereof. III. To prevent a tort, i.e., a wrong, independent of contract. I. To restrain proceedings at law. The right of a Court of Chan- cery to restraiu proceedings in the law courts was at first stoutly re- sisted by the common law judges as impairing their dignity. Earl of Oxford's Case, 1 Ch. Eep. 1 ; 2 Wh. & Tud. Ld. Cas. Eq. 601, 611. But equity does not attempt to dictate to the law court, but acting in personam enjoins the parties from proceeding. This juris- diction of equity, as stated by Chief Justice Marshall in the above EQUITY CASES SIMPLIFIED. 131 case, is now well settled. The cases in which equity will^oj stay proceedings at law are — 1. Where the matter is criminal. 2. Where the ground of defense was equally available at law. See Marine Insurance Co. v. B.ogdsoii, supra. 132 EQUITY CASES SIMPLIFIED. INJUNCTIONS TO RESTRAIN VIOLATION OF CONTRACTS. STEWARD V. WINTERS. [4 Sandf. Ch. 587.] Mr. Steward was the owner of the store No. 18 William Street, New York City. He leased it to Win- ters for two years, the lease providing that the store was to be occupied for the regular dry goods jobbing business, and for no other kind of business. Winters went into possession and immediately began to make an auction mart of it. Over the door he suspended a red flag, and advertisements of the daily auction sales to take place at No. 18 appeared every morning in the newspapers. Now, Mr. Steward had not inserted that covenant in the lease for nothing ; he had an objection to auction sales in his building, and he called upon Winters to stop them. But the latter would do nothing t)f the kind, and Mr. Steward was obliged to apply to the Court of Chancery in the matter. EQUITY CASES SIMPLIFIED. 133 The court ordered Winters to stop the auction stiles. "Where the parties," said the Vice-Chancellor, "by an express stipuhition have themselves determined that a particular trade or business conducted by the one will be injurious or offensive to the other, and there is a continuing breach of the stipulation by the one, which this court can perceive may be highly detrimen- tal to the other, although, on the facts presented, it is not clear that there is a serious injury, and it is mani- fest that the extent of the injury is difficult to be ascer- tained or measured in damages, it is the duty of the court by injunction to restrain further infractions of the covenant, thereby preventing a multiplicity of petty suits at law, and, at the same time, protecting the rights of the complainant." The jurisdiction of equity to enjoin the doing of a thing is founded upon very good reasons. In many cases damages are no redress to the sufferer at all. Bbt, in addition to this, the injury is generally a'continuing one, and the sufferer, though he might have obtained damages for the past injury, would not be able to assess his future discomfort, and thus would be put to the expense of bringing a suit once a month or once a year, as the case may be. Therefore equity intervenes, and to prevent irreparable mischief which could not be compensated by a money judgment, or to sup- press interminable litigation, orders the party to cease his injuri- ous acts. The jurisdiction of equity to forbid a violation of the terms of a contract, is coextensive with its power to compel specific per- formance. Often, where the court cannot decree specific perform- ance on account of its inability to carry the decree into effect, it will grant an injunction to restrain the doing of an act contrary to that agreed on, and thus indirectly compel a specific performance. This was the singer's case. She could not be compelled to sing at the plaintiff's theatre, but the court restrained her from singing at 134 EQUITY CASES SIMPLIFIED. any other, and thereby the same *nd was attained. Lumley v. Wagner, 1 Lawson's Ld. Cas. Simp. 268. Sometimes the contract is not to do a thing. Here equity can act directly, as in the case of Steward v. Winters, above. 136 EQUITY CASES SIMPLIFIED. brought for a nuisance upon the ground that the alleged nuisance produces material injury to the prop- erty, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is pro- ductive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's jjersonal freedom, anything that discomposes or injuri- ously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must un- doubtedly depend greatly on the circumstances of the the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those opera- tions of trade which may be carried on in his imme- diate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaiujt, be- cause to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighborhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very dif- ferent consideration. I think, my lords, that in a case of that description, the submission which is required from persons liviug in society to that amount of dis- comfort which may be necessary for the legitimate and free exercise of the trade of their neiahbors, would not EQUITY CASES SIMPLIFIED. 137 apply to the circumstances, the immediate result of which is sensible injuiy to the value of property." Aiid the judges held, also, that the fact that the local- ity where the offensive trade was carried on was one generally employed for the purpose of that and similar trades, would not exempt the company from liability to an action for damages in respect of injury created by it to property in the neighborhood. Mr. Tipping now came into chancery and prayed that they might be enjoined from carrying on their offensive works. Here the defendants laid particular stress on the fact that the plaintiff had nothing to com- plain of because he had moved into the proximity of the offensive trade. But the court held that the injunc- tion would not be refused on that ground, and the de- fendants were ordered to stop their mills. Injunctions to restrain nuisances are a constant subject of equity's action, and will be issued where plaintiff 's right is clear and the damage cannot be repaired by a money judgment. The nuisance, however, must be imminent; a mere threat will not be sufficient. The kinds of nuisances which will be thus enjoined are very many — thus noises, offensive smells, waste, pollution of air and water, will all be abated, in a proper case, by the writ of in- junction issued out of the Court of Chancery. 138 EQUITY CASES SIMPLIFIED. PUBLIC NUISANCE ENJOINED BY EQUITY. HAMBLTON v. WHITRIDGE. [11 Md. 128.] Mile. Margaret Hamilton purchased a house on Frederick Street, in the city of Baltimore, had it fur- nished, and was about to move in, when she found herself the defendant in a chancery suit. There is nothing wrong in buying a house, or in occupying it, but Miss Hamilton's new neighbors, having discovered that she was a woman of easy virtue who had kept a house of ill-fame in another part of the city, were shocked, and asked the Court of Chancery to restrain her from E HELD. [2 Sim. (N. s.) 133.] The sound of church bells is often a very pleasant one to hear at a distance. But like some views, it is dis- tance which generally lends enchantment to the sound ; for it may be questioned whether the bell-ringers, them- selves, experience any particular sensatiojj of pleasure from the melodies they produce. Over thirty years ago, Mr. Soltau was a steady-going family man, residing in a semi-detached house at a place called Clapham. The adjoining house was, from 1817 to 1848, occupied as a private house, but in the latter year it was bought by a religious order of Roman Catholics, calling themselves "The Redemptionist Fathers," and those gentlemen converted the house into a chapel, and appointed De Held, a Roman Catholic priest, to officiate therein. One of the first acts of Mr. De Held, on entering on the scene of his ministrations, was to set up a harsh and discordant bell, and to ring it with pious unscrupu- lousness at the most unearthly and unnecessary times. As Soltau, speaking for himself and the neighbors gen- erally, said plainly: "The practice we complain of is offensive alike to our ears and feelings ; disturbs the quiet and comfort of our houses ; molests us in our ensraofements, whether of business, amusement or devo- tion ; and is peculiarly injurious and distressing when 144 EQUITY CASES SIMPLIFIED. members of our household happen to be invalids ; it tends also to depreciate the value of our dwelling houses." This was a complaint emanating, not from the general body of Claphamites, who, being at a greater distance, were more or less indifferent to the matter, but from those who were the greatest sufferers, the immediate neighbors, and it was on this ground of special annoyance that Mr. Soltau was considered entitled to be heard. Mr. Soltau made out such a good case that the Court of Chancery enjoined the ' ' Fathers ' ' from ringing their bells so as to disturb and annoy him and his family. About five years ago, a chime of church bells in Philadelphia — the bells of St. Marks' Church — were restrained on account of its disturbing the neighborhood . The parties differed materially about the facts. The plaintiff said : " That the noise of such ringing was harsh, loud, high, sharp, clanging, discordant, producing a nuisance which disturbed rest and sleep, distracted the mind from any seri- ous employment, interfered with conversation in the immediate neighborhood, lessened or destroyed social and domestic inter- course, peace, and happiness ; and in particular, was detrimental to the health and comfort of invalids, children, and persons whose nervous systems are delicately organized ; that the effect was not limited to the periods of actual ringing, but the anticipation of its beginning produced a nervousness and excitement which to all is painful, and to some intolerable." While the defendant insisted "that the chiming complained of is neither a public nor private nuisance, being in truth and fact musical, mellow, soft, well pitched, sweet, and harmonious, and of such an agreeable charac- ter that it has grown to constitute one of the chief attractions of the neighborhood, and has materially added to, rather than detracted from, the enjoyment of social and domestic life among those residing in the vicinity." Also, " That bell-ringing is part of the ordinary and usual sounds of city life, the chiming complained of being far less calculated to disturb ordinary citizens than the customary bell-ringing In factories, schools, and some other churches, or the noises of cars, wagons, steam whistles, and other sounds incident to a city; and that even if they produced on some EQUITY CASES SIMPLIFIED. 145 f persons, when first heard, a temporary annoyance, the hearers ■would soon get so accustomed to the sound that they would not notice it, except where an Imaginary or trifling annoyance is fos- tered by wilful prejudice or heightened by nervous excitability." The court observed: "It is alleged, on the other hand, by the defendants, that bell-ringing and the chiming of bells date from a remote period in the Christian Church, that they have been received with general favor and acceptance, and that it would be difficult to find any great poet, from Dante down to our own times, whose verse does not bear witness to this truth : that the sounds so much complained of are not a mere accidental accompaniment, but have from associations become an integral part of the celebration of the Sunday, which brings an opportunity for rest to all; and that the court should be slow to believe that a custom, hallowed by the observance and sanctioned by the assent of successive generations of worshipers, can be injurious; and that in fact, in the present case, as will be apparent on examining the testimony, if some per- sons inveigh against the bells which give occasion for this suit, other and not less numerous voices are raised in their, behalf. The court is consequently asked to infer, that if the sufferings for which the bill seeks relief are not imaginary, they are the inevit- able offspring or accompaniment of nervous disease, although a morbid or excited fancy attributes them to the peals issuing from the tower of defendants' church." Eminent physicians, however, testified to the deleterious effects of the chiming. It appeared, too, that the bells were rung four times on Sunday, and twice on every week-day, and on festivals and Saints' days, from ten minutes to half an hour at a time, averaging from seventy-five to ninety- four strokes a minute. This was deemed too much of a good thing and was enjoined. Harrison v. St. Marks' Church, 12 Phila. 259. I take the report of this case from Mr. Irving Browne's very enter- taining " Humorous Phases of the Law." 10 146 EQUITY CASES SIMPLIFIED. NUISANCE FROM NOISE — IMPROPER USE. BRODER V. SArLLiARD. [2 Ch. Div. 692.] Mr. Saillard, as the judge remarked, found himself in a very unfortunate position. He had rented a house with a stable adjoining at a high rent and on the usual terms. He had occupied the house as all people do who have houses, and he had put his horses in the stable as all people do who have stables, when suddenly, very much to his annoyance, he found himself the defendant in a chancery suit. The tenant of a house which was close to the stable had notified the landlord that the horses of Mr. Saillard made such a noise that he would have to leave ; and the landlord, in order not to lose a good tenant, asked the Court of Chancery to make Mr. Saillard move his horses away. " It is very hard," said the judge, " on the defendant, who is a gentleman, with these horses in his stable, and whose horses do not appear to make more than the ordinary noise that horses do, if he is not to be allowed to keep his horses in his stable. On the other hand, it is very hard on the plaintiffs if they cannot sleep at night, and cannot enjoy their house because the noise from the stables is so great as seriously to inter- fere with their rest and comfort. The question is on which side the law inclines." The judge came to the conclusion that the law inclined in favor of the plaintiff, and Mr. Saillard's EQUITY CASES SIMPLIFIED. 147 horses had to go. "If a stable is huilt," said he, "not as stables usually are, at some distance from dwelling houses, but next to the wall of the plaintiff's dwelling house, in such a position that the noise would actually prevent the neighbors sleeping, and would frighten them out of their sleep, and would prevent their ordinary and comfortable enjoyment of their dwelling house, all I can say is, that is not a proper place to keep horses, although the horses may be ordi- narily quiet." The test in all these cases, to determine whether the noise will be stopped by injunction, is not whether the party is using his property for lawful and proper purposes, but is whether the use of the property is reasonable, in view of the right of the neighbors to peace and quietness. Said Jessel, M. R., in the above case: "I take it the law is this : that a man is entitled to the comfortable enjoyment of his dwelling house. If his neighbor makes such a noise as to interfere with the ordinary use and enjoyment of his dwelling house, so as to cause serious annoyance and disturbance, the occupier of the dwelling house is entitled to be protected from it. It is no answer to say that the defendant is only making a reasonable use of his property, because there are many trades and many occupations which are not only reasonable but necessary to be followed, and which still cannot be allowed to be followed in the proximity of dwelling houses so as to interfere with the comfort of their inhabitants. I suppose a blacksmith's trade is as neces- sary as most trades in this kingdom, or I might take instances of many noisy and offensive trades, some of which are absolutely necessary, and some of which no doubt may not only be reason- ably followed, but to which it is absolutely and indispensably necessary for the welfare of mankind that some houses and some pieces of land should be devoted; therefore I think that (i.e., that plaintiff is making a lawful use of his property) is not the test." In a somewhat earlier case Chancellor Selborne laid down the same test thus : " In a case of nuisance of this character there are always two things to be considered, — the right of the plaintiff and the right of the defendant. If the houses adjoining each other are so built that it is manifest that each adjoining inhabitant was intended to enjoy his own property for the ordinary purposes for 148 EQUITY CASES SIMPLIFIED. which it and all the different parts of it were constructed, then so long as the house Is so used there is nothing that can be regarded In law as a nuisance which the other party has a right to prevent. But, on the other hand, if either party turns his house or any portion of it to unusual purposes, in such a manner as to produce substantial injury to his neighbor, it appears to me that this is not, according to principle, a reasonable use of his property, and his neighbor, showing substantial injury, is entitled to protection." Ball V. Ray, L. R. 8 Ch. App. 467. EQUITY CASES SIMPLIFIED. 149 NUISANCE FROM NOISE— PROPER USE. POOL V. COLEMAN, [8 Daly, 113.] " Drat that baby," said Mr. Pool. Now, Mr. Pool had very good reasons for not admiring that particular infant to which he referred. He lived on the fourth floor of a French flat, on Madison Avenue, New York City. The man up stairs was Mr. Coleman ; and the man up stairs, unfortunately for Mr. Pool's peace of mind, had a baby — a cross baby, at that. The baby was at that infantile period called teething, and refused to be quiet, either day or night, except while it was being drawn across the room in a baby carriage. The flats, being put up to rent, were like the houses in Pentonville, described by Thackeray, — "where you hear rather better outside the room than in ;"' so the rumbling of the carriage overhead was very clearly heard below, and what put the baby to sleep kept Mr. Pool awake. Mr. Pool protested, but it was of no use, so he asked the court to abolish the mid- night rides of the i.nfant terrible. The terrible infant, however, triumphed, for the court would not even order him to be rocked in a cradle, instead of drawn round in a carriage. The judgment of the court contains such an interesting discussion of the questions which the case raised, 150 EQUITY CASES SIMPLIFIED. that a le^agthy extract from it may not be out of place : — " Certain noises," said tlie judge who delivered the opinion, " lilie the noitJe of a pianoforte in a neigh- bor's house, or a noise of a neighbor's children in a nurseiy, we must always expect, and must to a con- siderable extent put up with. In the city of New- York various causes have combined to bring about the crowding of numbers of people into one house. Poverty forces the poor into tenement houses, and fashion lures the well-to-do into French flats. But there can be but one law for the two classes of dwell- ings ; or, perhaps, I might say for both varieties of that species of abode called apartment houses. The re- striction of the use of a baby carriage in a French flat would logically be followed by the prevention of the use of sewing machines in tenement houses. Certainly, the noise of an ordinary sewing machine must be quite as ofl'ensive as that of a parlor carriage, and the day laborer needs rest and sleep quite as much as the dweller in a French flat; and yet no man would approve the enjoining the seamstress from stealing a few hours from night for the purposes of her trade. It is true that no laborer is likely to complain of any disturbance of his sleep, for ' weari- ness can snore upon the flint, when restive sloth finds the down pillow hard ; ' but that consideration does not change the principle. Where a man makes himself one of a hundred gathered under a roof, and selects for his home a house so flimsily built that the tread of a woman's bare foot upon a heavily carpeted floor makes a vibration to be complained of by those living on the floor below, he cannot expect the immunity EQUITY CASES SIMPLIFIED. 151 from noise and disturbance which he would enjoy in a house occupied by his own family alone, nor can he restrain other occupants from any use of their own apartments consistent with good neighborship, and with a reasonable regard for the comfort of others. If the rocking of a cradle, the wheeling of a carriage, the whirring of a sewing machine, or the discord of ill-played music, disturb the inmates of the apartment house, no relief by injunction can be obtained, unless the proof be clear that the noise is unreasonable, and made without due regard to the rights and comforts of the occupants. The situation of the dwellers in apart- ments, whilst it has its advantages, must be in some respects less agreeable than that of those who occupy a whole house. They cannot exjiect the same quiet and repose. A man who lives in a hotel must not be surprised if aroused from sleep by the heavy foot of some guest passing by his door at an unseasonable hour. Nor ought the plaintiff to have been surprised by the use of any ordinary means which the defendant mio-ht employ to lull his sick child to sleep. No man has a right to such an immunity from noise that his neif'bbor cannot stir in his own room. There is noth- ino- iai the affidavits to lead me to the conclusion that the defendant in having this carriage instead of a cradle, made a use. of his apartments, which in view of the plaintiff's right to quiet and repose, was unreas- onable. It is probable that a cradle swinging upon pivots, set in ordinary standards, would have answered the purpose as well as the carriage, and as it^ would make no noise, good neighborship might suggest the use of it ; as a matter of law, however, if the defend- ant himself were taken sick, and obliged to walk the 152 EQUITY CASES SIMPLIFIED. floor all night through pain, the plaintiff would have no right to insist that he should put on India rubbers. As has been said, each case must stand by itself, and where people indulge their inclination to be gregarious, they must not expect the quiet that belongs to soli- tude." EQUITY CASES SIMPLIFIED. 153 NO TRADE A NUISANCE PER SE. CA1L,IN V. VALiENTINE. [9 Paige Ch. 575.J 111 the very heart of a populous portion of the great city of New York, the defendant was erecting a build- ing to use as a slaughter-house, when the adjacent property owners went into court to prevent him. Here the defendant admitted that such was his purpose, but denied that it was a nuisance. The court permitted him to go on with the building, but restrained him from using or permitting it to be used as a slaughter-house, until the final hearing of the case, when it would hear evidence as to whether the slaughtering of cattle at the place proposed was not offensive and injurious to the neighboring inhabi- tants. The Chancellor said : " The situation of the defend- ant's building, in reference to the dwellings of the complainants, would, pri7na facie, render the occupa- tion of such building, for the purpose of slaughtering cattle there a nuisance ; and as there is no real necessity that such an offensive business should be carried on in this part of the city, where many valu- able dwelling houses of the best kind are already erected and are continuing to be built, the Vice- Chancellor was right in retaining the injunction until 154 EQUITY CASES SIMPLIFIED. final hearing. The answer of the defendant that a slaughter-house would not be oflfensive to the plaintiff is matter of opinion only. " No trade can be a nuisance, per se, because it Is obvious that there may be, from time to time, Improvements discovered that may make something formerly offensive wholly inoffensive, and it is no reason, because a certain kind of manufacturing establishment, or a certain use of property, has been in a previous case decided to be a nuisance by a court hearing the evidence as to the manner it was conducted, and its results, that, therefore, every manufactory or use of property of the same kind, is to be taken to be a nuisance per se, and without hearing any evidence. Formerly, the rule was different, and the courts used to hold that those trades and uses of property which by experience had been demonstrated to be of a noxious or hurtful character were nuisances, per se. Acting on this principle they have enjoined such things as a blacksmith forge, a beer house, a glass house, a swine sty, a candle factory, a tannery, a privy, etc. But now, thanks to modern progress, the courts have changed all this, and as said by a Scotch judge : " Science has gone far to prevent many things from being a nuisance that were formerly of that description. It is not, therefore, very easy to determine be- forehand, whether or not any given thing shall prove a nuisance." Arnot V. Brown, 1 Macq. 229. But because there are certain trades and uses of property which have been demonstrated to be productive of ill results as a general rule, the court on application to abate such an alleged nuisance, will treat it prima facie as such, and will enjoin it until all the evi- dence on the subject has been produced by the party who is com- plained against. On this ground the temporary injunction in Catlin V. Valentine was granted. A good illustration of this rule arose in St. Louis, in 1879. One Eussell, in an aristocratic part of the city of St. Louis, commenced erecting a building to be used as a livery stable, and the residents made a great effort to have him stopped. But Judge Dillon refused to stop him, telling the complainants that a livery stable in the residence portion of a city is not, as a matter of law, a nuis- ance to the improved property adjoining or near It, or to the neigh- bors. But at the same time he said to Kussell : " You may proceed to finish your building, and use it for a livery stable. But if it shall, hereafter, be found by a jury or court that your stable does interfere with the comfortable enjoyment of the neighboring prop- EQUITY CASES SIMPLIFIED. 155 «Tty, you cannot complain if yon are perpetually enjoined from the further use of it for the purpose for which it was designed," Flint V. Bussell, 8 Cent. L. J, 68. 156 EQUITY CASES SIMPLIFIED. NUISANCE MAY BE DISAGREEABLE WITHOUT BEING HURTFUL. WAIiTEJR V. SELFE. [4 DeG. & Sm. 318.] Near the residence of Mr. Walter, there was a brick- yard, and in the process of burning bricks there came from the brick-yard vapors and floating substances which were very disagreeable to Mr. Walter, so disa- greeable that he asked the Court of Chancery to re- strain them. The evidence showed that these vapors were very obnoxious to the inmates of Mr. Walter's house, but it did not appear that thpy were hurtful in their effect, or that they produced any tangible injury to his property. The question, therefore, arose whether a smell that is simply disagreeable to ordinary persons, but not hurt- ful, is such an annoyance to ordinary persons as to make it a nuisance. The court said it was. *' The question," arises said the Vice-Chancellor, "whether this is a nuisance to the plaintiff or occupier of his house, a question which must, I think, be answered in the affirmative, though whether to the extent of being noxious to human health, to animal health in any sense, or to vegetable health, I do not say or deem it neces- sary to Intimate an opinion. * * * j ^m of opin- ion that this point is against the defendant. As far as the human frame in an average state of health is con- EQUITY CASES SIMPLIFIED. 157 cerned mere unsiilubiity, mere unwholesomeness, may possibly, as I have said, be out of the case, but the same may perhaps be said of styed hogs, melting tal- low, and other such inventions less sweet than useful. That does not decide the dispute, a smell may be sick- ening though not in a medical sense. Ingredients may I believe be mixed with air of such a nature as to aflPect the palate disagreeably and offensively though not unwholesomely. A man's body may be in a state of chronic discomfort, still retaining its health, and per- haps even suffer more annoyance from nauseous or fetid air from being in a hale condition." And the brick-maker had to close his yard. A chancellor, as has been well said, does not wait till noisome trades and unwholesome gases kill somebody before he proceeds to restrain. Dennis v. Eckhardt, 3 Grant's Cas. 392. Noxious vapors need not be hurtful or unwholesome to be nuisances ; it is suflScient if they are so offensive as to produce such annoyance, inconven- ience or discomfort as to impair the comfortable enjoyment of property by persons of ordinary sensibilities. And it is laid down that the fact that the person complaining is in a delicate state of health, and therefore more susceptible to injury from the nuisance, or that the property injured is of a pecu- liarly delicate character, is no defence. An English case which arose some years ago presented this point very well. Mr. Cook manufactured colored mats. These mats were made from cocoa- nut fibre, dipped in dyes, and then hung out in the air to dry. His neighbor, Forbes, carried on tfie manufacture of chemicals, and when the wind was in the east a kind of gas from Forbes' s chim- neys was blown into Cook's yard, which took the color out of his mats so that he was obliged to dye them over again. When Cook complained, Forbes replied that the gas from his works hurt no- body else, and that Cook ought to keep his mats inside. But the Chancellor did not so reason. "It appears to me quite plain," said he, " that a person has a right to carry on upon his own prop- erty a manufacturing process in which he uses chloride of tin or any sort of metallic dye, and that his neighbor is not at liberty to pour in gas which will interfere with his manufacture. If it can 158 EQUITY CASES SIMPLIFIED. be traced to the neighbor, then, I apprehend, he will be entitled to come here and ask relief." Cook v. Forbes, 5 Bq. Cas. 166. The student should carefully note this distinction between inju- ries to property and personal inconvenience, ■ — viz., that the court will interfere much more readily in the former class of cases than in the latter. If the nuisance injures property to any extent, that is generally enough, while it is not every little inconvenience to per- sonal comfort which will obtain the aid of a Court of Equity for the purpose of restraining the obnoxious cause. EQUITY CASES SIMPLiriED. 159 COMING TO NUISANCE. BRADY V. WEEKS. [3 Barb. 15G.] Mr. Brady and other owners and residents of dwell- ings on Twelfth Street, New York city, filed a bill in equity asking that Weeks should be restrained from using a building near them as a slaughter-house. In answer, Weeks said, first, that his slaughter-house did not cause any smell that any one could object to ; and, secondly, that he had occupied the building in this way for about fourteen years, while the plaintifl^s had only within the last three or four years erected their houses and come to live there. But the court granted the injunction. " To consti- tute a nuisance," they said, '♦ it is not necessary that the noxious trade or business should endanger the health of the neighborhood. It is sufficient if it pro- duces that which is offensive to the senses, and which renders the enjoyment of life and property uncom- fortable. The slaughter-house in question is to be regarded as prima facie a nuisance to the plaintiffs, notwithstanding the qualified denial of the defendant that it is not a nuisance." Nor did Mr. Weeks suc- ceed in his second plea. " When the slaughter-house was erected," the court continued, <' it was remote from the thickly settled part of the city ; but it seems that the city has now grown up to it, and 160 EQUITY CASES SIMPLIFIED. that the necessities of the corporation require the occupation of the lots in the immediate vicinity for dwellinss. When it was erected it incommoded no one, but now it interferes with the enjoyment of life and property, and tends to deprive the plaintiflFs of the use and benefit of their dwellings. There can be no real necessity for conducting such an offensive busi- ness as slaughtering cattle in this part of the city, which is now occupied by valuable and costly dwell- ings. As the city extends, such nuisances should be removed to the vacant ground beyond the immediate neighborhood of the residences of the citizens. This, public policy as well as the health and comfort of the population of the city demands ; and it seems that whenever any offensive trade becomes an injurious nuisance to any person, such person has a remedy by an action on the case for damages, or by writ of nui- sance to have the nuisance abated, upon the principle that every continuance thereof is a new or fresh nui- sance." SMITH V. PHELLIPS. [8 Phila. 10.] Smith was the tenant of a fruit farm, out of which he made his living, and he was, therefore, not at all pleased to see, one day, a building next to where his fruit trees were in blossom turned into a chemical factory. When his lease expired, instead of Smith going somewhere else to carry on his business, he got a renewal, and then set to work to have the court stop EQUITY CASES SIMPLIFIED. 161 the chemical factory, which it was clear was injuring his trees and fruit very much. The chemical manufacturer contended that as Smith knew by experience the effect of the chemicals on the adjoining land, he had voluntarily placed himself in a position to be injured by renting the farm again, and that he ought, therefore, to have no relief. But the court did not think much of this plea, for it held that the fact that Smith would not be driven away from the premises was no defence. St. Helen's Mills Co. v. Tipping, and Brady v. Weeks, decreed, among other things, that the fact that a person comes to the nui- sance voluntarily, instead of the nuisance coming to him, does not deprive him of his right to complain. Smith v. Phillips is an extension of this principle, viz. ; that the fact that the complainant continues to rent the property at the same rent after the nuisance is established is no bar. II 162 EQUITY CASES SIMPLIFIED. NUISANCE — LENGTH OF TIME IMMATERIAL. ROSS V. BUTLER. [19 N. J. (Eq.) 294.] Some of the residents of a New Jersey town com- plained of the smoke which a pottery near them emitted. It appeared that the pottery did throw out a most extraordinary lot of smoke ; and, that the smoke being of the blackest and thickest kind, was very offensive to the neighborhood ; but as it also appeared that it only occurred twice each month, for twelve hours at a time, the defendant tried to defend himself on this ground. But the court held that time was not an element to be considered. •' I am not aware,'.' said the Chancel- lor, " of any authority or established principle hold- ing that a clear unmistakable nuisance, which it is intended to commit periodically will be permitted, because it does not exist the gi-eater portion of the time, but only for a small portion of it. The court will not determine that a family shall have their dwelling house made uncomfortable to live in for twelve hours, once in two weeks, or that they shall protect themselves by closing the house tightly, and remaining in-doors for that time. It is surely no justi- fication to a wrong-doer that he takes away only one twenty-eighth of his neighbor's property, comfort, or life. The qualifications contained in the opinions of EQUITY CASES SIMPLIFIED. 163 judges that a lawful business will not be restrained for every trifling inconvenience, and that persons must not stand on extreme rights, and bring actions in respect to every matter of annoyance, does not refer to the proportion of time for which the nuisance iS continued, but only the degree or kind of annoyance." If the act complained of is really a nuisance, the frequency of its repetitions, or the length of its maintenance, is not a matter to be considered. The same is true of a public nuisance. Thomas Gallagher, of Massachusetts, being prosecuted for maintaining a common nuisance, to wit, a tenement, for the illegal sale of intoxi- cating liquors, the proof was that the tenement was a tent in which Thomas had dispensed whiskey and water for the space of only two hours. Yet Thomas did not escape the penalty. It was the nature of the act done, and not the length of time during which it was committed, that constituted the offence, quoth the court. Com. v. Gallagher, 1 Allen, 592. 164: EQUITY CASES SIMPLIFIED. INFRINGEMENT OF PATENTS. CALDWELL v. VANVLISSENGEN. [9 Hare, 415.] In the year 1838, there was granted to James Lowe, a patent for a steam screw for propelling vessels. Twelve years thereafter some ship-owners in Holland commenced to manufacture these screws, and to apply them to their steamships which ran between Holland and England. Finding this out, Lowe's assignees, the owners of the patent, applied to the Court of Chancery to enjoin the Dutchmen from using the patent in Eng- lish waters. The defendants' lawyer had two objections to offer, viz.: — 1. lu the first place he said that the court could not exercise its jurisdiction restraining the use by foreigners of the patent on board a ship built in a foreign coun- try, and owned and manned by subjects of that country. 2. In the second place, he argued that the plaintiffs should first establish at law that their patent was a valid one. But the Chancellor overruled both objections. "I take," said he, " the rule to be universal that foreigners are, in all cases, subject to the laws of the country in which they may happen to be," and as to the second point, he said : " The question whether the court will EQUITY CASES SIMPLIFIED. I(j5 interfere to protect a patentee before he has established his right at law, or will suspend its interference until the right at law has been established, appears to nie to depend upon very simple principles. It is part of the duty of this court to protect property pending litiga- tion, but when it is called on to exercise that duty, the court requires some proof of title in the party who calls for its interference. In the case of a new patent this proof is wanting ; the public, whose interests are affected by the patent, have had no opportunity of con- testing the validity of the patentee's title, and the court therefore refuses to interfere until his right has been established at law. But in a case where there has been long enjoyment under the patent (the enjoy- ment, of course, including use), the public have had the opportunity of contesting the patent, and the fact of their not having done so successfully affords at least prima facie evidence that the title of the patentee is good, and the court therefore interferes before the right is established at law. In the present case, I think that the plaintiffs have proved such a case of en- joyment under the patent, and of their title having been maintained at law against the several attempts which have been made to impeach it, that the court is bound at once to interfere for their protection," and the injunction was issued. Equity's relief by injunction is very efficacious against those who infringe patent rights, and is better than an action for damages at law, in three ways : First, the court will order an inspection of the defendant's machinery or premises, to see in what particulars the plaintiff 's patent is being infringed ; second, it will perpetually enjoin these infringements, and thirdly, it will make the defendant account for the profits he has made, and will make him show them. Of course, the plaintiff must have a valid patent in order to give 166 EQUITY CASES SIMPLIFIED. him any title to come into equity for relief; but the above case es- tablishes the rule that when the plaintiff 's title Is admitted or seems clear from all the circumstances to the court, equity will not com- pel him to establish it at law, and from the length of time of its ex- istence a presumption of an exclusive right will arise. EQUITY CASES SIMPLIFIED. 107 LITERARY PIRACY. PRINCE ATiBERT v. STRANGE. [1 MacN. & G. 25.1 When Queen Victoria was a good many years younger tlian she is now, she and her husband, to amuse themselves, made some etchings, and had copies made for themselves and their intimate friends, on a private press. Somebody surreptitiously obtained a copy of the set and sold them to a bookseller, who, knowing the public taste for anything smacking of royalty, advertised the forthcoming publication of the etchings and solicited orders. The pictures must have been very bad, for Prince Albert, when he heard that they were going to be given to the public, obtained from the Court of Chancery an injunction restraining their publication, as also that of the catalogue an- nouncing them, by the defendant, although he was a bona fide purchaser. This was on the ground that the author or composer of a work of literature, art or sci- ence, as long as it is unpublished, has a right in it which no one can invade, without his consent. EOL.SOM v. MARSH. [2 Story, 100.] Jared Sparks wrote a " Life of Washington , " in twelve volumes, and duly copyrighted it according to the laws 168 EQUITY CASES SIMPLIFIED. of the United Stiites in this regard. Several years after, theEcv. Charles "W.Uphain was seized with a like desire to honor the father of his country in a like way, and soon from his pen there appeared a "Life of Washington" in two volumes. When Mr. Sparks' publishers came to look at the new work, they discov- ered that there was a good deal of similarity between the two. Of the 866 jjages of Mr. Uiiham's work, 353 pages had been copied entire from Mr. Sparks' " Life." Their remonstrances being in vain, they sought the assistance of the Court of Chancery, where an injunction was obtained restraining Mr. Upham from selling his book, and ordering an account of his profits to be taken. After a work is published there is no common-law copyright in the United States. Au author who desires to publish his book and obtain a monopoly of its sale must comply with the copyright statutes, by entering it with the Librarian of Congress, and print- ing upon each copy the notice of copyright. But before publication an author has a common-law copyright, and no one who has obtained his work without his consent can make any use of it. Printing a few copies of a book or sketch for the use of your friends, or delivering a lecture to students, or per- forming a play on the stage, is held not to be a publication of the thing so as to divest tlie author's property. An author who has duly copyrighted his work holds title against the world, and equity will enjoin any person who publishes it without his consent. To this principle, however, there are two qualifications : — 1. Equity will not assist the proprietor of an immoral, libelous, ob- scene or seditious book, pamphlet or work of art. The United States Circuit Court a few years since refused to enjoin the unauthorized production of the " Black Crook," on the ground that " it panders to a prurient curiosity or an obscene imagination by very questiona- ble exhibitions and attitudes of the female person." Martinetti v. Maguire, 1 Deady, 216. 2. Equity will not enjoin bona fide quotations or a bona fide abridg- ment of a copyrighted work. It is clearly settled that it is not an in- EQUITY CASES SIMPLIFIED 169 fringement of a copyright of a book to make bona fide quotations or extracts from it, or a bona ^de .abridgement of it, or to make a bona fide use of the common materials in the composition of an- other work. But the question always arises, Has there been a legitimate use of the copyright publication by the fair exercise of a mental operation deserving the character of a new work? If one, instead of searching into the common sources and obtaining his materials from them, avails himself of the labor of his predeces- sor, and adopts his arrangement, or does so with only a colorable variation, this will be an infringement. In the leading case above, it was argued that the Eev. Mr. TJpham had not gone beyond this; but the court thought otherwise. " What constitutes a fair and bona fide abridgment," said Judge Story, " is one of the most difficult points, under particular circumstances, which can well arise for judicial discussion. It is clear that a mere selection or different arrangement of parts of the original work, so as to bring the work into a smaller compass, will not be held to be such an abridgment. There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon, and not merely the facile use of the scizzors, or extracts of the essential parts constituting the chief value of the original work." Equity has sometimes enjoined the publication of private let- ters. The rules on this subject are : — 1. The writer of a letter has such a right in it as to entitle him to restrain its publication by the party written to or his assigns. 2. The party written to has a right to restrain its publication by a stranger. 170 EQUITY CASES SIMPLIFIED. TBADE-MABES.— FAMILY NAME USED TO DE- CEIVE. CROFT V. DAY. \7 Beav. 232; 2 Tud Ld. Cas. 563.] Day & Martin's blacking is, or was at the time of this case, about as well known in England as the Times newspaper or the Tower of London. The firm was established in 1801, and had been in existence nearly fifty years, when a nephew of the senior part- ner commenced making blacking himself, and finding a person of the name of Martin, obtained the use of his name, and began to ofi'er to the public Day & Martin's blacking, put up in bottles and bearing labels having a general resemblance to those of the original firm. The latter did not like this at all, and requested the Court of Chancery to restrain the nephew. An injunction was issued to this effect. " The principle in these cases is," said the court, " that no man has a right to sell his own goods as the goods of another. No man has a right to dress himself in coloi'S or adopt . and bear symbols to which he has no peculiar or ex- clusive right, and thereby personate another person for the purpose of inducing the public to suppose, either that he is that other person, or that he is con- nected with and selling the manufacture of such other person, while he is really selling his own." EQUITY CASES SIMPLIFIED. 171 TRADE-MAEKS—NO BELIEF TO WRONGDOEH. SEABURY V. GROSVENOR. [14 Blatchf. 262.] A certain firm in New York prepared plasters, which they called " Benson's Capcine Plasters." After the manner of patent medicine men generally, they adver- tised their great remedies for pains and rheumatics all over the country. The readers of their advertisements were informed that a celebrated chemist had recently discovered a vegetable of extraordinary value, with which he had effected the most marvellous cures ; that this great remedy was called Capcine, and was used in the celebrated Capcine plasters. The easily gulled public of course swallowed the story and bought the plasters. Attracted by the profit to be made from the name, another party commenced to sell an article he called Capcine plasters ; and to enjoin him from so doing the firm brought a suit in equit}'. Unfortunately for them, however, the evidence in court proved that there was no such vegetable or article as Capcine known to chemistry or medicine, and on this ground the injunction ' was refused. "The authorities are clear," said the court, " that in a case of this description, a plaintiff loses his right to claim the assistance of a Court of Equity." A man manufacturing or selling any kind of goods has a right to distinguish them by a symbol, which symbol is called a trade-mark, and is used to show that he is the manufacturer or seller as the case may be. Tor another person to use his symbol is, therefore, (1) an invasion of his property right, and (2) a fraud on the public, 2^72 EQUITY CASES SIMPLIFIED. ■who are enticed into purchasing goods of B. thinking they are the goods of A. To prevent this sort of thing? equity will enjoin the infringement of a trade-mark; except as was held in the Cap- cine case above, when the plaintiff himself is guilty of fraud. The right of a person or firm to a trade-mark Is acquired by ex- clusive user. The first person who takes the name and applies it to the goods, or to anything of a mercantile character, will have the exclusive right, which right equity will protect. The prior use is enough to entitle him, even although it has only been for a very short time. A liquorice maker stamped his sticks with the word "Anatolia," and about the beginning of September, 1861, put his goods on the market with this symbol on them. Less than two weeks after, a rival candy-maker commenced to stamp his liquorice with the same word. Liquorice man No. 1 was able to enjoin his imitator. "It has been pressed," said the court which granted the injunction, " that the plaintiff had no time to acquire a property in this trade-mark, property in a mark of this kind requiring antece- dent user to establish a repute in the name. It was not, however, necessary to say when property in such a mark was capable of being acquired; probably it might be necessary, to support a bill of this kind, that the mark should have been applied to the goods right- fully by the plaintiff ; secondly, that the article to which it is applied should be an article vendible in the market ; thirdly, that the de- fendant knowing this, has imitated It for the purpose of passing goods into the market. " McAndrew v. Basset, 12 W. K. 777; 10 L. T. (n. s.) 65. But it has been ruled that property in a trade-mark cannot be acquired before the article is actually put upon the market for sale — until that time any one may use it, and obtain the exclusive right to it. Maxwell v.' Hogg, L. R. 2 Ch. App. 307. But it is not every word or phrase that may be the subject of a trade-mark. " I have not the least doubt," said an English judge in one case, "that if the plaintiff has invented a fanciful and ridicu- lous name — and the more ridiculous the better it is for his busi- ness — and has used it in his trade, that the court would take care that nobody else should use that absurd name ; for such user could only be a user for the express purpose of imitating the plaintiff's, and so defrauding the plaintiff, by representing the goods manu- factured by one person to be the goods manufactured by another." Young V. Macrae, 9 Jur. (n. s.) 322. It is better that the word should be absurd, — it is necessary that It should be to some extent fancy, — for unless a man has an exclusive property in the article itself, he cannot have a trade-mark iu its proper name. Thus EQUITY CASES SIMPLiriED. 173 "parafflne " having come to be aa article of commerce, it has been held that one could not appropriate the word as a trade-mark ; and the same was held of "Cundurango Ointment," ointment being a a generic term, and Cundurango the name of a well-known plant. But a person may apply a common name to an article not at all descriptive of the article, and which word has been applied to arti- cles of other kinds, and it will constitute a valid trade-mark — as for example, "Excelsior" Soap. Braham v. Bustard, 1 H. and M. 447. 174 EQUITY CASES SIMPLIfc'IED. TBADE-MAEKS —FAMILY NAMES USED WITH- OUT INTENT TO DECEIVE. MENEELY v. MENEELY. [1 Hun, 367; G2 N. Y. 427.] Andrew and Edwin A. Meneely were bell manufac- turers in Troy, New York, the business after the death of Andrew being carried on by Edwin and George E. Meneely. The Meneely bells became very celebrated, and it was therefore with considerable disgust that the firm found out one day that Clinton Meneely and one Kimberly were about to start a rival bell foundry in Troy. But it was not long until the new works were in full blast and the bells of ' ' Meneely & Kimberly ' ' were being cast and sold to any one that wanted a bell. The old firm tried to enjoin the use of the word Meneely by the new firm, but failed. " Everyman," said the court, "has the absolute right to use his own name in his own business, even though he may inter- fere or injure the business of another person bearing the same name, provided he does not resort to any ar- tifice or contrivance for the purpose of producing the impression that the establishments are identical, or do anything calculated to mislead. Where the only con- fusion created is that which results from the similarity of the names, the courts will not interfere. A person cannot make a trade-mark of his own name, and thus obtuin a monopoly of it which will debar all other per- EQUITY CASES SIMPLIFIED. 175 sons of the Siime name from using their own names in their own business." Meneely v. Meneely is an interesting case as showing that, in the case of using family names by persons entitled to use them, the power of the court will only be interposed where there has been fraud or deceit practised, or where some fraudulent device has been employed to injure the business of another, and impose on the public. This case does not conflict with Croft v. Day, for the principle is the same in both, for in Croft v. Day the defendants were not enjoined from using their names at all, but in so using them in connection with bottles and labels like the plaintiffs as to deceive the public. 176 EQUITY CASES SIMPLIFIED. STATEMENTS AS TO FORMER EMPLOYMENT. GliEXNY V. SMITH. [2 Drew. & Sm. 476.] One of the employees of Thresher, Gleniiy &Co., hosiery and shirt makers, of the Strand, London, who rejoiced in the unromantic name of Smith, left their service and opened a shop for himself on another street in the same city. Over the door of his shop he put his own name " Frank P. Smith," but on the awning and doors he added the v^ords "From Thresher & Glenny," being careful to put the word "from" in very small letters, not likely to attract attention. It also appeared that in the middle of the day, when the awning was let down to keep out the sun, it entirely shut ofi' from view the name of Mr. Smith over the door. Under these circumstances it was not strange that several customers went into Mr. Smith's shop in the belief that it was a shop of Thresher & Grlenuy. This somewhat incensed the latter firm, and they applied to the Court of Chancery to have Mr. Smith restrained from using their names in this way. Mr. Smith replied that he had intended no deception, and had even gone so far as to instruct his clerks not to permit customers to buy under the impression that they were buying from Thresher & Glenny. " There EQUITY CASES SIMPLIEIED. 177 is no question," said the Vice-Chancellor, in deciding the case, «< but that if a man, having been in the em- ployment of a firm of reputation, sets up in business for himself, he has a right in any way in which he thinks fit (provided he does not deceive), to inform the public that he has been in such employment, and in that way to appropriate to himself some of the benefit arising from the reputation of his former employers. But in so doing he must take special care that it is done in such a way as not to mislead the public to the detriment of his former employers. It does not signify, for the purpose of the plaintiflF's right to relief, whether the defendant has acted witb a fraudu- lent intention or not ; it is enough if, even without any unfair intention, he has done that which is calculated to mislead the public, * * * and it is not the question whether the public generally, or even a majority of the public, is likely to be misled ; but whether the unwary, the heedless, the incautious por- tion of the public would be likely to be misled." Tested by these rules, the court came to the con- clusion that on the evidence in the case, deceptiou.was probable, and enjoined Mr. Smith from using the firm name as he had been doing. The law on this subject is so well laid down in the above case that no further explanation is necessary here. The case is inter- esting in showing that the intention of the defendant to deceive the public is not the gist of the relief, but that the probability that the public will be deceived is. A man who has been employed by a firm of reputation, may use their name for the purpose of informing the public that he comes before them recommended by the fact of having been employed by an establishment of admitted reputation, but when he advertises this by signs on his store, he must be very 12 178 EQUITY CASES SIMPLIFIED. careful not to let it be supposed that they are the proprietors. The safe St plan would be to give such words as " from , " " late with, ' ' " formerly of," equal prominence on the signs with the name of the late firm. PART II. Constitutional .Cases Simplified. CONSTITUTIONAL CASES. CHAPTER I.— GENERAL PRII^CIPLES. GENERAL LIMITATIONS IN CONSTITUTION DO NOT APPLY TO THE STATES. BARRON V. THE MAYOR OF BALTIMORE. [1 Pet. 243.] Mr. Barron, of Baltimore, was the owner of a wharf which derived its_ popularity from its enjoying the deepest water in the harbor. This reputation, however, was destined to be short-lived, for the city in grad- ing some streets, directed from their accustomed ways several streams of water which carried down to Mr. Barron's wharf so much mud and sand as to render the water so shallow that no more vessels were able to come there. When Mr. Barron asked to be compen- sated for his lost wharfage dues, the city pointed to its charter, which justified it in doing exactly as it had done. Then Mr. Barron went to law alleging that the city had taken his property " without just compensation," and that as the United States Constitution prohibited this very thing in express words, the city must pay him. It was held, however, that as it was the State, and 182 CONSTITUTIONAL CASES SIMPLIFIED. not the United States, which hud done the act, the pro- hibition did not apply. The general limitations con- tained in the United States Constitution, the court said, hud reference to the National government and did not apply to the States at all . The United States Constitution, besides granting many powers to tlie general government, contains very many limitations to its power as well. For example, it prescribes that no form of religion shall be established ; nor the free exercise of religion be prohibited ; that the freedom of the press or of speech shall not be abridged; that the right of the people to keep and bear arms shaU not be in- fringed; that soldiers shall not in time of peace be quartered in houses without the consent of the owners, nor in time of war, except in the manner prescribed bylaw; that unreasonable searches and seizures of persons, houses, papers and effects shall not be made; that no warrant shall be issued except upon probable cause, supported by oath, and particularly describing the place to be searched and the persons and things to be seized ; that no person shaU 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 navel forces, or in the militia when in actual service in time of war or public danger; that no person shall be subject for the same offence to be put twice in jeopardy of life or limb, nor be compelled in any criihinal case to be a witness against himself ; nor be deprived of life, liberty or property without due process of law ; that private property shall not be taken for public use without just compensation; that in all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial by an impartial jury of the State, and in the district wherein the crime shall have been committed, and must be informed of the nature and cause of the accusation, and must be confronted with the witnesses against liim, and may have compulsory process to obtain his own wit- nesses, and may have the assistance of counsel in his defence; that the trial by jury shall be preserved in suits at common law, where the value in controversy shall exceed twenty dollars, and that excessive bail shall not be required, nor excessive flues im- posed, nor cruel and unusual punishments be inflicted. Barron v. Mayor of Baltimore is important as deciding that these limitations are addressed to the Federal government only, and do not bind the States. "The Constitution," said Chief Justice Mau- siiALL in that case, " was ordained and established by the people of CONSTITUTIONAL CASES SIMPLIFIED. 183 the United States for themselves, for their own government, and not for the government of the individual States. Each State es- tablished a Constitution for itself, and 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 sup- posed best adapted to their situation, and best calculated to pro- mote their interests. The powers they conferred on this govern- ment were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and we think neces- sarily, applicable to the government created by the instrument. They are limitations of power granted In the instrument itself; not of distinct governments, framed by different persons and for different purposes. * * * They must be understood as restrain- ing the power of the general government, not as applicable to the States. In their several Constitutions they have imposed such re- strictions as their own wisdom suggested, such as they deemed most proper for themselves." As a matter of fact, most of the State Con- stitutions, copying the Federal Constitution in this respect, contain similar provisions limiting the power of the Legislatures. But if they do not, the Federal Constitution cannot be appealed to, to protect a person against State legislation. There are, however, certain limitations in the Federal Constitu- tion on the powers of the States. Thus, it Is declared in sect. 10, that no State shall enter into any treaty, alliance, or confederation, grant letters of marque and reprisal, coin money, emit bills of credit, make anything but gold and silver coin a tender in payment of debts, pass any bill of attainder, ex post facto law, or law impair- ing the obligation of contracts, or grant any title of nobility ; also that no State shall, without the consent of Congress, lay any imports or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, or lay any duty of ton- nage, 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. By the Fourteenth Amendment to the Constitution, certain other limitations are placed upon the power of the States. "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, lib- erty, or property without due process of law, nor deny to any per- son within its jurisdiction the equal protection of the laws." y*- 184 CONSTITUTIONAL CASES SIMPLIFIED. As to all these latter provisions, the Federal courts will consider the question whether a State law conflicts with them, and if it is found to do so will declare it unconstitutional and void. CONSTJTUTIONAL CASKS SIMPLIFIED. 185 IMPLIED POWERS. McCUIiliOCH V. THE STATE OF MARYLAND. [4 Wheat. 316.] About the year 1816, Congress established a United States Bank, for the purpose of assisting the government in the management of its finances. There was great opposition to the measure, and the question of the constitutionality of such an act came at last be- fore the Supreme Court of the United States for decision. The bank contended that, although the Constitution did not, in express terms, authorize Con- gress to establish a national bank, yet it had given it power to borrow money, collect taxes, and pay the debts of the nation,' and hud expressly authorized Congress " to make all laws which shall be necessary and proper for carrying into execution the foregoing powers,"^ and this it argued was authority enough. The enemies of the bank, on the other hand, took the ground that " necessary " meant indispensable, and as all the acts named could be performed without a bank, the creation of the United States Bank was unconstitutional. The court held the act valid, on the ground that such an institution was a legitimate means of carrying out the general powers given to Congress, and that the de- gree of its necessity was a question for the Legislature o » Const. Art. I, sect. 8. " Const. Art. I, sect. 18. 18G CONSTITUTIONAL CASES SIMPLIFIED. and uotfoi- the court. " We admit," said Chief Jus- tice Marshall, " as all must admit, that the powers of the government are limited, and that the limits are not to be transcended. But we think the sound construc- tion of the Constitution must allow the National Legis- lature that discretion, with respect to the means by which the powers it confers are to be carried into exe- cution, which will enable that body to perform the high duties assigned to it, in the manner most benefi- cial to the people. Let the end be legitimate, let it be within the scope of the Consitution, and all means which are appropriate, and which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are consti- tutional. " The government of the United States is one of limited powers. It has strictly no powers except such as are given to it in the Con- stitution of the United States. Herein it differs from the States, which have all powers, except such as have been conceded by the people to the general government. "The government of the United States can claim no powers which arc not granted to it by the Constitution ; and the powers actually granted must be suchas are expressly given or given byneoessary implication." Martin v. Hunter's Lessee, 1 Wheat. 304. When any act is attempted by the National government, authority for that act must be found within the Constitution. Two important principles have been incorpor- ted on this general rule. 1. Within the scope of the functions assigned to it, over the subjects committed to its care, the power of the National govern- ment is absolute and supreme. 2. The Constitution does not descend to a minute description of the powers given to the National government ; it uses only general terms. It contains a list of the grand objects and purposes which are committed to it, but does not attempt to define all the means and methods by which those objects may be attained, but leaves it to Congress to adopt its own means. A few Instances and illus- trations of this will sufllce. Congress is authorized to borrow CONSTITUTIONAL CASES SIMPLIFIED. 187 money; it is not expressly authorized to establish a bauk, but this is one metliod of borrowing money, and hence as held in McCalloch V. Maryland, it has power to establish a United States bank. Congress is authorized to lay taxes, duties, imposts and excises. A protective tariff is not absolutely necessary for levying taxes; but it is one way of exercising that power, therefore, Con- gress has power to impose a tariff duty. Again the Constitution gives Congress power "to regulate commerce." Strictly, this would seem to mean that it should pass only such laws as were absolutely necessary to the regulation of commerce, such as laws compelling the registration of vessels, prescribing the duties of owners and seamen, and the government of ports, harbors, and the like. " Yet," as Mr. Pomeroy puts it, " under this grant Congress has assumed to enact laws for the improvement of harbors, the construction of piers, the erection of an astronomical observatory, the conduct of a coast survey. It has invaded the common law by limiting the liability of carriers on the ocean and the great lakes, it has sent out expeditions to observe an eclipse, and to explore the topography of the Dead Sea." Pomeroy Const. L. 166 188 CONSTITUTIONAL CASES SIMPLIFIED. CHAPTER II. — THE POWER OF TAXATION^. EXTENT OF THE TAXING POWER. PROVIDENCE BAIfK v. BILLiINGS. [4 Pet. 514.] Ill the year 1791 the Rhode Island Legislature chartered the Providence Bank to carry on' the bank- ing business as a corporation in the State. In 1822 the Legislature passed an act imposing a tax on every bank in the State except the United States Bank. The Providence Bank resisted this tax, and attempted to show the Supreme Court of the United States that it was unconstitutional. " The State," argued the bank lawyer, " gave us a charter to carry on the banking business. True, no promise was made in the charter that we should not be taxed ; but we claim that it was an implied contract that it would jDass no law which would interfere with our operations. Now, if the State may tax us, it may compel us to close our doors, for it may tax us to such an extent that we cannot profitably carry ou business any longer." " So it may," answered the court, " for such is the extent of the taxing power of a State. The power of taxing operates on all persons and property. It is CONSTITUTIONAL CASES. SIMPLIFIED. 189 granted by all for the benefit of all. It resides in the government as apart of itself, and need not be reserved, where property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. Every person must bear his portion of the public burdens ; what that portion shall be must be determined by the Legislature, whose discretion, even when abused, cannot be corrected by the courts." And so the bank had to pay the tax. Taxes, as some philosopher has remarked, are the penalties which people have to pay for being too fond of glory. The power to tax is an incident of sovereignty; it resides in every govern- ment ; for, if it were not so, no government could exist very long, for it would be without power to raise money for its own mainten- ance. And (with some exceptions, which will be stated below), the extent of its exercise is unlimited; if the government, the people's representatives, decide to levy a tax, the amount is en- tirely in their discretion, and, no matter how onerous it may be, there is no power in the courts to help a citizen, though his last dollar maybe taken from him under this guise. "The power of taxing the people and their property," said the greatest of American Chief Justices, "is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applic- able to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power, is found in the structure of the goverment itself. In imposing a tax, the Legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation . The people, therefore, give to their government a right of taxing them- selves and their property; and as the exigencies of the government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representatives to guard them against its abuse." Marshall, 0, J., in McCullochi). State of Maryland, 4 Wheat. 428. The people cannot go to the courts to set aside the obnoxious tax; but they have after all an easy remedy — when the next election comes on they can retire their representatives who have put the burden on them, and send men to the Legislature who will vote for its repeal. 190 CONSTITUTIONAL CASES SIMPLIFIED. The exceptions to this general rule^re : — I. Where the Constitution prescribes a limit to the exercise of the power. II. Where the tax is not Imposed for a public object. III. Where the State has relinquished its right by contract. IV. Where the property is beyond its jurisdiction. I. Where the Constitution prescribes a limit to the exercise of the power. The poople have not always been willing to trust this unlimited power to the government. Therefore, In many of the State Constitutions, as in also the Constitution of the United States, it Is prescribed that the Legislature shall not tax beyond a certain amount, or only for certain purposes. If the government passes a law conflicting with these constitutional limitations, the courts, in a case of the kind being properly brought before them, will declare the law void, and will prevent the tax from being col- lected. The Constitution of the United States contains limitations on both the powers of Congress and the States in respect to taxa- tiop, viz. : — Art. I., sect. VIII. " Congress shall have power to levy and collect taxes, duties. Imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States. Art. I., sect. II., § 3. "Direct taxes shall be apportioned among the several States which may be Included in this Union according to their respective numbers. See Hylton v. U. S., post, p. 194. Art. I., sect. IX., § 4. " No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken. Art. I., sect. IX., § 5. "No tax or duty shall be laid on articles exported from any State. Art. I., sect. IX., § 6. "No preference shall be given by any regulation of commerce or revenue to the ports of one Stale over those of another ; nor shall vessels bound to, or from one State, be obliged to enter, clear or pay duties In another. See Brown v. State of Maryland, Almy v. State of California and Woodruff V. Parham post, p. 197. Art. I., sect. X., § 1 " No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, ex- CONSTITUTIONAL CASES SIMPLiriED. 191 cept -what may be absolutely necessary for executing its inspec- tion laws. Art. I., sect. X., § 3. " No State shall, without the consent of Congress, lay any duty on tonnage." II. Where the tax is not imposed for a public object. For an in- stance of a tax of this kind, see Loan Association v. Topeka, post, p. 192. III. Where the State has relinquished its right by contract. This principle is Tjiscussed and illustrated in the subsequent chapter on Pkoperty Rights. IV. Where the property is beyond its jurisdiction. " The authority to tax," it has been said by the Supreme Court, "extends to all persons and property within the sphere of its territorial jurisdic- tion. * * * But where there is jurisdiction neither as to person nor property, the imposition of a tax would be ultra vires and void. If a Legislature of a State should enact that the citizens or property of another State or county should be taxed in the same manner as the persons and property within its own limits and subject to its authority, or in any other manner whatsoever, such a law would be as much a nullity as if in conflict with the most explicit constitu- tional inhibition. Jurisdiction is as necessary to valid legislative as to valid judicial action." St. Louis v. The Ferry Co., 11 Wall. 423. 192 CONSTITUTIONAL CASKS SIMPLiriED. TAX MUST BE FOB PUBLIC PURPOSE. LOAN ASSOCIATION v. TOPEKA. [20 Wall. 655.] The City of Topeka, Kansas, obtained authority from the Legislature to issue bonds to encouraofe the estab- lishment of manufactures within its limits. An iron works company attracted by these inducements established Its «vorks in Topeka, and to it the city issued $100,000 of bonds as a bonus. The company began to look upon a Kansas city as a pleasant com- munity to live among; but, alas, everything was changed when, an action being brought on one of these bonds, it was decided that the law under which they were issued was unconstitutional. The court said that giving the city power to donate its bonds to manufactories, was the same as giving it power to tax the inhabitants for that purpose, for only by a tax could the bonds be paid. But a valid tax must be imposed for some public object — i. e. an object within the purposes for which governments are established. The taxing power cannot, therefore, be exercised in aid of enterprises strictly private for the benefit of individ- uals, although in a remote or collateral way the local public may be benefited thereby. To justify the exercise of tlie taxing power it is absolutely neces- sary that the expenditure which it is intended to meet shall be for some public service or some object which concerns the public welfare. That the public will be incidentally benefited is not CONSTITUTIONAL CASES SIMPLIFIED. 193 enough, especially where the incidental benefit is only what the public may receive from the industry and enterprise of individuals. Loan Association v. Topekais a good example of a tax of this kind, and two cases in the State courts also furnish apt illustrations of what are not public purposes within this rule. The great fire in Boston in 1872, caused the Legislature of Massachusetts to pass a law authorizing the City of Boston to issue bonds, and lend the proceeds on mortgage to the owners of land, the buildings on which had been burned. The purpose was, of course, to assist the suf- ferers in rebuilding on their land, and thus to, in some measure, benefit the whole city. Lowell v. Boston, 111 Mass. 455. The grasshopper having pretty well cleaned out the crops in Kansas one year, the State authorized counties to issue bonds for the purpose of providing destitute farmers with seed for the next sowing. State V. Osawkee Township, 14 Kas. 418. But the Boston property holders had to find their money elsewhere, and the Kansas farmers had to buy, beg or borrow their seeds ; for both statutes were declared void. 13 194 CONSTITUTIONAL CASES SIMPLIFIED. WHAT ABE "DIRECT TAXES." HYL.TON V. UNITED STATES. [3 Dall. 171.] Exactly what Mr. Hylton, of Virginia, found to do with one hundred and twenty-five carriages (which the report says he kept " exclusively for his own separate use and not to let out to hire or for the conveyance of persons for hire") is a query which it is hard to answer, except on the theory that he was the proprie- tor of a circus. Just one year before. Congress had laid a tax of $10 on all carriages in the United States, and consequently Mr. Hylton found that keeping one hundred and twenty-five carriages was more of a luxury than he could pay for, and he attempted to dis- pute the legality of the tax in the courts. He relied on a section of the Constitution which says that " direct taxes shall be apportioned among the several States according to their respective numbers," and he claimed that this carriage tax was a " direct tax." But the Supreme Court of the United States thought otherwise. " The direct taxes contemplated \ CONSTITUTIONAL, CASES SIMPLIFIED. 195 by the Constitution," said Mr. Justice Chase, " are only two, viz. : a capitation or poll tax simply, without regard to property, profession or other circumstance, and a tax on land. The word " taxes " embraces all the impositions made upon the person, property, occupation or privileges of the people by the government for the purpose of raising revenue. " Duties " and "imposts " are within the term, but for greater particularity they are generally applied to the sums of money demanded by the gov- ernment for the privilege of importing or exporting merchandise. " Excises " are also "taxes," but this word is applied to the taxes laid upon the manufacture, sale or consumption of commodities within the country, and upon licenses to pursue certain occu- pations. As the word^ are generally used, taxes are " direct " when they are assessed upon the persons, property, business or income, etc., of the people, and are "indirect" when they are levied on com- modities before they reach the consumer, and are paid by him only as he pays a higher price for them than he would if there were no tax. The former, if he comes within its terms, the citi- zen cannot get out of paying; the latter he may escape, if he wishes, by abstaining from using the articles which have been taxed. Hylton V. United States decides that the phrase " direct taxes " in the Constitution has a more restricted meaning: that it includes only two kinds of taxes, (1) a tax on land; (2) a capitation or poll tax, i.e., a fixed sum of money to be paid by each person, with- out reference to his property or business. Therefore, if Congress was to wish to levy either of these kinds of taxes, it would have to first fix the whole amount of money to be raised in this manner, and then divide it among all the States in proportion to the number of inhabitants in each. As this would be a work involving a great deal of calculation and adjustment, Congress has never yet tried this method of taxing, though in two cases since Hylton v. United States was decided, it was contended that an income tax, and a tax on the circulation of banks, which the Federal government had levied were " direct taxes," and ought to have been apportioned among the Slates. Pacific Ins. Co. v. Soule, 7 Wall. 433; Veazie lOG CONSTITUTIONAL CASES SIMPLIFIED. Bank v. Fenno, 8 Wall. 533. But the Supreme Court held that neither of them was within the phrase as used in the Constitu- tion, adhering to its definition of a " direct " tax in the Car- riage ease. CONSTITUTIONAL CASES SIMPLIFIED. 197 STATE DUTIES ON IMPORTS. BROWN V. STATE OF MARYLiAND. [12 Wheat. 419.] A statute of Maryland required all importers of foreign goods by the bale, package, etc., and all other persons selling the same by wholesale, bale, package, etc., to take out a license for which they were charged $50, and prescribed a penalty for neglect to do so. A Baltimore merchant named Brown imported and sold a package of foreign dry goods without having taken out a license, and he was prosecuted under the act. His defence was that the statute was unconstitutional, because it violated the provision prohibiting a State from levying " any imposts or duties on imports or ex- ports." Brown won his case ; the statute was declared void. An imported article, the court held, continues to be part of the foreign commerce of the country while it remains in the hands of the importer for sale in the original bale or package in which it was imported. The right of the citizen to import necessarily implies the right to sell the article in the form and shape in which it was imported, and no State, either by a direct tax on the article, or by requiring a license from the importer before he is permitted to sell, can impose any 198 CONSTITUTIONAL CASES SIMPLIFIED. burden upon him or the property beyond what Con- gress has imposed by its tarifl' laws. But an imported article becomes subject to the taxing power of the State when the original package is broken open for use or for sale in parts, or when it has passed from the hands of the importer into those of a purchaser. It then ceases to be an " import." CONSTITUTIONAL- CASES SIMPLIFIED. 199 STATE DUTY ON " EXPORTS. ATiMY V. STATE OF CAL.IFOBNIA. [24 How. 169.] A Statute of California imposed a stamp tax on all bills of lading of gold and silver exported from the State. Almy, the master of the ship Eattler, received a quantity of gold in the port of San Francisco for transportation to New York, for which he signed a bill of lading without attaching a stamp. The law made this a misdemeanor, and he was indicted and fined $100 for the offence. But he appealed to the Supreme Court of the United States, where he was discharged and the fine set aside. It was a tax on " exports," said the court. It was the same as though the tax had been on the gold itself, for the bill of lading is as necessary to the transporta- tion of goods, as casks or boxes, — it is the ship's receipt for the articles received , without which no one would in- trust his goods to a carrier. " The intention to tax the export of gold and silver in the form of a tax on the bill of lading is too plain to be mistaken. The duty is im- posed only upon bills of lading of gold and silver, and not upon articles of any other description. And we tliink it is impossible to assign a reason for imposing the duty upon the one and not upon the other, unless it was intended to lay a tax on the gold and silver ex- ported, while all other articles were exempted from the, charge." 200 CONSTITUTIONAL OASES SIMPLIFIED. WOODRUFF V. PARHAM. [8 Wall. 123.] Mobile, also, about the year 1865, being authorized by its charter, levied a tax on all sales at auction. An auctioneer named Woodruff received from States other than Alabama large amounts of goods and mer- chandise, which he sold in Mobile to purchasers in their original and unbroken packages. Parham, the city tax collector, demanded the tax on these sales ; but the auctioneer refused them and had to be sued. In the Supreme Court, Woodruff contended that the tax was unconstitutional for the reasons stated in Brown V. Mayland. But the court upheld the tax, on the ground that the word " imports" in this clause of the Constitution referred only to articles imported from foreign countries into the United States, and not to goods imported from one State into another. Woodruff V. Parham, while agreeing with Almy's case on one point, Is in conflict with it on another. " It seems to have escaped the attention of counsel on both sides in Almy's case, and of the Chief Justice in delivering the opinion," says Mr. Justice Miller in Woodruff v. Parham, "that the case was one of inter-state commerce. No distinction of the kind is taken by counsel, none alluded to by the court, except in the Incidental statement of the fermini of the voyage. * * * The only question discussed by the court is whether the bill of lading was so intimately connected with the articles of export described in it that a tax on it was a tax on the articles exported. And in arguing this proposition the Chief Justice says that ' a bill of lading or some equivalent instru- ment of writing is invariably associated with every cargo of mer- chandize exported to a foreign county, and consequently a duty upon that is in substance and effect a duty on the article exported.' It is impossible to examine the opinion without perceiving that the mind of the writer was exclusively directed to foreign commerce, CONSTITUTIONAL CASES SIMPLIFIED. 201 and, there is no reason to suppose that the question which we haNc discussed was in his thought." The court, therefore, has overruled Almy's case so far as it held that articles exported from one State to another were " exports " within the Constitution. 202 CONSTITUTIONAL OASES SIMPLIFIED. STATES CANNOT TAX FEDERAL AGENCIES. McCULIiOCH V. THE STATE OF MARYLAND. [4 Wheat. 316.] The opposition to the United St;ites Bauk'^ toolc vari- ous shapes. The bank had a branch at Baltimore. The State of Maryland passed a law which had the effect of levying a tax on every note issued by the bank within the State. Mr. McCullough, who was the cashier of the Baltimore branch, refused to obey this law, and being sued by the State for the penalty, judgment was recovered against him, which judgment was affirmed by the Maryliuid Court of Appeals. Then the case was taken to the Supreme Court of the United States, in which tribunal the State law was declared uncon- stitutional and void. The court held that the sover- eign power of a State extends to everything which exists by its authority or is introduced by its permis- sion, but does not extend to those means which are employed by Congress to carry into execution the powers conferred on the National government. If the State could tax these government agencies it might de- stroy them, for it might tax them to such an extent as to prevent their operation. 1 See ante, p. 185. CONSTITUTIONAL CASES SIMPLIFIED. 203 DOBBINS V. COMMISSIONERS OF ERIE COUNTY. [16 Pet. 435.] Captain Dobbins, of the United States revenue cutter, lying at the station at Erie, Pennsylvania, was notified by the county assessor one day, that there was a matter of $10.75 due from him to the county, by virtue of a statute of Pennsylvania which authorized the levying of a county tax on all " offices and posts of iDrofit," for that the Captain's post was one of profit, was sufficiently clear to the tax-collector. But Captain Dobbins refused to pay, and the next thing that we hear of him is as a successful appellant in the Supreme Court of the United States, where the judg- ment was against the validity of the statute. The reason of the tax-collector's defeat is very brief. An officer of the United States is a government instru- ment ; and a government instrument, as was decided inMcCullonghz;. State of Maryland, cannot, as such, be taxed by a State. WESTON V. CITY COUNCIL, OF CHARLESTON. [2 Pet. 449.] The city council of Charleston, South Carolina, in the year 1823, with authority from the State Legisla- ture, levied a tax on all personal estate, including stocks of the United States. Mr. Weston, who was the owner of some United States stock, was assessed thereon. But not a cent of tax had he to pay, for the 204 CONSTITUTIONAL CASES SIMPLIFIED. court decided that stocks of the United States, owned by priviite persons or corporations, cannot be taxed by a State. The National government is given by the Constitution the power to borrow money; the States, therefore, cannot prevent or interfere in any way with the exercise of this power. But to tax the evidences of the National debt. in the hands of the owners, would interfere with its power to borrow money, for it would diminish their value, and thus maiie it harder for the government to find persons willing to loan it their money. CRANDALiL. v. STATE OF IfEVADA. [6 Wall. 35 1 A statute of Nevada imposed a tax of $1 on every person leaving the State by any railroad, stage-coach, or other public vehicle. The tax was to be paid by the carriers, and they were required, under a penalty, to report monthly the number of persons so transported. Crandall, who was the agent of a stage company, refused to report or to pay the tax, and being brought before a State court was fined. But he appealed to the Supreme Court of the United States, where the statute was held void. " The United States," said the court, " has the right to call for the services of its citi- zens at all points throughout the country, and to trans- port its troops anywhere. Citizens have the right to go to the seat of government, and to all other places where Federal offices are situated, and to ports of entry, as the necessities of their business may require. If the State could tax this privilege at all, it could tax it CONSTITUTIONAL CASES SIMPLIFIED. 205 to such an extent as to render it impossible to ex- ercise it." These C9,ses flrmly establish the principle that the power of a State to tax cannot be exercised upon property of the National government, or upon means which that government has adopted to carry on its public affairs. As the amount which a State may raise by taxation, cannot, as we have seen, be prescribed or lim- ited by the courts, — but the State is supreme in this matter unless restricted by its Constitution, — if it were once conceded that the National property or agencies were a proper subject of the taxing power, that power might be exercised to the complete destruction of both. 20G CONSTITUTIONAL CASES SIMPLIFIED. UNITED STATES CANNOT TAX STATE AGENCIES. COIiL-ECTOR V. DAY. [11 Wall. 113.] In 1864 it was enacted by Congress that, on all the incomes above $1,000, of persons residing in the United States, there should be levied and collected a tax of five per cent. Among those who were assessed under this law was Judge Day, of the Probate Court of Barnstable, Massachusetts, and, although he paid the tax, he paid it under protest, and brought an action ao-ainst the collector to recover it back, on the OTOund that his income which was taxed was his salary as a State officer, and that the United States had no more right to tax his salary than the State of Pennsylvania had to tax Captain Dobbins' and for similar reasons. The Supreme Court said he was right in his law, and ordered the collector to refund him his money. This case is very important as deciding that the doctrine that the States may not lay taxes upon the instrumentalities and agencies of the nation Csce McCullogh v. Maryland, ante p. 202, and cases seq.) applies in the same manner, to the same extent, and for the same reason, to the exercise of the taxing power of the United States. Congress cannot lay a tax upon any of the agencies or instrumen- talities which are necessary or appropriate for the legitimate gov- ernmental acts and operations of the States. Previous to this decision the principle had been much debated in the State courts. Several years ago Congress laid a stamp tax on written Instruments, and among them papers used in judicial pro- ceedings. The law provided that if a revenue stamp of a certain CONSTITUTIONAL CASES SIAIPLIFIED. 207 value was not affixed as required, the paper lacking such stamp should not be used in the suit or in the course of the proceeding. When it was sought to apply this law to papers filed or used in evidence in the course of proceedings in State courts, the State courts pronounced the law void so far as it extended to them, on the ground that Congress could not interfere in this way with the administration of justice in a State. Warren v. Paul, 22 Ind. 276. The law was repealed and the question never reached the Federal Supreme Court, but the subsequent case of Collector v. Day shows that if it had, the views of the State courts would have been sus- tained. 208 CONSTITUTIONAL CASES SIMPLIFIED. DUTY OF TONNAGE. CAJVNOK V. NEW ORLEANS. [20 Wall. 577.] All ordinance of the City of New Orleans required to be paid as " levee dues," by all steamboats which should moor or land in any part of the port, ten cents per ton, if the boat were in port not exceeding five days, etc. The owner of the steamboat R. E. Lee re- fused to pay the dues, and appealed to the Supreme Court of the United States, where the ordinance was declared void as being a " duty of tonnage." PACKET COMPANY v. KEOKUK. [5 Otto, 80.] At a considerable expense, the City of Keokuk, Iowa, had built, paved and improved the banks of the Mis- sissippi within its limits, and had erected wharves for the convenience of vessels landing there. For the use of these wharves, the city (under authority from the State ) , declared that every vessel that should make fast to them, or receive or discharge passengers or freight thereon, should pay certain fees graduated by the ton- nage of the vessel. The boats of the Packet Com- pany which ran on the river and used the city's wharves, refused to pay these fees, and on being sued forthem,claimed that they were " duties of tonnage," CONSTITUTIONAL CASES SIMPLIFIED. 209 iiud thei-efore (as held iu Cannon v. New Orleans) be- yond the power of the State to impose. But the court decided that the fees were demanded for services rendered, viz. : providing the boats with wharves, and were valid and collectible. Section 10, Art. I., of the Constitution declares that " no State shall, without the consent of Congress, lay any duty of tonnage." It is, therefore, not competent for a State or State's agent (e. g. a municipal corporation) to levy dues upon vessels, measured by their capacity, or to Impose any duties upon them for the privilege of entering or remaining in or leaving a port. This is the general rule ; yet there are two ways in -which levies may be made on ves- sels by a State, viz. : 1. Whei-e the levy is for special services rendered. "A charge for services rendered," said Mr. Justice Strong, in the Packet Company case, " or for conveniences provided is in no sense a tax or a duty. It Is not a hinderance or impediment to free navagation. The pro- hibition to the State against the imposition of a duty of tonnage was designed to gaard against local hinderances to trade and car- riage by vessels, not to relieve them from liability to claims for assistance rendered and facilities furnished for trade and com- merce. It is a tax or duty that is prohibited ; something imposed by virtue of sovereignty not claimed in right of proprietorship. Wharfage is of the latter character. Providing a wharf to which vessels may make fast or at vphich they may conveniently load or unload Is rendering them a service. The character of the service is the same whether the wharf is built and offered for use by a State, a municipal corporation, or a private individual ; and when compensation is demanded for the use of the wharf, the demand is an assertion, not of sovereignty, but of a right of property. A passing vessel may use the wharf or not at its election, and thus may incur liability for wharfage or not at the choice of the master or owner. No one would claim that a demand of compensation for the use of a dry dock for repairing a vessel, or a demand for towage in a harbor, would be a demand of a tonnage tax, no matter whether the dock was the property of a private individual or of a State, and no matter whether proportioned or not to the size or tonnage of the vessel. There is no essential difference between such a demand and one for the use of a wharf." Right here is the dif- ference between Cannon's case and the Packet Company's case. 14 210 CONSTITUTIONAL CASES SIMPLIFIKD. The charge in the first was made by the City of New Orleans, for stopping in the harbor, even though no wharf was used ; while the tax which Keokuk collected was for using wharves which the city had erected at great expense. The former was void, the latter valid. 2. ]VIiere the levy is a tax on property as other property is taxed in the State. Property in ships and vessels is like all other property, and is, therefore, subject to be taxed. Therefore the State may tax the owners of vessels on their interests in them as property by the same standard employed in other cases. But it is essential (as we have seen, ante p. 191) that the vessels shall have their sitns within the State that taxes them. There was a ferry company whose boats carried goods and passengers across the Mississippi river from East St. Louis, which is in Illinois, to the City of St. Louis, which is in Missouri. The company was an Illinois corpora- tion; its boats were laid up when not in use, and its pilots and engineers resided, on the Illinois side of the river. It was held that the State of Missouri could not tax these ferry-boats. St. Louis v. The Ferry Company, 11 Wall. 423. CONSTITUTIONAL CASES SIMPLIFIED. 211 CHAPTER IIL — THE POWEE TO BORROW MONEY. BILLS OF credit: CRAIG V. THE STATE OF MISSOURI. [4 Pet. 410.] In 1821 the Legislature of Missouri authorized the State Treasury to issue certificates to the amount of $200,000, in denominations not exceeding ten dollars nor less than fifty cents. These were subsequently issued, and were in the following form : — "This certificate shall be receivable at the treasury of any of the loan offices in the State of Missouri, in discharge of taxes or debts due to the State for the sum of dollars, with interest for the same at the rate of two per centum per annum from this date." Some of these certificates the Treasury issued to Craig and others, who gave their promissory note to the State for the amount. When the note fell due, they did not pay it, and on being sued they pleaded that 212 CONSTITUTIONAL CASES SIMPLIFIED. the consideration was void because the certificates were void, being " bills of credit " which, by the Con- stitution, the States are prohibited from issuing. In the Supreme Court of the United States it was held that the certificates, even though they were not made a legal tender, or directed to pass as money or cur- rency, were "bills of credit," and consequently void. BRISCOE V. THE BAIfK OF THE COMMON- WEALTH OF KENTUCKY. [11 Pet. 257.] The Legislature of Kentucky, in 1820, established the Bank of the Commonwealth of Kentuck}' in the name and behalf of the Commonwealth and the insti- tution was declared to be exclusively the property of the Commonwealth\ The jaresident and directors were to be chosen by the Legislature, and the bank was authorized to issue notes which were to be receivable in payment of debts to the State.. One day, in 1830, Briscoe and some others induced the bank to discount their note for something over $2,000 at four months, receiving the amount in bills of the bank. The four months went by, the three days of grace expired, with- out the note being met, and the directors were obliged to bring suit on it. Briscoe and his co-makers made the same defence that Mr. Craig did in his contest with CONSTITUTIONAL CASES SIMPLIFIED. 213 the State of Missouri ; tliey said that the bills which they had received were " bills of credit " of the State iind void. But they were not as lucky as Mr. Craig, for, al- though Mr. Justice Story agreed with them, the rest of the court held that the notes of the bank were not " bills of credit." The bank and the State, they said, were distinct; the notes were issued by the former upon its credit, alone, and could only be enforced against it ; they were not issued by the State and con- tained no pledge of the State's credit. Mr. Justice Story took the very sensible view that what the State could not do directly, it should not be allowed to do indirectly by means of an institution created by itself, but the other six judges could not see it in this light. By Article I, sect. 10, of the Constitution, it is provided that no State sliall " coin money cr emit bills of credit." The object of the prohibition against coining money was, of course, to have a uniform currency, which could only be accomplished by giving Con- gress the sole power to regulate the currency. The prohibition against emitting bills of credit grew out of the unpleasant experi- ence which the Constitutional Convention had had in the matter of colonial bills of credit, and it did not intend that each State should have the right to put in circulation its paper obligations to be perhaps depreciated and finally dishonored. It is plain that the phrase, "bills of credit," is broad enough to include all written contracts by which a State binds itself to pay money at a future day in consideration of services rendered or loans made. But a more restricted interpretation has been given to these words in the Constitution, otherwise no State would have power to issue bonds, or any evidences of debt. "Bills of credit," as used in the Constitution, are bills issued by the State, involving the faith of the State and designed to circulate as money in the ordinary course of business. As seen in Craig v. State of Missouri, 214 CONSTITUTIONAL CASES SIMPLIFIED. it is not necessary that the State should declare them to be money, or to be a legal tender. But the State may charter a bank and em- power it to issue bills, as was laid down in Briscoe's case, supra. CONSTITUTIONAL CASES SIMPLIFIED. 215 CHAFER IV. — THE POWER TO REGULATE COMMERCE. COMMERCE CANNOT BE REGULATED BY THE STATES. GIBBO^fS V. OGDEJf. [9 Wheat. 1.] As some small reward for his services in bringinjr the steamboat into practical use, the State of New York, by a statute of its Legislature, gave to Robert Fulton and his associates, the exclusive right to navi- gate all waters within the jurisdiction of the State with vessels pro^Delled by steam, for a term of years. Not- withstanding this statute, one Gibbons ran a steamboat owned by him between New York City and Elizabeth- port, New Jersey, which steamboat had been duly en- rolled and licensed as a coasting vessel under the act of Congress regulating the coasting trade. Ogden, who was the assignee of Fulton's rights under the New York statute, applied to the State court of New York and obtained from there an injunction restraining Gibbons from running his steamboat. 216 CONSTITUTIONAL CASES SIMPLIFIED. Gibbous appealed to the United States Supreme Court, and the statute was declared unconstitutional. It was a " regulation of commerce," said the court, and beyond the powers of a State. THE PASSENGEK CASES. [7 How. 283.] These were two cases — Smith v. Turner and Norris V. City of Boston, — which arose in New York and Massachusetts respectively. A statute of New York provided that the health officer of the port of New York should be entitled to demand, sue for and re- cover from the master of every vessel that should arrive at that port certain sums for every steerage pas- senger brought by the vessel from a foreign country, or from another State. The moneys thus received were to be applied towards the support of a marine hospital, and masters of vessels were subjected to pen- alties for failing to make the prescribed payments. A Massachusetts statute was similar in its general fea- tures. Smith was sued in New York, and Norris in ^lassachusetts, for violating these laws ; and the de- fence in both cases was that the statutes were " regu- lations of commerce," and void. The Supreme Court declared the statutes unconstitu- tional and sustained the defence. CONSTITUTIONAL, CASUS SIMPLIFIED. 217 STATE OF PEXXSYLVAXIA v. THE WHEELING BRIDGE COMPAKY. [13 How. 518.] The Wheeling Bridge Company were authorized by the State of Virginia to construct a suspension bridge across the Ohio River. When the bridge was com- pleted it was found that it hindered the passage of boats ascending and descending the river, and at cer- tain stages of water entirely prevented the transit of large boats. The State of Pennsylvania, seeing that her commerce was injured by the obstruction, brought an action to have the bridge removed as a nuisance. The Bridge Company justified its erection under the Virginia statute. Pennsylvania replied that the stat- ute interfered with commerce, and was, therefore, void. The court decided that this was so. It held that the power to regulate commerce between the States, given to Congress, extends to the navigable streams whereon that commerce is carried ; that commerce included navigation ; that Congress had recognized the Ohio as a navigable river, and the highway of commerce ; that the bridge interfered with such navigation, and that the Virginia statute authorizing its erection was, there- fore, in conflict with the power granted to and exer- cised by Congress. And the court ordered that the bridge. should be re- moved, unless within a certain time it should be raised to such a height as to admit all vessels at all stages of the water. 218 CONSTITUTIONAL CASES SIMPLIFIED. STATE OF PENNSYLVANIA v. THE WHEELING BRIDGE COMPANY. [18 How. 421.] But the Bridge Company would not down. Instead of pulling down the structure, it induced Congress to pass a statute legalizing the bridge in its then condi- tion and ordering: it to stand at its old heiarht. Penn- %ylvania Avas angry and asked the court to have the directors of the company committed for contempt in not carrying out the orders of the court. But the court held that the bridge was now legal, for Congress having power to regulate commerce, might place ob- structions upon its free exercise at its discretion. EXCEPT AS TO LOCAL REGULATIONS. COOLEY V. THE PORT WARDENS OF PHILADELPHIA. ri2 How. 299.] A law of Pennsylvania made it the duty of every vessel, arriving from or bound to any foreign port or place, to receive a pilot, and prescribed certain duties to the masters of vessels in respect to such pilots. It also provided that a vessel which neglected or refused to take a pilot should forfeit a certain amount of CONSTITUTIONAL CASES SIMPLIFIED. 219 money, and one Cooley, the owner of the Undine, having brought himself withhi this provision, was pro- ceeded against for the penalty. He pleaded that the law was unconstitutional, because pilot laws were laws "regulating commerce," and therefore beyond the power of a State to enact. The Supreme Court said, that though it was true that pilot laws were regulations of commerce within the Constitution , yet that they were not therefore void. The power to regulate commerce, the court said, in- cludes various subjects upon some of which there should be a uniform rule for the whole country, and upon others there may very well be different rules in diflFerent localities. In the first class of cases the power is exclusive in Congress ; in the second, unless Congress legislates upon the subject, the States may. Pilot laws are regulations of commerce which may very well be different in different localities, and as Congress had never passed a uniform pilot law, the State laws on tlie subject were good. WHAT IS " COMMERCE." PAUL V. VIRGINIA. [8 Wall. 168.] A Virginia statute provided that no insurance com- pany, not incorporated under the laws of the State, should carry on business in the State without a license, to obtain which it had to make a deposit of securities in 220 CONSTITUTIONAL CASES SIMPLIFIED. the State treasury. Mr. Samuel Paul was the enter- prising agent in Virginia of some New York insurance companies, and he undertook to issue some policies without having obtained the above license. Mr. Samuel Paul came to grief; he was fined for his dis- obedience, and on appeal to the Supreme Court of the United States the judgment was affirmed. The Supreme Court ruled that the Virginia statute was not a regulation of commerce, for the very good reason that issuing a policy of insurance was not com- merce. "The policies," said Mr. Justice Field, " are simple contracts of indemnity against loss by fire, entered into between the corporations and the as- sured for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter ofiered in the market, as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one State to another, and then put up for sale. They are like other personal contracts between par- ties, which are completed by their signature and the transfer of the consideration. Such contracts are not inter-state transactions, though the parties may be domiciled in different States. " Section 8, Art. I., of the Constitution, provides that Congress shall have power " to regulate commerce with foreign nations and among the several States, and with the Indian tribes." In the confederation which preceded the Federal Union, Congress had no power over the subject of commerce, and each State made such laws on the subject as It saw fit to make. The result was disas- trous. The competition between the different Commonwealths led to the passage of laws by each State which should increase its own trade at the expense of the others, and the framers of the Constitu- tion, with great unanimity, agreed that commerce between the CONSTITUTIONAL CASKS SIMPLIFIED. 221 States and foreign nations was a subject, beyond all others, to be -dealt with by the general government, which had no interest in benefiting one State at the expense of another. Commerce includes not only the buying, selling, and exchange of commodities, but also navigation by water and traffic by land. The subject-matter of traffic may be either goods or persons. (Mr. Justice Barbour went out of his way in Miln's Case to say that persons cannot be the subject of commerce, and that therefore laws regulating the transportation of persons by the State were consti- tutional; but this idea was speedily overruled by the Supreme Court.) On this point see Paul v. Virginia, ante, p. 219. Gibbons v. Ogden, The Passenger Cases, and The State of Pennsyl- vania V. The Wheeling Bridge Company are the leading cases under this clause of the Constitution. Brown v. State of Maryland {ante, p. 197), which we have seen as construing the meaning of " duties on imports," is a much cited authority on this part of the Constitu- tion also. There, it will be remembered, the State statute required all importers of foreign goods by the bale or package, selling the same by wholesale, to take out a license. The act was held void, first, because it laid a duty on imports, and secondly, because it was a "regulation of commerce." But while the Constitution, as quoted above, gives Congress power to legislate on the subject, there is no express provision in the Constitution which inhibits the States from doing the same thing. The question then arises, is there any implied prohibition on the States from the fact that the power is given to Congress? The answer is, that there is to a certain extent. Two rules have been laid down by the Supreme Court, viz. : — 1 . Where the subject is of a national character, or capable of one uniform system or plan of regulation, the power of Congress isexliisive. Here the States have no right to pass laws at all, even if Congress does not, for inaction on the subject by Congress is equivalent to a declaration that the commerce under its control shall be free and untrammeled, and hampered by no regulations at all. 2. When the subject is of a local character the States may legislate, if Congress has not. Pilot laws and harbor regulations are an ex- ample of this class of laws. See Oooley v. Port Wardens, supra. But it should be remembered that even these local subjects may be brought under the control of Congress at its discretion. The State laws are valid so long as Congress passes no laws of the kind, but as soon as the National government chooses to take 222 CONSTITUTIONAL CASES SIMPLIFIED. the subject under its control, the State laws cease to be of any authority. On the other hand, there are two classes of cases in which the power of the States over commerce is exclusive, viz. : — 1. Where the commerce is not extra-territorial. On this see Veazie V. Moor, posf, p. 223. 2. When the regulation is within the police power of the State. As to this see City of New York v. Mlln, and The License Cases, post, p. 225. CONSTITUTIONAL CASES SIMPLIFIED. 223 WHAT IS COMMERCE "-AMONG" THE STATES. VEAZIE V. MOOR. [14 How. 568.] The river Penobscot is situated entirely within the State of Maine, having its rise far in the interior of the State. Its upper part is separated from tide water by falls impassable for purposes of navigation , and the river does not form a part of any continuous track of commerce between other States or for- eign countries. The exclusive right to run boats on this part was granted by the State to Moor, whose rights were contested by Veazie, who considered* the grant to Moor unconstitutional for the reasons in Gibbons v. Ogden. In the Supreme Court the grant was held valid. The court said that commerce with foreign nations, which the States are prohibited from regulating, cannot be applied to transactions wholly internal — between citizens of the same community. To constitute " commerce between States or foreign countries," it is necessary tliat it be not confined to one State exclusively. The ordinary trade of a State, the local buying, selling and ex- change, the malting of contracts and conveyances, the rules for the regulation of local travel and communication, and all the infinite variety of matters which are of local interest exclusively, are left wholly to the regulation of State law. The commerce of a State, which Congress may control and which a State must not, must in some stage of its progress be extra-territorial. "Nor," said Mr. Justice Daniel in Veazie v. Moor, " can it be properly concluded that, because the products of domestic enterprise in agriculture or manufactures, or in the arts, may ultimately become the subjects of 224 CONSTITUTIONAL CA.SES SIJMPLIFIED. foreign commerce, that the control of the means or the encourage- ments by which enterprise is fostered and protected is legitimately within the import 'of the phrase 'foreign commerce,' or fairly im- plied in any investiture of the power to regulate such commerce. A pretension as far reaching as this would extend to contracts be- tween citizen and citizen of the same State, would control the pur- suits of the planter, the grazier, the manufacturer, the mechanic, the immense operations of the collieries and mines and furnaces of the country; for there is not one of these avocations, the results of which may not become the subjects of foreign commerce, and be borne, either by turnpikes, canals or railroads from point to point within the several States toward an ultimate destination. Such a pretension would ejffectually prevent or paralyze every effort at in- ternal improvement by the several States, for it cannot be supposed that the States would exhaust their capital and their credit in the construction of turnpilies, canals and railroads, the remuneration derivable from which, and all control over which, might be immedi- ately wrested from them, because such public works would be facil- ities for a commerce which, whilst availing itself of these facilities was unquestionably internal, although intermediately or ultimately it might become foreign." A good illustration of this rule arose in 1869. Congress passed a law regulating the sale of illuminating oil, and imposing penalties for preparing, offering for sale, or selling it, except after it had been subjected to a jfrescribed test as a protection against explosion. The law was held inoperative within Sta;te limits. "The express grant of power to regulate commerce among the States," said the Chief Justice, "has always been understood as limited by its terms, and as a virtual denial of any power to interfere with the internal trade and business of the separate States." U. S. v. Dewitt, 9 Wall. 41. CONSTITUTIONAL CASES SIMPLIFIED. 225 COMMERCE AND THE POLICE POWEB. THE LICENSE CASES. [5 How. 504.] These cases were three iu number, and were all con- sidered by the court at the same time. In Massachu- setts, Rhode Island, and New Hampshire there were statutes forbidding the sale of spirituous liquor, in less quantities that twenty-eight gallons, without a license. Thurlow, in Massachusetts, retailed some liquor without a license. Pierce, having purchased a small barrel of American gin in Boston, carried it to New Hampshire, where,not being licensed, he sold it in its original pack- age. Fletcher, having purchased from the original im- porter someFrench brandy, sold it in Rhode Island with- out a license. Each was indicted and convicted, and all contested the conviction on the ground that the license laws were regulations of commerce, and beyond the Ijower of the States to pass. The court, for several reasons, decided that the laws were valid, the principal one being that they were police regulations and not regulations of commerce within the Constitution. CITY OF NEW YORK v. MILN. Ill Pet. 102.] The State of New York passed a law which required, under a penalty, the master of every vessel arriving in 1.0 - 226 CONSTITUTIONAL CASES SIMPLIFIED. New York from a foreign country, or from a port in another State, to make a report in writing, within twenty-four hours, of the names, ages and last place of settlement of each passenger. The master of the ship Emily, from Liverpool , which arrived in New York one August day in the year 1829, with several hundred passengers, failed to make the report, and Miln, the owner, was sued by the city for the penalty. Miln defended his captain's act on the ground that the New York statute assumed to regulate commerce between the port of New York and foreign ports and was unconstitutional. But the court held that the statute was not a regulation of commerce but of police, and the statute was declared valid. "A State," said Mr. Justice Bakbouk, " has the same undeniable and unlim- ited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States ; by virtue of this it is not only the right, but the bounden and solemn duty, of a State to advance the safety, happiness and pros- perity of its people and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends, where the power over the particular subject or the manner of its exercise is not surrendered or restrained in the manner just stated. All these powers which relate to mere municipal legislation, or what may perhaps more properly be called internal police, are not thus surren- dered or restrained, and consequently in relation to these the authority of a State is complete, unqualified and exclusive." The police power of a State, and the matters properly falling CONSTITUTIONAL CASES SIMPLIFIED. 227 ■within it, are discussed more at length in a subsequent chapter, posi, Chap. VI. In City of New York v. Miln and The License Cases, laws which it was endeavored to liave nullified as regulations of com- merce were held to be not regulations of "commerce" but of "police." 228 CONSTITUTIONAL CASES SIMPLIFIED. CHAPTEE v.— PROPEKTY EIGHTS. A GRANT FROM THE STATE IS A CONTRACT. FLETCHER v. PECK. [6 Cranch, 87.] A Georgia Legislature, by statute, made a grant of lands to certain parties. A subsequent Legislature of the same State revoked the grant on the ground of al- leged corruption, and transferred the lands to other persons. The Supreme Court held that the second statute was void, because it impaired the obligation of a contract. Section 10, Art. I., of tile Constitution, provides that no State "sliall pass any law impairing the obligation of contracts." "A contract," said Cliief Justice Makshall, in Fletcher v. Peck, "is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do or not to do a particular thing. A contract executed is one in which the object of contract Is performed. * » * a contract executed, as well as one which is executory, contains obli- gations binding upon the parties." A. agrees to pay a certain sum on a certain day, or to do or refrain from doing some act. B., for a consideration, gives C. a deed of lands. The contract of A. is executory, and that of B. is executed. It was laid down in Fletcher ». Peck, that the term "contract" in the Constitution includes both executory and executed contracts; that a grant is an executed contract, and therefore grants from the CONSTITUTIONAL CASES SIMPLIFIED. 220 State to an individual are within the Constitution. These a State, by the Constitution, is prohibited from impairing, by altering, amending, or repealing the terms of the grants. 230 CONSTITUTIONAL CASES SIMPLIFIED. BUT NOT PUBLIC OFFICES. BUTLER V. PENNSYLVANIA. [10 How. 402.] On the first day of February, 1843, Mr. Butler was appointed by the Governor of Pennsylvania a Canal Commissioner, for one year from date, under a law then in force, which directed the Governor to appoint annually canal commissioners whose terms of office should commence on the first of February in every year, and whose compensation should be four dollars per diem. Mr. Butler gladly accepted the office, its emoluments and its duties, but in April of the same year the Legislature reduced his salary to three dollars a day, and ordered that on and after the following October, Canal Commissioners should be elected by the people instead of appointed. When the election came off Mr. Butler was not elected, and he had to step out to make room for the successful candidate. Mr. Butler was not satisfied with his treatment, but claimed his salary at four dollars a day as of old, from the time the new law had been passed till the end of his term in February, 1844. He considered that the statute prescribing the length of his term and the salary he was to receive, constituted a contract with him which the State, by the subsequent law reducing his salary, and turning him out of office, could not im- pair. But he failed to persuade the court. " The contracts designed to be protected by the Cpnstitu- CONSTITUTIONAL CASES SIMPLIFIED. 231 tion," said the Supreme Court, " are contracts by which perfect rights, certain definite, fixed private rights of property are vested. These are clearly dis- tinguishable trom the measures or engagements adopted or undertaken by the body politic or State govern- ment for the benefit of all, and from the necessity of the case, and according to universal understanding, to be varied or discontinued as the public good shall re- quire." The principle decided in this case was an important one. The court was called on to answer this question, whether, when the Legislature has created an office with certain salary and emoluments, and a person has been appointed to the office under the law for a cer- tain term, and is fulfilling its duties, a subsequent Legislature can abolish the office before his term expires, or reduce the salary. Baldwin v. Pennsylvania decides that it can, provided there is nothing in the State Constitution which prohibits such a law, for the first statute is not a " contract " within the Federal Constitu- tion. 232 CONSTITUTIONAL CASES SIMPLIFIED. A LICENSE NOT A CONTRACT. STONE V. MISSISSIPPI. [11 Otto, 814.] Things are often tolerated in a community for years, when all at once the people become suddenly virtuous and abolish with great indignation something that had not before that appeared to bother anybody. When, in 1867, the Mississippi Agricultural and Manufacturing Aid Society were granted by the Legis- lature the right to run a lottery in the State for twenty- five years, the people of Mississippi, as represented by the Legislature, evidently did not see any particular harm in games of chance. In consideration of this grant the company paid into the State treasury $5,000 and an annual tax of $1,000. In 1870, however, the spasmodic return of virtue came, and the State passed a law prohibiting all kinds of lotteries within its limits. The company objected to being suppressed under this law, alleging that their charter constituted a contract on the part of the State to allow them to run a lottery for twenty-five years in consideration of the $5,000 and the $1,000 a year; and that this could not be abrogated by the State. But the court said (1) that the State had made no " contract ; " it had only granted a " license ; " (2) that no Legislature could bargain away the police power of the State, and lotteries fell within that power. CONSTITUTIONAL CASES SIMPLIFIED. 233 Therefore, the company must go under, for the law abolishing it was valid. The first point decided in Stone ti. Mississippi is also very import- ant. The principle decided there Is that a license from the Stat6 au- thorizing a person to do an act which, but for such license would be forbidden, does not constitute a contract between the State and such Individual which the State may not repeal or modify at Its discretion. Licenses to sell spirituous liquors are a good illustra- tion of privileges of this character. They are permissions to sell liquor, to carry on a trade which is prohibited to persons not having licenses, and this privilege may be withdrawn by the State at any time. The second point, i. e. that relating to the police power of the State, is considered at more length in a subsequent chapter. 234 CONSTITUTIONAL CASES SIMPLIFIED. CHARTERS TO PRIVATE CORPORATIONS. DARTMOUTH COLLEGE v. WOODWARD. [i Wheat. 518.] Not long before the Revolution .and the Declaration of Independence (it was when George III., was King of England ) , the Crown granted a charter incorporating Darmouth College, in New Hampshire, specifying the number of trustees, how they were be to elected and hold their offices, what powers they should have, and what duties they should perform. In 1816, the Leg- islature of the State of New Hampshire passed a stat- ute altering this charter in many important particulars, and making great changes in the organization of the college. The question was whether the State could do this, and the Supreme Court held that it could not ; for a charter was a contract. " This," said Chief Justice Marshall, " is plainly a contract to which the donees, the trustees and the Crown (to whose rights and obli- gations New Hampshire succeeds) were the parties. It is a contract made on a valuable consideration. It is a contract for the security and disposition of property. It is a contract, on the security of which real and personal estate has been conveyed to the cor- poration. It is then a contract within the letter of the Constitution and within its spirit alSo." CONSTirtTTIONAL CASES SIMPLIFIED. 23^) THE PLANTERS BANK v. SHARP. [6 How. 301.] In 1830, the Legislature of Mississippi chartered the Planters' Bank. The charter gave the bank power to possess, receive, retain and enjoy lands, goods, chat- tels and effects of what kind soever, nature o\- quality, and the same to grant, alien or dispose of for the good of the bank. A subsequent Legislature of the State passed an act forbidding every bank in the State from transferring any note of other evidence of debt. The last statute was held void because it impaired the obligation of a contract. Ne more important case, none more far-reaching in its results, has probably ever been decided by a judicial tribunal than the Dartmouth College Case. It laid down a great rule of Constitu- tional right which every day is becoming of wider application. Its name is familiar to thousands of laymen who have but a faint idea of what it really was. The name of the great American Chief Jus- tice will always be associated with it, and for acute reasoning and logic, great learning, and grand judicial eloquence, it, like many others of the judgments of that great jurist, has never been excelled, if, indeed, it has ever been equalled. But every year it 'is appearing clearer that in this instance, he, and those judges who concurred with him, made a mistake. The courts of several States have refused to commit themselves to its doctrines, and it has required the power of the Supreme Federal tribunal, which has thus far adhered to the principle which the Dartmouth College Case decided, to enforce its rule. And in the court in which Marshall once presided, there is, to-day, a strong opposition to the principle which the Chief Justice had so great a share in declaring. That principle is that the charter of a private corporation is a contract, the obligation of which the State may not impair. This, notwithstanding much dissent has been reiterated in so many deci- ions, (not a "current," but a " torrent " of authorities, as remarked by a Pennsylvania judge), that it can hardly now be questioned. And the Supreme Court of the United States has, in subsequent cases. 236 CONSTITUTIONAL CASES SIMPLIFIED. gone even farther in this direction, and has decided that not only those franchises which are granted for the accomplishment of the general purposes of the corporation are protected by the Constitu- tion, but all the collateral stipulations which are inserted in the charter, but which are not necessary for the accomplishment of its general design, are equally protected. On this point see Gordon I'. The Appeal Tax Court, and Woodruff ti. Trapnall, post,-p. 237. CONSTITUTIONAL CASES SIMPLIFIED. 237 COLLATEREAL STIPULATIONS IN PRIVATE CHARTERS. GORDON V. THE APPEAL TAX COURT. [3 How. 133.] lu 1804, the Legislature of Maryland chartered several banks, among them the Union Bank, whose charter, under the act, was to run until 1816. In 1821, the Legislatui-e passed an act continuing the banks' charters to 1845, upon condition that they would build a certain public road and pay a certain school tax — the statute declaring that if any of the banks accepted and complied with the terms and conditions of the act, the faith of the State was pledged not to impose any further tax or burden upon them. The Union Bank built its share of the road and paid its school tax. But the Maryland law-makers were not satisfied. Banks, they argued, were rich, and able to stand almost anything, and so in 1841 they passed a law taxing all bank stocks, and the assessor proceeded to collect this tax from the stockholders of the Union Bank. He had no success, however, for the Supreme Court decided that the statute of 1821 was a contract exempting the stockholders of the bank from any tax on their stock, which no subsequent act of the State could abrogate. 238 CONSTITUTIONAL CASES SIMPLIFIED. WOODRUFF V. TBAPNALti. [10 How. 190.] This is a story in six chapters. Chapter T. A State Legislature incorporates a bank. The State is the State of Ariiansas, the bank is called the Bank of the State of Arkansas. One section of the act incorporating the bank provides : " The bills and notes of said institution shall be received in all pay- ments of debts due to the State of Arkansas." All this is in the year of our Lord, 1836. Chapter II. The Honorable Williani Woodruff is Treasurer of the State of Arkansas. The Honorable Mr. Woodruff, to secure the faithful performance of the duties of his high office, executes to the State a bond with sureties. Chapter III. The Honoi'able Mr. Woodruff does not perform his duties as a State Treasurer should. He omits to turn over to the State $3,000 which he has collected, and judgment is obtained against him for this amount and costs. The whole amount is $3,755 ; the time is the year 1840. Chapter IV. Men may come and men may go, but legislators go on making laws forever. It is now a. d. 1845, The Legislature of Arkansas passes an act which CONSTITUTIONAL CASES SIMPLIFIED. 239 declares that hereafter nothing shall be received in payment by the State but par funds. The notes of the Bank of the State of Arkansas are not just no.w " par funds " by a good deal. Chapter V. One day in" 1847, the Honorable Mr. Woodruff is interviewed by the sheriff on the subject of the judg- ment for $3,755. He expresses a desire to pay it, and takes out his pocket-book. The sheriff discover- ing that the money is all in Arkansas State Bank bills quotes the apt of 1845 and refuses to accept them. Chapter VI. The Honorable Mr. Woodruff' appeals to the Supreme Court of the United States, and that tribunal says that the sheriff must takp the Arkansas Bank bills in satis- faction of the judgment. Why? Because the under- taking of the State in the act of 18b36 to receive the notes of the bank constituted a contract between the State and the holders of the notes, which the State could not break. But, of course, notes issued by the bank after the act of 1845 were not within the contract, and might be refused by the State. There is considerable discussion now-a-days upon tlie way in ■which corporations are beginning to "run" this country, its legislators, and, in some few instances, its judges. The principle of the Dartmouth College Case is one great lever on which all mon- opolies are able to work ; but even since then they have obtained further privileges in such judicial decisions as the two above. The Darmouth College Case simply decided that the grant of a franchise by the State to a corporation by means of which the latter is enabled to pursue and accomplish the general objects of its creation is a contract giving rights which the people can never resume . But 240 CONSTITUTIONAL CASES SIMPLIFIED. the principle of the above two cases is that all the collateral stipulations which have been inserted in the charter are equally sacred. Italse the liberty of using Prof. Pomeroy's language, in his Hand- book on Constitutional Law, as best explaining the meaning of this extension of the doctrine : " The collateral stipulations of this character which have been generally inserted in charters, may be grouped in two classes: those which limit the State's power of taxation, and those which limit the State's right of eminent domain. To illustrate : if a State should incorporate a bank with ordinary banking franchises, and should add in the charter that the rate of taxation imposed upon the institution should never exceed a certain specified amount; or, if a State should incorporate a toll-bridge company with the ordinary franchises necessary to enable the corporation to erect and maintain a bridge at a certain place, and to take tolls thereon, and should add a clause in the charter, declaring that no other bridge should be erected within certain distances up and down the stream ; it is plain that neither of these stipulations would be necessary to the existence and the accom- plishment of the objects of these respective corporations. The bank might carry on all legitimate banking business without any limitation upon the rate of taxation applicable to it ; the bridge company might build and maintain their structure, and collect tolls from all who cross, although there were a dozen rival bridges. But it is plain that these and similar provisions in charters might be, and probably would be, very advantageous to the particular corporation. At the same time they would have the effect, if operative, to limit and restrain two important functions of the State government, — that of taxation, and that of eminent domain. Can a State Legislature thus bind itself and all future Legislatures; or, in other words, are these and similar clauses contracts between the State and the corporation, and thus within the protection of the United States Constitution?" Gordon ti. The Appeal Tax Court, Woodruff v. Trapnall and other cases since, answer these questions in the affirmative. From this doctrine there has been much dissent in the State courts, which have argued that the States are absolutely sovereign so far as they have not parted with that sovereignty to the general government ; that they are absolutely sovereign over the subjects of taxation and eminent domain; being thus sovereign they cannot relinquish their sovereignty ; one Legislature cannot bind a subsequent Legis- CONSTITUTIONAL CASES SIMPLIFIED. 241 lature on these subjects since the subsequent Legislature as much represents the sovereign people and holds all its sovereign powers as the former did. But these arguments have been unavailing in the Supreme Court of the United States. 16 242 CONSTITUTIONAL CASES SIMPLIFIED. CONTRACTS NOT IMPLIED. THE CHARLES KIVER BRIDGE v. THE WARREN BRIDGE. [11 Pet. 420.] The Charles River Bridge Company was incorporated by the Massachusetts Legislature and given power to erect and maintain a toll-bridge. Subsequently the Warren Bridge Company was chartered, and author- ized to build a free bridge a very short distance from the first structure. This was, of course, destruction to the Charles River Bridge Company, whose right to collect tolls was what made the franchise valuable. The Charles River Bridge Company tried to prevent the building of the Warren Bridge, claiming that with their franchise there was an implied contract that the Legislature would not interfere with it in this way. But the court said that as there was no express contract, nothing could be implied and the Warren Bridge might be built. A half a loaf is better than no bread, and the people have some- thing to be thankful for, after all. The Federal courts have not gone quite as far as corporations asked them to go. They had de- cided that charters of private corporations are contracts, and that all express collateral stipulations contained in such charters are also contracts. In The Charles River Bridge Case, they were asked to go farther, and to rule that the State might give rights to corporations by implication, even when it had not done so expressly. But the Su- _preme Court thought that the line must be drawn somewhere, and CONSTITUTIONAL CASES SIMPLIFIED. 243 that this was about the place to draw it, and they laid it down that the charter is to be construed most strongly against the grantee and that no rights which are not expressed in it can arise under it by mere implication. Providence Banit v. Billings, ante, p. 162, was an earlier decision in which the same principle was established. 244 CONSTITUTIONAL CASES SIMPLIFIED. MUNICIPAL CORPORATIONS. EAST HARTFORD v. THE HARTFORD BRIDGE CO. [10 How. 511.] A town was given the right to maintain a ferry across a river. Afterwards, by several laws, the State first granted one-half of the ferry privilege to another town, and finally ordered it to be discontinued entirely. The town went to law, but got no redress, for the court held that a grant to a municipal corporation is not a contract, but is a law for the public good. Municipal corporations are created as necessary conveniences in government, and hold their powers and privileges subject to legisla- tive modification and recall at all times. " The doings of the Leg- islature as to this ferry," said Mr. Justice Woodbury, in the above case, " must be considered rather as public laws than as contracts. They related to public interests. They changed as those interests demanded. The grantees likewise, the towns being mere organiza- tions for public purposes, were liable to have their public powers, rights and duties modified or abolished at any moment by the Leg- islature. They are incorporated for public and not private objects. They are allowed to hold privileges or property only for public purposes. The members are not shareholders, nor joint partners in any corporate estate which they can sell or devise to others, or which can be attached and levied on for their debts. Hence, gener- ally, the doings between them and the Legislature are in the nature of legislation rather than compact, and subject to all the legis- lative conditions just named, and, therefore, to be considered as not violated by subsequent legislative changes." But as regards its property, a municipal corporation is entitled to the same protection as a natural person. The City of Oshljosh had raised some money by taxation for the purpose of erecting a CONSTITUTIONAL CASES SIMPLIFIED. 245 high school building. Afterwards the Legislature passed a law or- dering a portion of this money to be used for purchasing a site for a State normal school. The statute was declared void. " As to all matters pertaining to vested rights of property," said the court, " whether real or personal, and to the obligation of contracts, municipal corporations are as much within the protection of the Federal Constitution as private individuals are. The Legislature cannot divest a municipal corporation of its property without the consent of its inhabitants, nor impair the obligation of a contract entered into with or in behalf of such corporation. State v, Haben, 22 Wis. 660. 246 CONSTITUTIONAL CASES SIMPLIFIED. WHAT LAWS IMPAIR THE OBLIGATION OF CONTRACTS — INSOL VENT LAWS. STURGES V. CROWNINSHIELD. [4 Wheat. 122.] Crowninshield was sued in Massachusetts on two promissory notes made by him in New York, on March 22, 1811, payable in August of the same year. He replied that he had been discharged on February 15, 1812, from all debts by a New York court, under an insolvent act of the State of New York. " When was that insolvent act passed?" asked the Supreme Court. " On the third day of April, 1811," answered Crownin- shield. "Then the law impairs the obligation of a contract," said the court, "and it cannot help you. A contract is an agreement in which a party under- takes to do or not to do a particular thing. The law binds him to perform his undertaking, and this is, of course, the obligation of his contract. In the case at bar Crowninshield has given his promissory note to pay the plaintiff a sum of money on or before a certain day. The contract binds him to pay that sura on that day, and that is the obligation. Any law which releases apart of this obligation, must, in the litera,! sense of the word, impair it. Much more must a law impair it which makes it totally invalid, and entirely discharges it." Having seen the cases which decide as to what are " contracts" ■within the Constitutional provision, the foregoing case, and the fol- CONSTITUTIONAL CASES SIMPLIFIED. 247 lowing, are presented to answer the second question, viz. : What kinds ol laws impair the obligation of contracts within the sanoe section of the Constitution. " This question," says Mr. Pomeroy, "is one not easy to answer in its full extent. There may be some State statutes which plainly and unequivocally have the injui'ious effect, concerning which there is no room for argument. There may be others which as plainly and unequivocally do not have the Injurious effect. Between these two extremes there are kinds and classes of laws concerning which there may be a doubt, there may be room for argument, for difference of opinion among legislators and judges. When we attempt, therefore, to lay down general principles which shall be absolutely inclusive and exclusive — in- cluding all laws which are obnoxious to the Constitutional provision, and excluding all others — we shall find ourselves involved in great difficulty." The courts have found this same difficulty, and the decisions on this question have, therefore, been somewhat conflict- ing — the States courts often taking one view of the subject, the Federal courts another and diverse view. The following general principles have, however, been pretty generally coincided in by all, viz.: 1. A contract may be impaired without being destroyed, and if this la so, it is as much within the Constitutional provision as though it was completely destroyed by the obnoxious law. The Constitution, as we have seen, says that no law shall be passed by the States which " impairs " the obligation of a contract. 2. The law to be void under this provision must operate upon a contract entered into before its passage. See Ogden v. Saunders, post, p. 251. 3. And if before the execution of the contract there was any law tn force, giving the Legislature the right to modify it, or to repeal or modify a charter, etc., a subsequent repeal or modification will be good, for the power thus reserved enters into and becomes part of the contract at the time . 4. A judicial decision is a " law." The obligation of a contract cannot be impaired by a change in the judicial decisions of the State courts — the term "law" in the Constitution includes de- cisions of courts as well as statutes of Legislatures. Laws Impairing the obligation of contracts may be divided into two classes: (I.) those which apply to the terms of contracts, (II.) those which apply only to the remedy upon them. 248 CONSTITUTIONAL CASES SIMPLIFIED. I. As to laws which apply to the terms of contracts, there is not much confusion in the decisions. The cases of this character are well summed up by Mr. Pomeroy in these words : " In respect to pri- vate contracts between individuals, it is so plain as to require the ci- tation of no authority to support the proposition that all State laws operating upon past agreements, and affecting the very term s thereof, which wholly or partially discharge one contracting party, without the consent of the other, from doing the very thing which he agreed to do, or which add new stipulations or conditions to the agreenlent, or which take away any which were incorporated into it, or Which extend or shorten the agreed time for performance, or which render contracts illegal or void, which were before legal and valid, or which make those legal and binding, which were before illegal and null, all such legislative acts would impair the obligation of exist- ing contracts affected thereby. * * * in respect to contracts between a State and private persons, including grants and charters, it is equally plain that where no power for such purpose is ante- cedently reserved, all statutes directly repealing the grant or char- ter, or in any way modifying its express terms, by changing the organization of a corporation, or by taking away powers or by add- ing new conditions or duties, impair the obligation of this species of contracts." Pomeroy Const. L. 600, 601. State insolvent laws are an illustration of laws of this character. Such laws provide for the discharge, under certain conditions, of the debtor from his debts. Therefore, as decided in the great case of Sturges v. Crowninshield, they are void as to debts created before their passage, for in releasing the debtor from what he agreed to do, they impair, or rather destroy the obligation of the contract. But as to debts created subsequent to theirpassage, they are valid. On this point see Ogden v. Saunders, post, p 251 . II. As to laws which apply only to theremedy, there is more difficulty and It is here where the decisions of the courts are not always reconcilable. Laws of this kind fall under the following heads : 1. Laws taking away remedies. A law which deprives a party of all legal remedies upon an existing contract is void. But it seems if a person has two remedies, and a subsequent statute takes away only one of them it is not void, for he has still the other remedy left. 2. Statutes of limitation. A statute of limitation is one which prescribes that a person having a right of action shall commence it within a certain time, and if he fails to sue within that time the CONSTITUTIONAL CASES SIMPLIFIED. 249 doors of the courts are closed to him. The courts have laid it down that not all statutes of limitation are obnoxious to the consti- tutional provision. If their effect is to prevent a party from bringing an action — as by leaving him too short a time — then they are void, but if they leave him a reasonable time in which to come into court, although that time is shorter than had before existed, they are valid. For an Illustration of this distinction, see Terry v. Anderson, post, p. 254. 3. Laws abolishing imprisonment for debt. These, it is held, are not void, they do not at all impair the obligation of contracts. See Mason V. Haile, posi, p. 256. i. Stay and appraisement laws. A stay law is one which provides that execution or other process shall not issue for some definite period of time after the recovery of a judgment. An appraisement law is one which requires the property of a judgment creditor seized on execution to be appraised, and forbids its sale for a price less than a certain portion of its appraised value. These laws are held in the Federal courts to be unconstitutional so far as they apply to contracts entered into before their passage. See Bronson v.Kiazie, post, p. 257. But the State courts ttke a different view of the question. Thus, during the civil war, the Legislatures of Pennsylvania and Iowa, passed statutes staying all civil process against persons in the military service of the State or the United States, for the term of such service and a short period thereafter. The validity of these statutes was contested, but the Supreme Courts of both States decided that they were unobjectionable. Breitenbach v. Bush, 44 Pa. St. 313 ; McCormick v. Eusch, 15 Iowa, 127. S. Laws exempting property from execution. An exemption law is one which relieves all or a portion of a debtor's property from liability to be seized and sold under execution. A., for example makes a promissory note to B., which he fails to pay, and B. gets judgment against him. While the suit is pending the Legislature passes a law which exempts from execution A. 's tools, his house, his household furniture, and his homestead. Does such a law- effect B.'s claim. The courts say yes to this question when the amount of the exemption is reasonable. See Edwards v. Keazry, post, p. 260. Sturges V. Crowninshield is also a leading case on another point. The Constitution provides that Congress " shall have power to establish uniform laws on the subject of banliruptcies throughout 250 CONSTITUTIONAL CASES SIMPLIFIED. the United States." The question arises can the State pass bank- rupt or Insolvent laws also ? The answer is that the power is given to Congress ; but that body may or may not exercise this power. When it abstains from doing ao the States may legislate on the subject; but when Congress passes a bankrupt law the State laws must give way to the National law. Should Congress, however, abolish its bankrupt laws, then the State law comes in force again, to become nugatory, however, whenever Congress again sees flt to exercise its power on the subject. CONSTITUTIONAL CASES SIMl'LIFIED. 251 LAWS IN FORCE AT THE TIME OF CON- TRACT— DOMIGIL OF CREDITOR. OGDEN V. SAUNDERS. [12 Wheat. 358.] Ogden, who lived in New York, in Septemb-er, 1806, accepted certain bills of exchange held by Saunders, a resident of Kentucky. Subsequently he obtained a discharge under the New York insolvent law of 1801. But afterwards removing to Louisiana, he was sued upon these bills, and set up the New York discharge. The court decided that the New York law being in existence when the bills were accepted by Ogden, did not impair the obligation of a contract, and the dis- charge was valid. The insolvent act being part of the law when the contract was made, became part of the agreement. But on another ground Ogden was not so successful. The court held further, that the State statute could not affect the rights of creditors who were citizens of other States, and therefore could not bind Saunders. BALDWIN V. HAL,E. [1 Wall. 223.] 92,000. Boston, February 21, 1854. Six months after date, I promise to pay to the order of myself, two thousand dollars, payable in Boston, value received. J. W. Baldwin. Mr. Hale, of Vermont, as indorsee for value of the above note, brought suit on it one day in the United 252 CONSTITUTIONAL CASES SIMPLIFIED. States Circuit Court for the District of Massachusetts. Mr. Baldwin pleaded a discharge from all his debts in insolvency, which he had already obtained in a Mas- sachusetts court. Mr. Hale referred the court to Ogden v. Saunders, but Mr. Baldwin said that the courts of Massachusetts had always held that if the contract in express terms was to be performed in the State where the debtor re- sided, and where he obtained his discharge, the cred- itor, though an inhabitant of another State, is bound by it. But the Supreme Court of the United States said that the Massachusetts courts were wrong, and Mr. Baldwin's discharge was no defence to Mr. Hale's suit. The second question decided in Ogden v. Saunders, and the one also decided in Baldwin v. Hale was the following: Does the dis- charge of a debtor by the insolvent law of one State affect the claim of creditors in other States? Three classes of cases, it will be readily seen, may arise where this question will have to be an- swered, viz.; (1.) Where the creditor and debtor are inhabitants of the same State. (2.) Where the creditor and debtor are inhabi- tants of different States. (3.) Where the creditor and debtor are inhabitants of different States, but the contract is, by its terms, to be performed in the State where the debtor lives. The case ^bove decided that the creditor is bound in case 1, but is not bound in cases 2 and 3. 1. A. and B. are citizens of New York. The New York courts grant A. a discharge from his debts. This discharge destroys B.'s claim on A. 2. A. is an inhabitant of New York, C. of Kentucky. The New York discharge will not affect C.'s claim. See Ogden v. Saunders, ante, 251. • 3. A., a citizen of Massachusetts, executes a note payable In Boston, which comes into the hands of D., who resides in Ver- mont. The discharge of A. from his debts by a Massachusetts CONSTITUTIONAL CASES SIMPLIFIED. 253 court, doesnotaffectD.'Bclaim. The courts of Massachusetts for some time maintained that D's claim was affected in such cases, but Baldwin v. Hale, overturned these decisions. 254 CONSTITUTIONAL CASES SIMPLIFIED. STATUTES OF LIMITATION. TERKY V. ANDERSON. [5 Otto, 628.] By the law of Georgia up to the year 1869, a suit to enforce the liability of the stockholders of a bank for its debts was not barred until the expiration of twenty years from the time the action accrued. But in 1869 the Legislature declared that all actions of this charac- ter, among others, which had accrued prior to the 1st of June, 1865, should be brought by the 1st of January, 1870, or the right to sue would be forever barred. Mr. Terry, in 1874, brought an action against the assignees of the Planters' Bank, of Georgia, and was met by this statute. He did not deny that the statute, if valid, barred his claim, but he argued that it was unconstitutional as impairing the obligation of a con- tract. He argued, unfortunately for himself, on the wrong side. " The court," said Chief Justice Waitb, <'has often decided that Statutes of Limitation are not uncon- stitutional, if a reasonable time is given for the com- mencement of an action before the bar takes ef- fect. * * * It is difficult to see why, if the Legis- lature may prescribe a limitation where none existed before, it may not change one which has already been established. The parties to a contract have no more a vested interest in a particular limitation which CONSTITUTIONAL CASE8 SIMPLIFIED. 255 has been fixed, than they have in an unrestricted right to sue. They have no more a vested interest in the time for the commencement of an action than they have in the form of the action to be commenced, and as to the forms of actions or modes of remedy, it is well settled that the Legislature may change them at its discretion, provided adequate means of enforcing the right remain. In all cases the question is one of reasonableness, and we have therefore only to con- sider whether the time allowed in this statute is, under all the circumstances, reasonable. Of that the Legis- lature is primarily the judge, and we cannot overrule the decision of that department of the government, unless a palpable error has been committed." And as the statute in this case gave over nine months on which to sue upon a cause of action which had already been running over four years, the court thought there was nothing unreasonable in the new law, and Mr. Terry lost his case. Statutes of Limitation, it is said in amore recent case, are statutes of repose. "They are necessary to the welfare of society. The lapse of time constantly carries with it the means of proof. The public as well as individuals are interested in the principle upon which they proceed. They do pot impair the remedy, but only require its application within the time specified. If the period limited be unreasonably short, and designed to defeat the remedy upon pre-existing contracts which was part of their obligation, we should pronounce the statute void." Edwards j;. Kearzy,pos(, p. 260. 256 CONSTITUTIONAL CASES SIMPLIFIED. ABOLISHING IMPRISONMENT FOB DEBT. MASON V. HAIL£. [12 Wheat. 370.J Among the rights which a creditor formerly had of forcing his debtor to pay up was that of throwing him into jail. Imprisonment for debt is now pretty gener- ally abolished in this country, but in 1814 it had not been. Therefore it was, that Mr. Mason, of Rhode Island, who had an obdurate debtor by the name of Haile in durance vile, was not at all satisfied when the Legislature stepped in and ordered that a discharge in insolvency from all debts should also discharge a party " from all imprisonment, arrest, and restraint of his person therefor. ' ' Mr. Mason, of course, claimed that this law impaired the obligation of a contract. But the Supreme Court did not think so. Such a law acts merely upon the remedy, and that in part only. It does not take away the entire remedy, but only so far as imprisonment forms a part of such remedy. Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation. CONSTITUTIONAL CASES SIMPLIFIED. 257 APPRAISEMENT LAWS. BBONSOK V. KINZIE. [1 How. 311.] In 1838, the holder of a mortgage on land in Illinois was entitled by the law of the State to foreclose the same immediately upon a breach of the condition, and to have the land sold absolutely, and in that year Kin- zie executed a mortgage of his land to Bronson. Three years later the Legislature of Illinois passed a statute providing that in sales under a decree foreclosing a mortgage, the debtor should have the right to redeem the land within one year after the sale by paying the purchase-money and ten per cent interest, and that no sale should be made until the lands were first appraised, and unless they were sold for at least two-thirds of their appraised value. Shortly after this statute was passed Kinzie failed to jDay interest as agreed, and Bronson applied to have the lands sold absolutely for what they would bring. But Kinzie objected, and said that the sale should be made subject to the right of redemption, and should not be made at all if the land did not bring two-thirds its appraised value. The court was appealed to, and it decreed in favor of Bronson. The statute of 1841, it held, was void so far as it applied to this mortgage. "If the law of the State passed afterwards," said Chief Justice Taney, ' ' had done nothing more than ]7 258 CONSTITUTIONAL CASES SIMPLIFIED. change the remedy upon contracts of this description, they would be liable to no constitutional objection. For, undoubtedly, a State may regulate at pleasure, the modes of proceeding in its courts in relation to past contracts as well as future. It may, for example, shorten the period of time within which claims shall be barred by the Statute of Limitations. It may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing ap- parel, not be liable to execution on judgments * * » And although the new remedy may be less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional. What- ever belongs merely to the remedy may be altered according to the will of the State, provided the alter- ation does not impair the obligation of the contract. But if that effect is produced it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the Constitution. * * * It is difficult, perhaps, to draw a line that would be applicable in all cases between legitimate alteration of the remedy and provisions, which in the form of remedy, impair the right. But it is manifest that the obligation of a contract, and the rights of a party under it, may in effect be destroyed by denying a remedy altogether, or may be seriously im- paired by burdening the proceedings with new condi- tions and restrictions so as to make the remedy hardly worth pursuing. * * » If such rights (as given by the statute of 1831) may be added to the original con- tract by subsequent legislation, it would be difficult to CONSTITUTIONAL CASES SIMPLIFIED. 259 say at what point they must stop. An equitable in- terest in the premises may, in like manner, be conferred by others, and the right to redeem may be so pro- longed as to deprive the mortgagee of the benefit of his security by rendering the property unsalable for any thing like its value. This law gives to the mortgagor and to the judgment-creditor an equitable estate in the premises, which neither of them would have been entitled to under the original contract, and these neW interests are directly and materially in conflict with those which the mortgagee acquired when the mortgage was made. Any such modification of a contract by subsequent legislation, against the consent of one of the parties, unquestionably impairs its obligations and is prohibited by the Constitution." 260 CONSTITUTIONAI. CASES SIMPLIFIED. EXEMPTION LAWS. EDWARDS V. KBARZY. [6 Otto. 595.] Certain debts were incurred in North Carolina prior to the year 1868. In that year a new Constitution was adopted by which the personal property of any resident of the State to the value of $500 was exempted from sale under execution ; also a homestead and the dwel- ling and building thereon, not exceeding in value $1,000. The creditor tried to take these things from the debtor to liquidate his demands, but the latter claimed them as exempt under the Constitution. The creditor maintained that the new law, being passed after his demands were incurred, impaired the obligation of the contract, and was unconstitutional. And so thought the Supreme Court of the United States. -s The exemption law in this case was held void by the majority of the court on the ground that " in regard to the mass of contracts, and the situation and circumstances of debtors as they are ordina- rily found to exist, it would seriously affect the efficiency of reme- dies for the collection of debts." Doing so it impaired the obliga- tion of the contract and was void. Notwithstanding the result in this case, it does not follow that a law exempting necessary wear- ing apparel, or implements of agriculture, or the tools of mechan- ics, or articles or utensils of a household nature, recognized as CONSTITUTIONAL CASES SIMPLIFIED. 261 articles and utensils of necessity, would be void. Bat, like Statutes of Limitation, to be valid they must be reasonable. The North Caro- lina exemption was more than was necessary and reasonable and was therefore void. 262 COMSTITUTIONAL CASES SIMPLIFIED. EMINENT DOMAIN. WEST RIVER BRIDGE COMPANY v. DIX. [6 How. 507.] The "West Kiver Bridge Company had a charter from the State of Vermont grantmg them the exclusive privi- lege of erecting and maintaining a bridge over a river. A subsequent act of the Legislature provided for the condemning of property for highways, and under this statute, the authorities took the company's bridge (after assessing compensation for it) and turned it into a free public highway. The company argued that this proceeding impaired the obligation of a contract, and asked to have the thing set aside. But while the court agreed with them that the charter was a contract, it held that the charter was subject to the I'ight of eminent domain in the State, and that the company had no legal com- plaint. What is known as the power of eminent domain is the authority which the State has to control and appropriate private property for the public benefit, whenever the public safety,' convenience or welfare may require. It is a public necessity that there should be a street made through my lot. I cannot refuse to part with the portion of my land required for that purpose. The Constitutions of the United States, and of the States, provide, however, that private property shall not be taken without "just compensation," and, therefore, I am entitled to be paid the value of my property, and the State cannot take it away without paying me. CONSTITUTIONAL CASES SIMPLIFIED. 263 West River Bridge Company v. Dix is an important case, show- ing that a franchise, like any other kind of property, may be taken away in part or in whole by means of this power in the State. 264 CONSTITUTIONAL CASES SIMPLIFIED. CHAPTER YI. — THE POLICE POWER. PROTECTION OF PUBLIC HEALTH. THE SLAUGHTER-HOUSE CASES. [16 Wall. 36.] The Legislature of Louisiana in 1869 granted to a corporation the exclusive right for twenty-five years to maintain slaughter-houses and cattle-yards within a certain district, and prohibited all other persons from building or keeping such houses or yards within these limits. It is also required that all cattle or other animals intended for sale or slaughter within the district should be brought to the yards and houses of the corporation, and authorized the corporation to charge certain fees for the use of its property in this way. The butchers of New Orleans, which city was within the district, objected to this grant ; they said it was a monopoly, and for this reason illegal. But the court construed it as a " police " regulation, designed for the health and comfort of the people, and the butchers got no relief. The police power of a State has been defined as " the authority to establish for the intercourse of the several members of the body politic with each other, those rules of good conduct and good neighborhood which are calculated to prevent a conflict of rights and to insure to each the uninterrupted enjoyment of his own, so CONSTITUTIONAL CASES SIMPLIFIED. 265 far as is reasonably consistent with a corresponding enjoyment by others." Cooley Prin. Const. L. 227. "It extends to the pro- tection of the lives, limbs, health, comfort 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 prosper- ity of the State." Thorpe v. Rutland, etc., E. Co., 27 Vt. 149. Laws prohibiting work'and labor or the pursuit of occupations on Sunday are another instance of police regulations. Although they may be an encroachment on the religious liberty of a citizen, or a res- traint upon trade and commerce, they are sufficiently justifled,and are a valid exercise of the police power of the State. So are laws gov- erning the use of highways, such as regulating the speed of travel thereon, their improvement, etc. A like subject is the regulation of navigable waters. 266 CONSTITUTIONAL CASES SIMPLIFIED, POLICE POWER BESIDES IN THE STATES. POWERS OF CONGRESS. UNITED STATES v. DEWITT. [9 Wall. 41.] The Internal Kevenue Act, passed by Congress in 1867, declared that no person should, under penalty of fine and imprisonment, mix naptha and illumin- ating oil for the purpose of selling them, or offer this compound for sale. It also prohibited anyone from offering for sale oil made of petroleum for illuminating purposes, inflammable at less temperature than 100° Fahrenheit. Dewitt, who lived in Detroit, Michigan, did just what the statute said that people should not do, and being fined for his temerity, appealed to the Supreme Court, urging that Congress had no power to pass such a law. The court said he was right. "As a police regula- tion," they said, " relating exclusively to the internal trade of the States, it can only have eflect where the legislative authority of Congress, excludes, territorily, all State legislation, as for example, in the District of Columbia.'' The Constitution does not take away the police power from tbe States; it is left with them. The National government cannot assume any supervision of the police regulations of the States. But the Supreme Court of the United States is frequently called on to examine State statutes when they are passed ostensibly under CONSTITUTIONAL CASES SIMPLIFIED. 2U7 the police power, and to consider whether they do not interfere with some of the powers given exclusively to the National govern- ment. See Railroad Co. v. Husen, and Chy Lung v. Freeman, post, pp. 268, 269. 268 CONSTITUTIONAL, CASES SIMPLIFIED. MUST NOT CONFLICT WITH NATIONAL RIGHTS. BAIIiBOAD CO. V. HUSEN. [5 Otto, 465.] In violation of a statute of Missouri which prohib- ited any one from bringing any Texas, Mexican or Indian cattle into the State between March lat and November 1st in each year, the Hannibal and St. Jo- seph Railroad carried some of these cattle into Mis- souri. Now, these cattle had a disease called the Spanish fever, which they communicated to Mr. Hnsen's cattle, to his great loss, and Mr. Husen brought an action against the railroad company to re- cover his damages. The railroad company argued that the statute was void, as being a " regulation of commerce," and thus, as we have seen,^ beyond the power of a State to pass. Mr. Husen' s counsel on the other hand insisted that it was a police regulation. The railroad company won. "We admit," said the Supreme Court, "that the deposit in Congress of the power to regulate foreign commerce and commerce among the States was not a surrender of that which may pi'operly be denominated police power. What that power is it is difficult to de- fine with sharp precision. It is generally said to ex- tend to making regulations promotive of domestic 1 Ante, p. 215. CONSTITUTIONAL CASES SIMPLIFIED. 269 order, morals, health and safety. * * * it may also be admitted that the police powers of a State jus- tify 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 be- come a public charge, as well as persons afflicted by contagious or infectious diseases. 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 per- sons and property against noxious acts of other per- sons, or such a use of property as is injurious to the property of others. They are self-defensive." But, notwithstanding this, the court said that the police power of the State cannot be exercised over a subject confided exclusively to Congress by the Fed- eral government, beyond the absolute necessity for its exercise. Tested by this rule the Missouri statute was a plain intrusion upon the exclusive domain of Con- CHY LUNG V. FREEMAN. [2 Otto, 275.] A California statute required the master of every vessel arriving in the State from a foreign port to give a bond for every passenger who was a lunatic, idiot, deaf, dumb, blind, infirm, a public charge, or likely to 270 CONSTITUTIONAL CASES SIMPLIFIED. become one soon, or a lewd or debauched woman. Chy Lung was a Chinese woman, and a passenger on the steamship Japan, from China, When the ship landed at San Francisco the California officials decided that Chy Lung was a lewd woman, and refused to let her land until the captain had executed a bond under the statute, or paid a sum of money in commutation thereof which the statute permitted. The captain re- fused to do either. Chy Lung would have had to go back to China had a United States judge not issued a habeas corpus. The case went to the Su- preme Court of the United States, where the statute was declared void, and Chy Lung was allowed to remain in the " land of the free." The ground of the decision was, that even if it is within the police power of a State, to pass statutes in regard to the criminal, the pauper and the diseased emigrant landing within its borders, this power is limited to such laws as are absolutely necessary for that purpose. The statute of California extended far beyond the necessity, and invaded the right of Con- gress to regulate commerce with foreign countries. The question in tliese cases was whether what was called by the States a police regulation, and therefore within their power to pass, was really of this character, or whether it was a " regulation of commerce " in disguise. And the Supreme Court of the United States took the latter view of it, mainly for the reason that it was an exercise of that power beyond what was necessary, and inter- fered with the National authority over interstate and foreign com- merce more than there was any need for. As to the Missouri statute the court said : " It is not a quaran- tine law, it is nob an inspection law. It says to all natural persons and to all transportation companies : ' You shall not bring into the State any Texas cattle, or any Mexican cattle, or Indian cattle, be- tween March 1 and November 1 in any year, no matter whether they are free from disease or not; no matter whether they may do an in- CONSTITUTIONAL CASES SIMPLIFIED. 271 jury to the inhabitants of the State or not; and if you do bring them in, even for the purpose of carrying them through the State, without unloading them, you shall be subject to extraordinary lia- bilities.' Such a statute, we do not doubt, it is beyond the power of a State to enact." 272 CONSTITUTIONAL CASES SIMPLIFIED. ADMISSION TO THE BAB. BBADWELL. v. STATE. [16 Wall, 130.] There are not many female lawyers in the United States, but the few manage to make a good deal of noise. It is, therefore, not surprising to find one of them bringing a sovereign State to book in the Supreme Court of Illinois, for refusing to admit her to practice in its courts. She relied upon the Fourteenth Amendment to the Constitution, that no State shall " abridge the privileges or immunities of citizens of the United States." But it was no use. The right to practice law in the State courts was not such a privilege, said the court. The plaintiff made another point in this case. She quoted section 2 of article IV. of the Constitution, .which provides that "the citizens of each State shall be entitled to all privileges and immuni- ties of citizens in the several States," and said that being born in Vermont, and being refused admission to the bar in Illinois, she vpas vpithin the protection of this section. But it v?as discovered that she had lived a good many years and was then living in Chicago, and was, therefore, a citizen of the same State whose laws she was complaining about. So this section did not help her either. Subsequently to this case, the legislators of Illinois melted and passed a law permitting women to be admitted to the bar. The CONSTITUTIONAL CASES SIMPLIFIED. 273 plaintiff was then made happy,' and, in the words of her counsel is now able to manage those "many causes, in which the silver voice of woman would accomplish more than the severity and sternness of man could achieve," IS 274 CONSTITUTIONAL CASES SIMPLIFIED. CORPORATIONS. PAUL, T. VIRGINIA. [8 Wall. 168.] Mr. Samuel Paul, whom we remember^ as arguing before the Supreme Court of the United States that the Virginia statute, requiring a license from every for- eign insurance company doing business in Virginia, was a " regulation, of commerce," and therefore void, and whom we also remember received the answer that issuing a policy of insurance was not " commerce" at all, — Mr. Samuel Paul made before that tribunal an- other argument for the purpose of having the statute declared unconstitutional. He submitted that the statute conflicted with that clause of the United States Constitution which declares that *' the citizens of each State shall be entitled to all the privileges and immuni- ties of citizens in the several States" because here was a New York insurance company which could not do business in Virginia lilie a Virginia company, but had to get a license, deposit bonds, etc. But the court decided against Mr. Paul on two grounds. It ruled, first, that corporations are not " citi- zens" within the clause ; second, that the •' privileges and immunities" mentioned above, are those privileges and immunities which are common to the citizens in the ' Ante, p. 219. CONSTITUTIONAL CASES SIMPLIFIED. 275 latter States, under their constitution and laws, by vir- tue of their being citizens. Special privileges enjoyed by citizens in their own States are not secured by this provision in other States. INTOXICATING LIQUORS. BARTEMEYER v. IOWA. [18 WaJl. 131.] Bartemeyer was fined in Iowa for selling a glass of "whiskey in violation of a law of the State prohibiting the sale of intoxicating liquors. Bartemeyer appealed to the Supreme Court, alleging that he was a citizen of the United States, and that the Iowa law abridged his " privileges and immunities." But the court held that the law was valid. Regulating and totally pro- hibiting the liquor traffic fell within the police regula- tion of a State ; and the right to sell intoxicating liquors was not one of the "privileges or immunities," which by the Fourteenth Amendment the States are ibbidden to abridge. BEER COMPANY v. MASSACHUSETTS. [7 Otto, 25.] The Boston Beer Company was incorporated in 1828, for the purpose of manufacturing malt liquors in all their varieties, a statute being then in force in the State giving the Legislature power to alter or repeal 276 CONSTITUTIONAL CASES SIMPLIFIED. charters. Under a prohibitory liquor law, passed Iq 1869, certain malt liquors belonging to the company were seized and forfeited. The Beer Company claimed under its charter a right by contract to manufacture and sell liquor forever without interference. But the court decided otherwise. '« The police power," said Mr. Justice Bradley, " extends to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals. The Legislature cannot, by any contract, divest itself of the power to provide for tiiese subjects." It seems to be pretty well settled that the regulation or absolute prohibition of the manufacture and sale of intoxicating liquors is fully within the police power of the States. It seems, however, that there is a limitation, viz. : where the law interferes with some vested rights of property. This, however, has not yet been ex- pressly passed upon by the highest judicial authority, though there are dicta to that effect in both of the above cases. "No one," said one of the judges in Bartemeyer v. Iowa, " has ever doubted that a Legislature may prohibit the vending of articles deemed injurious to the safety of society provided it does not interfere with vested rights of property. When such rights stand in the way of the public good they can be removed by awarding compensation to the owner. When they are not in question, the claim of a right to sell a prohibited article can never be deemed one of the privileges and immunities of a citizen." Another constitutional question of an important character was raised in the Slaughter House Cases. It was argued that the grant to the Slaughter House Company violated the Thirteenth Amendment to the Constitution by creating an " involuntary servitude, " and that it also violated the Fourteenth Amendment, which provides : " No State shall make or enforce any law which shall abridge the privi- leges 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." But the court held that the Thirteenth Amendment had nothing to do with the case, because the "invol- untary servitude" prohibited by it referred only to some species of personal slavery, such as African slavery, which it had been CONSTITUTIONAL CASES SIMPLIFIED. 277 passed primarily to prevent for all time. As to the other objection the court held that It was absurd to say that the grant in question, deprived anybody of their life, liberty, or property ; that the " privi- leges or immunities" of citizens of the United States do not include the right to hold property, engage in business, etc., and that the inhibition against the States " denying to any person the equal protection of the law " was aimed (as the history of the time shows) exclusively at State statutes which were one-sided and oppressive in their effect upon the emancipated blacks. Four judges, however, did not agree with this latter conclusion. In later cases, it has been held that the right to practice law in State courts (Bradwell v. Illinois, ante p. 272) ; the right to sell in- toxicating liquors (Bartemeyeru. Iowa, Beer Co. «. Massachusetts, p. 275, are not " privileges and immunities of citizens of the United States " within the Fourteenth Amendment. 278 CONSTITUTIONAL CASES SIMPLIFIED. REGULATION OF BAILBOADS. RAILROAD COMPANY v. FtTLLER. [17 Wall. 560.] A statute of Iowa provided as follows, viz. : — 1. That each railroad company in the State should annually, in September, fix its rates for the transpor- tation of passengers and freights. 2. That it should, on the first day of the next month, post a printed copy of its rates at its stations and depots, and keep it there during the whole year. A failure to comply with this act, or the charging of a higher rate than was posted, subjected the ofiending company to the payment of a penalty. The Chicago and Northwestern Railroad Company posted up their rates as required, but one day charged a man named Fuller more than their schedule tariff, for which they were fined in an Iowa court. The railroad company appealed to the Supreme Court of the United States, and they tried hard to convince that tribunal that the Iowa statute (the raiU road running through several States) " was a regula- tion of commerce, and invalid." But the court considered it a regulation of police, and valid. " The statute," said Mr. Justice Swayne, " only required that the rates shall be fixed, made public, and honestly adhered to. In this there is nothing un- reasonable or onerous. The public welfare is pro- CONSTITUTIONAL CASES SIMPLIFIED. 279 moted without wrong or injury to the company. The statute was, doubtless, deemed to be called for by the interests of the community to be affected by it, and it rests upon a solid foundation of reason and justice. It is not, in the sense of the Constitution, a regulation of commerce. It is a police regulation, and, as such, forms a portion of the immense mass of legislation which embraces everything within the territory of a State not surrendered to the general government, all which can be most advantageously exercised by the States themselves." It is under the police power of the States that the railroads of the country are regulated. Thus, under this power, railroads may be compelled to fence their tracks ; to check their speed at exposed places ; to carry impartially for all persons ; to permit other roads to cross their track, and to share th? expense of the crossing; to ring a bell or sound a whistle at crossings, or to station a flagman at such places ; ^o exhibit their rates of fare (as in the principal case), and the like. 280 CONSTITUTIONAL CASES SIMPLIFIED, REGULATION OF CHARGES. PEIK V. CHICAGO A]!fD NORTHWESTERN RAILWAY COMPANY. [4 Otto, 164.] By its charter, the Chicago and Northwestei'n Rail- road Compa.ny was authorized to " demand and re- ceive such sums of money for the transportation of persons and property, and for storage of property as it shall deem reasonable." This charter was granted by the State of Wisconsin, whose Constitution at that time provided that acts for the creation of corporations might be at any time altei'ed or repealed by the Legis- lature. In 1874 the Grangers took a hand in legisla- tion, and passed laws regulating the charges of railroad companies in the State. The Chicago and North Western Eailroad Company tried to have these statutes declared void as to them, but without success. " Where property has been clothed with a public in- terest," said the Chief Justice, " the Legislature may fix a limit to that which shall in law be reasonable for its use. This limit binds the courts as well as the ' people. If it has been improperly fixed, the Legisla- ture, not the courts, must be appealed to for the change." CONSTITUTIONAL CASES SIMPLIFIED. 281 CHICAGO, BURLINGTON AND QUINCY RAEL- WAY COMPANY v. IOWA. [4 Otto, 155.] Ill 1876 the Granger iiioveinent in several of the States culminated in tlie passaofe of laws resfulatins i. O Co the rates which railroad companies should charge for the transportation of persons and property. Among others the Iowa Legislature passed a law fixing the maximum rate of charges for the transportation of freight and passengers in the. different railroads in the State. The Chicago, Burlington and Quincy Railroad, as lessee of sevei'al other roads in the State, was especially displeased with the law, and tried to enjoin the State officers from enforcing it, for the following reasons : — First, the railroad said that the Legislature had no right to say what it should charge for its services. But the court answered: "Railroad- companies are carriers for hire. "They are incorporated as such, and given extraordinary powers in order that they may the better serve the public in that capacity. They are, therefore, engaged in a public emploA'ment, affecting the public interest, and subject to legislative control as to their rates of fare and freight unless protected by their charters." Beaten from this position the railroad said that if the State hud the power it had never used it before, and from this tried to imply that the State had relin- quished it. But the court answered again: " It is a matter of no importance that the power of regulation now under consideration was not exercised for more 282 CONSTITUTIONAL CASES SIMPLIFIED. than twenty years after this company was organized. A power of government which actually exists is not lost by non-user. A good government never puts forth its extraordinary powers, except under circum- stances which require it. That government is the best which, while performing all its duties, interferes the least with the lawful pursuits of its people." Driven now quite into a corner, the railroad pleaded that before this law was passed, it had pledged its in- come as security for the paymeut of debts incurred, and had leased its road to a tenant that relied upon the earnings for the means of paying the agreed rent. But again the court shook its head and answered : " The company could not grant or pledge more than it had to give. After the pledge, and after the lease, the property remained within the jurisdiction of the State, and continued subject to the same governmental power that existed before." The I'ailroad having no more arguments to offer gave up the fight. MUNN V. ILLINOIS. [4 Otto, 113.] The grain elevators of Chicago are immense struc- tures, holding from 300,000 to 1,000,000 bushels at once, according to their size. But they are in the hands of a few great capitalists, and the Legislature of Illinois, coming to the conclusion that their charges were excessive and unfair, undertook to limit them and to prescribe by lawthe maximum which they should CONSTITUTIONAL CASES SIMPLIFIED. 283 be able to collect from their customers. The elevator men did not like this law at all, and made a great effort to have it declared unconstitutional, first by the Supreme Court of the State of Illinois, and next by the Supreme Court of the United States. But in neither tribunal did they succeed ; the law was sustained. As a general thing a man has a right to sell his goods at his own prices, and eannot be compelled to part with them against his will. But there are several exceptions to this rule, and one of these is the case of common carriers. Munn v. Illinois is an important case, making, as it does, the test the fact that the employment reg- ulated is a public one, and holding, as it does, that the business of conducting elevators for grain is a "public" employment within th& rule. 284 CONSTITUTIONAL CASES SIMPLIFIED. CHAPTEK YII. — MISCELLANEOUS CASES. "DUE PROCESS OF LAW" —'' LAW OF THE LAND." MURRAY'S LESSEE v. HOBOKEN LAIfD CO. [18 How. 272.] Samuel Swartwout, of New Jersey, a public officer of the United States, was found one day to be a debtor to the government. By virtue of a statute of Congress, authorizing the lands of debtors to the government to be seized and sold on a distress war- rant issued by the Secretary of the Treasury, Samuel's lands were taken possession of in this summary man- ner, sold, and the proceeds turned into the Treasury. Samuel took no heed of this proceeding, but sold the same land to the defendant. The plaintiff, who was the purchaser at the government sale, now brought suit against the defendant for the land. The latter claimed that, as the amount due from Samuel to the government had never been ascertained by any trial, and as the warrant under which the land was sold had not been issued from any court, the sale was void, as there had been no " due process of law," as required by the Constitution. CONSTITUTIONAL CASES SIMPLIFIED. 285 But the court thought otherwise. " Thono-h due process of law," said Mr. Justice Curtis, "generally implies and includes, actor, reus, judex, regular allega- tions, opportunity to answer, and a trial according'to some settled judicial proceedings, yet this is not uni- versally true. There may be, and we have seen that there are, cases under the law of England after Magna Charta, and as it was brought to this country and acted on here, in whi(!h process iu its nature final issues against the body, lands and goods of certain public officers without any such trial." That provision in the Constitution which says that no one shall be deprived of "life, liberty or property without due process of of law," was introduced to guard against a repetition of such practices as obtained in France before the Revolution, where a letter from the king sent a man to the Bastile for good. Our ancestors demanded this protection, and first got it in Magna Charta, which provides " that no freeman shall be taken, or im- prisoned, or disseized, or outlawed, or banished, or anyways de- stroyed, nor will the king pass upon him or commit him to prison, unless by the judgment of his peers and the law of the land." The phrases "law of the land" and "due process of law" are identical, and refer to the common or statute law of the land, so far as the Legislature keeps within the principles of right and justice. As Magna Charta was obtained to restrain the arbitrary exercise of kingly powers, so this provision of the Constitution restrains the arbitrary actions of Legislatures. Daniel Webster, the great expounder, has said of this provision : " Everything which may pass under the form of an enactment is not to be considered the law o-f the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judg- ments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land. * * » The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees, not to declare the law or administer the justice of the country." " By the law of the land, is most clearly intended the general law — a law which hears before it condemns, which proceeds upon 286 CONSTITUTIONAL CASES SIMPLIFIED. "inquiry, and renders judgment only after trial." But, as laid down in Murray's Case, supra, the same forms are not always necessary ; in some cases the government may interfere directly and without a trial. So, under this provision, a person is not entitled to a jury trial, but his case may be tried by a judge, or military offenders may be tried by military tribunals, provided everything conforms to the -established principles of right and justice. CONSTITUTIONAL CASES SIMPLIFIED. 287 ''Elt POST FACTO" LAWS. CALDER V. BULL,. [3 Ball. 386.] In the year 1793 a Probate Court in Connecticut rendered a decree refusing to admit a certain will to probate, and the parties presenting it, having failed to appeal within the time prescribed by statute, there was nothing further that the court could do for them in the matter. At this juncture, the Legislature, at their request, passed a law setting aside the decree of the Probate Court, and ordering a new hearing. The court heard the case again, and this time made a de- cree establishing the will. The other side now ap- pealed to the Supreme Court of the United States, claiming that the act of the Legislature was an expost facto law and, therefore, void. But the Supreme Court did not agree with them. " In my opinion," said Mr. Justice Chase, " the true distinction is between ex poxt facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law. The former only are prohibited. * * * The plain and obvious meaning and intention of the prohibition 288 CONSTITUTIONAL CASES SIMPLIFIED. is this : that the Legislature shall not pass laws after a fact done by a subject or citizen which shall have re- lation to such fact, and shall punish him for having done it. The prohibition considered in this light is an additional bulwark in favor of the personal security of the subject to protect his person from punishment by legislative acts bearing a retroactive operation. I do not think it was intended to secure the citizen in his private rights of either property or contract. I will state what laws I consider ex post facto within the words and intent of the prohibition : — "1. Every law that makes an action done before . the passage of the law, and which was innocent when done, criminal, and punishes such action. " 2. Every law that aggravates a crime, or makes it greater than it was when committed. " 3. Every law that changes the puuishmeut and inflicts a greater punishment than the law annexed to the crime when committed. " 4. Every law that alters the legal rules of evidence and receives less or difierent testimony than the law required at tlie time of the commission of the oflence, in order to convict the ofiender." And as the Connecticut statute did not fall within any of the above four divisions, the court held that it was valid. The Constitution proliibits botli the States and the United States from passing ex post facto laws. All retrospective laws would seem to be embraced in the term ex post facto laws, but Calder V. Bull determined that in the United States Constitution these words are limited to laws of a criminal nature. Laws of this kind CONSTITUTIONAL CASES SIMPLIFIED. 289 according to Mr. Justice Chase may be classed under four heads : — 1. A law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. — At common law adultery was not a criminal offence. A. commits adultery in December, 1850. In January, 1851, the Legis- ture passes a law making adultery punishable with fine and impris- onment, whether committed before or after its passage. The statute would be void as to A.'s act, because expost facto. 2. A law aggravating a crime or making it greater than it was when committed. — In 1880, gambling in the State of Missouri was a mis- demeanor. A State law passed in 1881, and declaring those con- victed of gambling in 1880 to be felons, would be ex post facto and void. 3. A law changing the punishment and inflicting a greater punish- ment than the law annexed to the crime when committed. — A negro was tried in Alabama in 1866 for burglary. After the crime was com- mitted, the punishment for burglary was changed from imprison- ment for three years to imprisonment for^ee years, or death, in the discretion of the jury. It was held that the negro could only be punished under the old law. Miles v. State, 40 Ala. 39. But a law which ameliorates the offence by making the punishment less is not within the rule ; and a subsequent increase of punishment for a second offence is not ex post facto. Rand v. Commonwealth, 9 Gratt. 738. 4. A law which alters the legal rules of evidence and receives less or different testimony than was required at the time of the commission of the offence, in order to convict the offender. — The law of Alabama was that a conviction could not be had on the testimony of an accom- plice. Subsequently a statute was passed enacting that this law should not extend to misdemeanors. But it was held that this could not apply to misdemeanors committed before its passage. Hart v. State, 40 Ala. 32. But the following kinds of laws have been held not within this provision, viz. : A law which changes the practice in criminal cases, but preserves to the prisoner his substantial rights (State V. Manning, 14 Tex. 402; State v. Corson, 59 Me. 137) ; or which takes away from him the privilege of mere technical objec- tions (Com. V. Hall, 97 Mass. 570) ; or which limits the number of peremptory challenges to jurors (Dowling v. State, 6 S. & M. 664) ; or modifies the ground of challenge for cause (Stokes v. People, 53 19 290 CONSTITUTIONAL CASES SIMPLIFIED. N. Y. 164) ; or permits a chang:e of venue for the purposes of a fair trial. Gut v. State, 9 Wall. 35. The Supreme Court have lately extended the rules in Calder v. Bull, and have announced the doctrine that any law passed after the commission of an offence which alters the position of a party to his disadvantage, is an ex post facto law, and void as to him. Kring «. State, 16 Cent. L. J. 308. CONSTITUTIOXAI. CASES SIMPLIFIED. 291 TWICE IN JEOPARDY." UNITED STATES v. PEREZ. [9 Wheat. 570.] Joseph Perez was tried in New York for a capital offence ; but, the jury being unable to iigree, were dis- charged by the court. Joseph Perez afterwards claimed his discharge, arguing that he could not be tried again as he had been already once in jeopardy for the crime charged. But the court did not think so. " We are of opin- ion," said Judge Story, " that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put on his defence." Art. V. of the amendments to the Constitution of the United States'says that no person shall " be aubject for the same offence to be twice put in jeopardy of life or limb." The meaning of this is that one trial and one verdict protect a person against a subse- quent accusation for the same offence, whether the verdict be for or against him, or whether the courts are satisfied with the verdict rendered or not. Therefore, when a person charged with a crime ii put on trial before a court of competent jurisdiction, and a jury has been empanneled, he is "in jeopardy," andcannotagaln be tried for the same crime, whatever may be the result of the first trial. There are, however, as usual, some important exceptions to this rule, viz. ; 1. Where the prisoner is convicted, but on his own appeal the judgment is set aside either by the court that tried him, or an ap- pellate court. 292 CONSTITUTIONAL CASES SIMPLIFIED. 2. Where the court which tried him has no jurisdiction of the case. 3. Where- the indictment was defective. 4. Where the jury is discharged through necessity, as when a juror takes sick, or dies, or the jury cannot agree, as in Perez's case. In all these cases the prisoner may be put on a second trial, for he has not been in legal "jeopardy" within that term as used in the Constitution. CONSTITUTIONAL CASES SIMPLIFIED. 293 " CRUEL AND UNUSUAL PUNISHMENTS. WrLKERSON V. UTAH. [ 9 Otto, 130. ] Wilkersoa was tried in the country of the Mormons and convicted of the murder of William Baxter, in July, 1877. According to the law of Utah a person convicted of any crime, the punishment of which is death, may be shot, hanged or beheaded, as the court may direct or as the criminal may choose. Wilkerson not making the grim election which the law allowed, the judge sentenced him to be shot, and the point was made in the Supreme Court that to put a man to death by shooting was a "cruel and unusual punishment" within the meaning of thc^e words in the Constitution. But the court was not ofthis opinion. " Difficulty," said Mr. justice Clifford, " would attend the effort to define with exactness the extent of the constitu- tional provision, which provides that • cruel and un- usual punishments ' shall not be inflicted ; but it is safe to affirm that punishments of torture, such as those mentioned by Blackstone, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution." The cases mentioned by Blackstone, are where the prisoner convicted of treason was drawn on hurdles to the place of execu- tion, and then disembowelled, his entrails burned before his eyes, and after being hanged and cut down alive a few times he was 294 CONSTITUTIONAL CASES SIMPLIFIED. beheaded and quartered, and his limbs sent around the country ta adorn the walls of the larger cities. This is a way our ancestors had of making crime odious. The modern theory of punishment is that it should only be inflicted for two purposes, viz. -. to reform the criminal, and to protect society. Capital punishment is permitted for this end, and therefore torture is not permitted. A recent case in California touched upon the construction of the constitutional provision prohibiting " cruel and unusual punish- ments." Among the many methods which the people of California tried to make John Chinaman's lot not a happy one was the pass- age of an ordinance of San Francisco, that every male person committed to the county jail should Immediately upon his arrival there have the hair of his head clipped short. This was, of course, directed against John's queue, for to lose this appendage is considered among Chinamen as a disgrace, and as entailing terrible punishment after death. But the United States Court decided that as applied to John this was a " cruel and unusual punishment," and, therefore, not constitutional. Ho Ah Kow u.Nunan, 18 Am. L. Reg. 676. Table of Abbreyiations in this Volume. Ala Alabama Supreme Court Reports, 1840- Allea .... Allen'sMassachnsettg Reports, 1861-1867. Am. L. Reg. . American Law Register, 18 — . Am. Ld. Gas. . American Leading Cases, 1871. Atk. . . . Atkyns' English Ctiancery Reports, 1736- 1755. Barb. . . Barnard. Ch. Beav. . Bing. . . Bisp. Eq. Blatchf. Bridg. Bro. Ch. Cas. Temp. Talbot. Cas. Temp. Finch . Cent. L. J. Barbour's New York Supreme Court Re- ports, 1847-1875. Barnardiston English Chancery Reports, 1740-1741 Beavan's English Rolls Court Reports, 1836-1866. Bingham's English Common Pleas Re- ports, 1822-1834. Bispham's Treatise on Equity, 1878. Blatchf ord's U. S. Circuit Court Reports, 1845-1882. Bridgman's English Common Pleas Re- ports, 1613-1621. Brown's English Chancery Reports, 1778- 1794. Cases in the time of Chancellor Talbot, 1734-1738. Cases in the time of Chancellor Finch. Central Law Journal, 1874- ( 295 ) 296 TABLE OF ABBREVIATIONS. Ch. Div. . . English High Court, Chancery Division, Eeports, 1875- Co Coke's English Kings Bench Reports, 1572-1616. Colles P. C. . Colles' English House of Lords Reports, 1697-1714. Conn. . . . Connecticut Supreme Court Reports, 1814- Cooley Princ. . Cooley Principles of Constitutional Law, Const. L. . . 1882. Cox. Ch. . . Cox's English Chancery Cases, 1783- 1796. Cranch , . . Cranch's U. S. Supreme Court Reports, 1800-1816. Dall Dallas' U. S. Supreme Court Reports, 1790-1800. Daly .... Daly's New York Common Pleas Reports, 1859-1880. Dana .... Dana's Kentucky Reports, 1833-1840. Deady . . . Deady's U. 8. Circuit Court Reports, 1861- DeG. & Sm. . DeG-ex and Smale's English Vice-Chan- cellor's Reports, 1846-1852. Dr. & Sm. . . Drewry and Smale's English Chancery Reports, 1860-1865. Dr. & War. . . Drury and Warren's Irish Chancery Re- ports, 1841-1843. Dyer Dyer's English Kings Bench Reports, 1513-1532, Eden .... Eden's Chancery Reports, 1757-1767. Eq. Cas. . . . English Equity Cases, 1876- Eq. Cas. Ab. . English Equity Cases Abridged, 1792. Esp Espinasse's English Nisi Prius Reports, 1793-1807. TABLE OF ABBREVIATIONS. 297 Grant's Cas. . Grant's Pennsylvania Cases, 1852-1863. ^I'^tt Grattan's Virginia Reports, 1844-1881. H. & M. . . . Hemming and Miller's English Vice- Chancellor's Reports, 1862-1865. Hare .... Hare's English Vice-Chancellor's Reports, 1841-1863. H. L. Cas. . . English House of Lords Cases, 1847-1865. How Howard's U. S. Supreme Court Reports, 1843-1860. Hun .... Hun's New York Supreme Court Reports, 1873- 111 Illinois Reports, 1819. Ind Indiana Supreme Court Reports, 1848. Indermaur Ld. . Indermaur's Leading Cases in Equity, Cas. Eq. . . 1881. Iowa .... Iowa Supreme Court Reports, 1855. Ir. Rep. (L.) . Irish Reports, Common Law, 1867-1878. Jac. & W. . . Jacob and Walker's English Chancery Re- ports, 1819-1821. Johns Johnson's New York Reports, 1806-1823. Johns. Ch. . . Johnson's New York Chancery Reports, 1814-1823. Jur. (n. s.) . . English Jurist (new series), 1855-1856. Kas Kansas Supreme Court Reports, 1862- L. R. Ch. . . . Enghsh Law Reports (Chancery) 1866- 1875. L. R. Ch. App. . English Law Reports (Chancery Appeal), 1866-1875. L. R. Eq. . . • English Law Reports (Equity), 1866- 1875. 298 TABLE or ABBREVIATIONS. L. E. H. L. Cas. . English Law Reports (House of Lords), 1866-1875. L. T. (n. s.) . . English Law Times (new series), 1859- Macn. & G. . . Macnaghten and Gordon's English Chan- cery Cases, 1849-1851. Maeq Macqueen's Scotch Cases in House of Lords, 1851-1873. Mass Massachusetts Supreme Court Keports^ 1804- Md Maryland Supreme Court Reports, 1851- Md. Ch. . . . Maryland Chanceiy Reports, 1847-1854. Me Maine Supreme Court Reports, 1820- Miss Mississippi Supreme Court Reports, 1818- Mos Moseley's English Chancery Reports, 1726-1731. Mylne & Cr. . . Mylne and Craig's English Chancery Re- ports, 1836-1840. N. H New Hampshire Reports, 1816- N. J. (Eq. ) . . New Jei'sey Equitj^ Reports, 1830- N. Y New York Court of Appeals Reports, 1847- Otto .... Otto's U. S. Supreme Court Reports, 1875- Paige Ch. . . . Paige's New York ■ Chancery Reports, 1828-1845. Pa. St Pennsylvania State Reports, 1844- Pet Peter's United States Supreme Court Re- ports, 1827-1842. Phila Philadelphia Reports, 1850. Pomeroy Const. . Pomeroy's Manual of Constitutional Law, L 1883. TABLE OF ABBREVIATIONS. 299 Prec. in Ch. . . Fincli's Precedents in Chanceiy, 1689- 1723. P. "Wms. . . . Peere "Williams' English Chancery Re- ports, 1695-1736. Redf Eedfield's New York Surrogate Reports, 1857-1880. Rich. Eq. . . . Richardson's South Carolina Chancery Reports, 1844-1846. Sandf. Ch. . . Sandford's New York Chancery Reports, 1843-1847. Sel. Gas. Ch. . . Select Cases in Chancery (English). Sim Simon's English Vice-Chancellor's Re- ports, 1826-1849. Sim. (n. s.) . . Simon's English Vice-Chancellor's Re- ports (new series), 1850-1854. Snell Eq. . . . Snell's Treatise on Equity Jurisprudence, issl. Story .... Story's U; S Circuit Court Reports, 1839- 1845. Swanst. . . . Swanston's English Chancery Reports, 1818-1819. Tex Texas Supreme Court Reports, 1846^ Tud. Ld. Cas. . Tudor's Mercantile and Marine Cases. ' ' ' ' Tudor's Leading Cases on Conveyancing. Con. ... Vern Vernon's English Chancery Reports, 1681- 1720. Yeg Vesey, jr.'s, English Chancery Reports, 1789-1.S16. Ves. Sr. . • • Vesey. sr.'s, English Chancery Reports, 1747-1756. 300 Ves. & B. Vin. Ab. TABLE OF ABBREVIATIONS. . Vesey & Beames' English Chancery Re- ports, 1812-1814. . Viner's Abridgement of Law and Equity, 1791-1794. Vt Vermont Supreme Court Reports, 1826- Wall Wallace's U. S. Supreme Court Reports, 1863-1875. Wh. & Tud. Ld. . White & Tudor' s Leading Cases in Cas. Eq Wheat. Wis. . W. R. . Wms. Real Assets W. Va. Equity. Wheaton's United States Supreme Court Reports, 1816-1827. Wisconsin Supreme Court Reports, 1853- English Weekly Reporter, 1853- WiUiams' Treatise on Real Assets, 1861. West Virginia Supreme Court Reports, 1863- INDEX. ACCIDENT. Belief In equity because of, 82-93. Loss of documents, 82. Imperfect execution of powers, 86. Powers conflict with trusts, 88. Accidental forfeitures, 89-91. Accidental penalties, 92, 93. When equity will not relieve, 84. ACTIONS. Equity will enjoin actions at law when, 129-131. ADMINISTRATION. Rule as to, of assets, 59, 60, 61. Marshalling assets, 62, 63. ADVANCEMENT. Rules as to, 15. APPRAISEMENT LAWS. Constitutionality of, 249, 257, 259. BANKRUPTCY. When States' may pass bankruptcy laws, 250. BELLS. Nuisance from, 143-145. "BILLS OP CREDIT." What are, 211-214. BORROWING MONEY. Power of States as to, 211-214. "Bills of credit," 211-214. CARRIAGES. Tax on , not a " direct tax, " 1 94 . 802 INDEX. CESTUI QUE TRUST. Definition of, 3. CHARGES. (See Regulations.; CHARITABLE TRUSTS. Do not fail, 20, 21. The " cy pres " doctrine, 20, 21. CHINESE. Statute prohibiting under penalty emigration of, 269, 270. Statute ordering queues of, to be clipped, 294. COMMERCE. Power of States to, 215, 227. Local regulations, 218. Definition of, 219. And the police power, 225-227. CONSTRUCTIVE TRUSTS. "Vendor's lien for purchase money, 22, 23. CONTRACT. Equity will enjoin breach of contract when, 132-134. CONTRACTS. A grant from a State is a contract, 22S. But public offices, are not, 230. Nor are licenses, 232. Charters to private corporations are, 234-241. Exemptions from taxation are, 237. Must be expressed, 242. What laws impair "obligation of contracts," 246. Insolvent laws void as to past contracts, 246, 253. Effect of statute of limitations, 249, 254, 255. Of stay under appraisement laws, 249, 257-259. Of laws abolishing imprisonment for debt, 249. ♦ Of laws exempting property from execution, 249, 260, 261-266. Eminent domain, 262, 263. CONTRIBUTION. Between sureties, the doctrine in equity, 71. CONVERSION. The doctrine of, 39, 40, 41, 42, 43. COPYRIGHT. At common law, 167. INDEX. 303 COPYRIGHT — Continued. Under statutes, 1G8. When equity will enjoin piracy, 168. Bona fide abridgements, 1G7, 168. CORPORATIONS. (See also Raili{0.\ds.) Charters to private corporations are contracts, 234. So as to collateral stipulation therein, 237. Contracts not implied, 242. Charters to municipal, not contracts, 244. CREDITORS. Conveyances to defraud, 109. CRUEL AND UNUSUAL PUNISHMENT. What is a, 293, 294. CY PRES. The doctrine of, 21. DEFINITIONS. Of trust, 3. Of trustee, 3. Of cestui que trust, 3. Of executory trust, 7. Of executed trust, 7. Of volunteer, 8. Of resulting trust, 15. Of "CI/ pres," 21. Of general legacy, 34. Of specified legacy, 34. Of demonstrative legacy, 34. Of precatory trusts, 11, 12, 13. Of advancement, 15. Of vendor's lien, 22. Of pecuniary legacy, 34. Of donatio mortis causa, 36. Of conversion, 39, 40. Of election, 46. Of satisfaction, 55. Of mistake, 97. Of reconversion, 40. Of performance, 50. Of accident, 83. 304 INDEX. DEFINITIONS — Continued. Of actual fraud, 105. Of constructive fraud, 105. Of Injunction, 130. "Direct tax," 194. " Duty of tonnage," 209. "Bill of credit," 214. "Regulation of commerce," 215-227. "Commerce," 219. "Eminent domain," 262. J'olice power, 264. "Public employment," 283. " Privileges or immunities," 272, 274, 275. "Citizens," 274. " Involuntary servitude," 276. "Due process of law," 284-286. " Law of the land," 284-286. ''Ex post facto," 287-290. " Twice in jeopardy," 291, 292. "Cruel and unusual punishment," 293, 294. "DIRECT TAX." What is a, 194. DOMICIL. Effect of domicil of creditor on insolvent laws, 251, 252. DONATIO MORTIS CAUSA. Rules as to, 86, 37, 38. "DUE PROCESS OF LAW." What is, 284, 286. DUTIES. State duties on imports, 197, 198. State duties on exports, 199-201. "DUTY OF TONNAGE." What is a, 209. ELECTION. The doctrine of, 44, 45, 46, 47. ELEVATORS. Statutes regulating charges of, constitutional, 282, 283. INDEX. 305 EMINENT DOMAIN. Defined, 262. Effect of power of, on franchises, 262, 263. EXECUTED TRUST. Definition of, 7. EXECUTORY TRUSTS. (See Trusts.) Deilnilion of, 7. EXEMPTIONS. Constitutionality of laws exempting property from executor 2G0 2G1. ' EXPORTS. State duties on, 199-201. "EX POST EACTO" LAWS. What are, and what are not, 287-290. FEDERAL AGENCIES. Cannot be taxed by State, 202-205. FIDUCIARY RELATION. Bargains between persons in, 107. FORFEITURES. (See Penalties and Fokpeitukes.) FORMER EMPLOYMENT. Statements as to when enjoined, 176. FRAUD. Contracts in restraint of marriage, 102, 103. Bargains with heirs, 104. Bargains between persons in fiduciary relation, 107. Frauds upon creditors, 109. Frauds upon marital rights, 111, 112. Frauds upon powers, 113, 114. Bona fide purchasers protected, 115. HEALTH. Protection of public health under police power, 264, 266. Statute prohibiting importation of cattle, 268, 269. HEIRS. Bargains with, 104. HOUSE OF ILL-FAME. Equity will enjoin, 138. 306 INDEX. HUSBAND AND WIFE. Frauds on marital rights, 111, 112. IMPLIED POWERS. Powers implied in Constitution, 185-187. IMPORTS. State duties on, 197, 198. IMPRISONMENT. Laws abolisliing imprisonment for debt constitutional, 249, 256. INJUNCTIONS. (See Actions; Contract; Nuisance; Patents; CoPYEiGHT; Trade-marks.) INSOLVENT LAWS. Impair obligation of contracts when, 246-253. Effect of domicil of creditor on, 251, 252. "JEOPARDY." Meaning of, 291, 292. JURISDICTION; Equity acts on the person, 127, 128. "LAW OF THE LAND." What is, 284, 286. LAWYERS. State may prescribe qualification of, 278, 274. LEGACIES. (See Wills.) LETTERS. Property in, 169. LICENSES. Not " contracts " within the Constitution, 232. Nor " privileges or immunities," 275. LIEN. Vendor's lien for purchase-money, 22, 23. LIQUORS. Licenses to sell, not contracts, 233. Nor within amendments to constitution, 275. LIMITATION. Constitutionality of statutes of, as to past contracts, 249, 254, 255. INDEX. 307 LIMITATIONS OF POWER. General, in Constitution do not apply to States, 181-185. LITERARY PIRACY. (See Copyright.) LIVERY STABLE. Not a nuisance per se, 154. LOTTERY. License to run lottery not a contract, 232. MARRIAGE. Contracts in restraint of, 102. MARRIED WOMEN. Equity to settlement, 73-75. Her property riglits in equity, 74-76. Rights and liabilities as to separate estate, 77-79. Restraint on alienation, 80, 81. MARSHALLING ASSETS. Rule as to, 62, 63. MASTER AND SERVANT. Statements as to former employment when enjoined, 176-178. MAXIMS OF EQUITY. " Equity follows the law," 7, 66. "Equity looks on that as done which ought to be done," 39. " Equity imputes an intention to fulfill an obligation," 48. "Equality is equity," 66, 71. " He who seeks equity must do equity," 73. "Equity acts in personam," 127. MISTAKE. Mistakes of law when and when not relieved, 94-98. Mistakes of fact when and when not relieved, 99-101. MORTGAGE. Equitable mortgages, 64, 65. MUNICIPAL CORPORATIONS. Charters to, not contracts, 244. But property of, protected, 244, 245. NOISE. Nuisance from noise, 143-145. Bells, 143-145. 308 INDEX. NOISE — Continued. Improper use; horses in stable, 146-148. Proper use noise not enjoined, 149-158. NOXIOUS VAPORS. Equity will restrain, 135-137, 140. NUISANCE. Equity will restrain nuisance, 135-137. Will restrain public nuisance, 138, 139. House of ill-fame, 138. Will restrain smoke and noxious vapors and smells, 140. Will restrain noise : bells, 143-145. Improper use, horses in stable, 146-148. Proper use, 149-151. No trade a nuisance per se, 153-155. Livery stable, l34. May be disagreeable without being hurtful, 156-158. Coming to nuisance no defence, 159-161. Length of time immaterial, 162, 163. OFFICES. Of United States cannot be taxed by State, 303. Of State cannot be taxed by United States, 206. Not " contracts " within Constitution, 230. PATENTS. Infringement of, enjoined, 164-166. PENALTIES AND FORFEITUKES. When not enforced in equity, 68, 69, 70. Relieved from on ground of accident, 89, 92. PERFORMANCE. The doctrine of, 48-51. PILOTAGE LAWS. Power of States as to, 218. POLICE POWER. Commerce and the, 225-227. Protection of public health, 264, 265. Resides in the States, 266, 2G7. But must not conflict with natural rights, 268-271. INDEX. 309 POWERS. Imperfect execution of, remedied, 86. Powers coupled witli trusts, 88. Frauds on, 113, 114. PRECATORY TRUSTS. What are, 11. "PRIVILEGES OR IMMUNITIES." Admission to tlie bar not within this term, 272, 273. Nor privileges of corporations, 274. Nor right to sell liquors, 275. PURCHASERS. Bona fide, protected, 115. RAILROADS. (See Regulations.) RECONVERSION. The doctrine of, 40. REGULATIONS. Of railroads constitutional, 278, 279. And of rates of fare on railroads, 280-282. And of charges of elevators, 282, 283. RESULTING TRUSTS. When do and do not arise, 14, 15, 16. REVOCATION. Trust cannot be revoked when, 10. SATISFACTION. The doctrine of, 52-58. SHELLEY'S CASE. Rule of, explained, 4. Does not apply to executory trusts, 4, 6, 7. SMELLS. Equity will enjoin, 140. SMOKE. Equity will enjoin, 135, 137, 140. SPECIFIC PERFORMANCE. Not decreed of chattels, when, 116-120. Articles of special value, 118, 119. Decreed of real property, 121-124. When not decreed, 125, 126. 310 INDEX. STATES. Police power resides in the States, 266, 267. But must not conflict with national rights, 268-271. General limitations In Constitution do not apply to, 181-185. Cannot tax federal agencies, 202-205. Cannot levy " duties of tonnage," 208-210. Power as to borrowing money, 211-214. Cannot "regulate commerce," 215-227. Except as to local regulations, 218. And in matters of police, 225-227. STATUTE OF FRAUDS. Trusts must be in writing, 2. STAY LAWS. Constitutionality of, 249. SURETIES. Contribution between, in equity, 71. TAXATION. (See also Duties.) Extent of the taxing power, 188-191. Cannot be exercised on property beyond jurisdiction, 191. Tax must be for public purpose, 192, 193. What are " direct taxes," 194-196. State duties on " imports," 197, 198. State duties on exports, 199-201. States cannot tax federal agencies, 203. No United States, State agencies, 206. United States offices not to be taxed by State, 203. Nor State offices by United States, 206. What are " duties of tonnage," 208-210. Exemptions from taxation are contracts, 237. TENjVNCY in COMMON. Rules in equity as to, 66, 67. TRADE. No trade a nuisance per se, 153-155. TRADE-MARKS. Family name when used to deceive enjoined, 170. Otherwise when no intent to deceive, 174, 175. No relief to wrong-doer, 171. Right to trade-mark acquired by user, 172. What may be subject of trade-mark, 172. INDEX. 311 TRUSTEE. Definition of, 3. TRUSTEES. Purchases by trustees generally invalid, 24, 25. Compensation of, 26. Purchases from trustees, 27, 28. Responsibility for acts of co-trustee, 29, 30, 31. TRUSTS. (See also Trustees.) Doctrine of uses and trusts explained, 1, 2. Must be in writing by statute, 2. Definition of trust, 3. Rule in Shelley's case does not apply to executory trusts, 6. Imperfect conveyance constitutes a trust, 8. Except as to volunteer, 9. Constructive trust, 22-28. Vendor's lien for purchase-money, 22, 23. Purchases by trustees, 24, 25, 26. Purchases from trustees, 27, 28. Cannot be revoked, when, 10, Precatory trusts, 11, 12, 13. When resulting trusts do and do not arise, 14, 15, 16. Failure of trust, 19. > Charitable trust does not fail, 20. The "cypres^' doctrine, 20, 21. USES. No use upon a use, 1. Doctrine of uses explained, 1, 2, 3. The statute of uses, 2. VOLUNTEER. Definition of, 9. WILLS. The different kinds of legacies and their effects, 33, 34, 35. Donatio mortis causa, 36, 37, 38. Satisfaction of legacies, 52-58. WOMEN. State may refuse, admission to bar, 273, 274.