A TREATISE ON THE RIGHTS
AND PRIVILEGES GUARANTEED
BY THE FOURTEENTH AMEND-
MENT TO THE CONSTITUTION
OF THE UNITED STATES.:
BY
HENRY BRANNON
(JUDGE OF THE SUPREME COURT
OF WEST VIRGINIA.)
CINCINNATI
W. H. ANDERSON & CO.
1901.
1901
COPYRIGHT.
W. H. ANDERSON & CO.
GENERAL
PREFACE.
As the author has observed through many years, it is
almost daily, in the federal and state courts, that the
Fourteenth Amendment to the Constitution of the United
States is appealed to. All those, whether citizens or deni-
zens, who are, or allege themselves to be, unjustly affected
in the great rights and privileges and immunities of citi-
zenship, life, liberty, property or equality, invoke that
Amendment for their safety and shield against the action
of officers and courts under, state authority, and against
federal governmental authority as forbidden by like prin-
ciples found in the Fifth Amendment. More particularly
is this so where those cardinal rights are prejudiced by
the exercise of public authority by the tribunals or officers
of the states, or their municipalities; then the federal
courts are called upon to assert their jurisdiction for the
vindication of those rights guaranteed against state in-
fraction by the Fourteenth Amendment. The supreme
importance of that Amendment, from its presence in the
federal Constitution, with its paramount obligation, is at
iii
102008
IV PREFACE.
once evident in theory and practice. This importance is
not waning, but growing. Cases under it encumber the
dockets of our courts. Under these circumstances it oc-
curred to the author that a work issuing thirty-three years
after the adoption of that Amendment, giving decisions
upon it of the United States Supreme Court and other
national and state courts down to February, 1901, would
be of practical value.
The Fourteenth Amendment is, to a limited extent,
discussed in works upon general constitutional law; but
there is no work specially devoted to it and the decisions
construing and applying it. As its title will suggest, the
volume is not one covering the whole compass of constitu-
tional law. It is confined to the Fourteenth Amendment ;
but it incidentally touches kindred subjects, such as the
provisions of the national Constitution as to interstate
commerce, and against impairment of contracts by state
legislation. It deals only with the first and fifth sections
of the Amendment, as its other sections concern matters
having no relevancy to those of the first and fifth sections,
since those other sections concern representation in the
Congress, eligibility to office and public debts. But the
sections which are discussed embrace a wide and spacious
field. It includes Eights, Privileges, and Immunities of
Federal Citizenship, Naturalization, Life, Liberty, Prop
PREFACE. V
crty and Equal Protection of the Laws; Due Process of
Law; the relations and respective powers of the nation
and states under the Fourteenth Amendment ; the relative
functions of national and state courts; the force and
effect of state decisions in federal courts ; the jurisdiction
of the Supreme Court of the United States over the su-
preme courts of the states for the enforcement of that
Amendment ; the powers of federal courts over state courts
by removal of causes and habeas corpus to enforce the
Amendment; the effect of overruled state cases in federal
courts ; the powers of the states as to police, taxation and
eminent domain, as affected by the Fourteenth Amend-
ment, and the right of restraint by the nation over the
states therein : the restrictions that may be imposed upon
monopolies and trusts and combinations; the power to re-
strain by injunction strikes and boycotts, called "govern-
ment by injunction" ; the subject of exclusive charters
and grants by states and municipalities as fostering mo-
nopolies, and how far such charters and grants are con-
tracts inviolable; the rights of naturalization and expa-
triation; the power of the United States to acquire, hold
and govern foreign territory, and under what principles
such government must be whether "the constitution fol-
lows the flag" into such territory when acquired; and
many other incidental and cognate subjects.
VI PREFACE.
It is hoped, as it has been the author's intention, that
the letter and spirit of the book are broad and national,
wholly unsectional, inculcating in the breasts of the people
patriotic love and devotion to both the Union and the
States, teaching the just rights of both, and impressing
that the one can not exist without the others and accom-
plish the manifest destiny which our fathers foresaw, and
answer the grand behests of free republican government
Liberty under Law, Happiness, Peace, Progress, Civiliza-
tion and National Greatness.
In the preparation of the work I have received great
and valuable assistance from my son Edward A. Brannon.
HENRY BRANNON.
Weston, W. Va., February, 1901.
CONTENTS.
Page.
Introduction 1
CHAPTER I.
Fourteenth Amendment
CHAPTER II.
^Citizenship ............................................... 17
CHAPTER III.
Acquisition of Territory .................................... 35
CHAPTER IV.
Privileges and Immunities
CHAPTER V.
United States Supreme Court Decides Finally ................ 49
CHAPTER VI.
Privileges and Immunities. What Protected?,
CHAPTER VII.
Life. Liberty, Property, Equal Protection of Law 97
iiv
vni CONTENTS.
Page.
CHAPTER VIII.
Life 107
CHAPTER IX.
Liberty 109
CHAPTER X.
Property 118
CHAPTER XL
Due Process of Law 138
CHAPTER XII.
Police Power of States 167
CHAPTER XIII.
Judgment Without Service of Process 244
CHAPTER XIV.
Business Licenses 298
CHAPTER XV.
Taxation 302
CHAPTER XVI.
Equal Protection of the Law 315
CHAPTER XVII.
Relations of States and Nation . 331
CONTENTS. ix
Page.
CHAPTER XVIII.
State Decisions How Far They Control Federal Courts 395
CHAPTER XIX.
Federal Processes to Enforce Amendment 420
CHAPTER XX.
Habeas Corpus 432
CHAPTER XXI.
Congressional Intervention 449
CHAPTER XXII.
Eminent Domain 464
CHAPTER XXIII.
Government by Injunction 471
CHAPTER XXIV.
Interstate Commerce 475
INTRODUCTION.
N TO apology is needed for offering to the public a work
on The Fourteenth Amendment to the Constitution
of the United States, the most important of all the addi-
tions made to that great instrument. That amendment
speaks principles of free government of overruling import.
True, these principles are not new ; they are but the prin-
ciples of Magna Charta. They had already been incor-
porated into the constitutions of the states before the
advent of that amendment; and they had been put into
the federal Constitution by the Fifth Amendment; but
that amendment restrains the powers of the national
government only, and until the Fourteenth Amendment
came there was no power in the Nation to coerce the states
to grant and observe the rights of Magna Charta to their
people ; the states could grant or deny them. The supreme
importance of the Fourteenth Amendment thus lies in the
fact that it does compel the states to concede those rights,
else the national power can be invoked to coerce their con-
cession. The Fourteenth Amendment thus wrought won-
derful change in the governmental relations between states
and nation, we may say in the governmental fabric almost ;
it vastly increased the national .power over a large field,
and correspondingly decreased the sovereign or final power
1
2 INTRODUCTION.
of the states. It is this fact, not simply the principles
themselves of the amendment, that causes it to mark a new
era, a new departure, in American government. It can not
be too well understood or discussed. To show its vast prac-
tical importance we need only turn to the index head
"Constitutional Law" in the reports of federal and state
courts and see how those courts are burdened with cases
involving that amendment. More and more every year
that amendment is invoked in state courts, and more still
in federal courts, to challenge the action of state govern-
ments. The reports teem with cases upon it. The present
work treats of that amendment as it bears upon National
Citizenship, Naturalization, Privileges and Immunities
of Citizens of the Republic, Life, Liberty, Property, Equal
Protection of the Law as affected by unwarranted State
Action, Due Process of Law, Police Power, Taxation,
Eminent Domain, and kindred subjects. I have en-
deavored to refer to the main decisions upon the amend-
ment, state and federal, particularly those of the Supreme
Court of the United States, as its jurisdiction is final in
such cases. It will be seen that much of the work is
literal quotation from the opinions of the courts. I have
purposely adopted this course, preferring to give the de-
liverances of the courts themselves in their own words,
rather than a construction or version of my own.
The following pages will fully sustain the statement
that the Fourteenth Amendment has vastly widened the
powers of the Nation over the States. It has "centralized"
the government, to use the expression of those who, in the
formation of the Constitution and in the many and con-
tinuous subsequent contestations upon its construction, op-
INTRODUCTION. 5
ta i The only question is, or was, whether their concession
should be left to the states ultimately and finally, or their
guaranty and vindication be left ultimately and finally
to the nation, as under the Fourteenth Amendment. That
question is not before us ; the adoption of that amendment
has relegated that question to the past. The amendment is
here. It has been with us for thirty-two years ; a genera-
tion has not seen it mar the harmony of the nation and
the states. The Supreme Court has applied it with such
even, impartial and temperate hand, between States and
Xation, that no collision has occurred. May it be ever
so. The states are not aliens and enemies of the nation;
the nation not alien and enemy of the states. We are
all one in the procession of time and progress. What
matters it by which government the powers of administra-
tion happen in distribution to be exercised, so they are
administered "by the people, through the people and for
the people ?"
RIGHTS AND PRIVILEGES UNDER THE
FOURTEENTH AMENDMENT.
Chapter I.
FOURTEENTH AMENDMENT.
"SECTION 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the state wherein
they reside. Xo state shall make or enforce any law
which shall abridge the privileges or immunities of cit-
izens of the United States, nor shall any State deprive
any person of life, liberty or property, without due
process of law, nor deny to any person within its juris- ^
diction the equal protection of the laws."
"SECTION 5. The Congress shall have power to enforce,
by appropriate legislation, the provisions of this article."
We can not conceive of principles of constitutional law
more important and grave, especially as part of the Con-
stitution of the United States, than those embodied in the
above sections of- its Fourteenth Amendment, both because
7
8 RIGHTS AND PRIVILEGES UNDER
they are a direct guaranty and assurance by the federal
government of the greatest rights to citizens and persons,
and because they deeply concern the relation of the na-
tion to the states, and may produce the most perilous
conflict and clash between them. These principles are
in themselves old, dating from Magna Charta, granted by
King John in 1215, and found in all the American state
constitutions; but it was left to the states to vindicate
them -the states were supreme as to them and never,
until the 28th of July, 1868, when this amendment went
into force, did the federal government undertake the
guaranty of the rights contained in it. True, the Fifth
Amendment does say that no person shall a be deprived
of life, liberty or property without due process of law";
but this operates only on the national government, not
on the states. It is exclusively the Magna Charta re-
straining the federal government. 1
Whether we test the matter by the rigid construction
of the federal constitution given it by that school claim-
ing the largest right for the states, or by the school giving
a more liberal construction in favor of the federal gov-
ernment, or even of a third class, which may be called
the school of latitudinarians, in favor of the power of the
federal government; whether we follow Calhoun, Mad-
ison, Jefferson, Stephens and Davis, or Washington, Ham-
ilton, Story, Marshall, Kent and Webster, the United
States possessed no such power of restraint upon the gov-
ernmental action of the States as that conferred by the
Fourteenth Amendment. We can not say that it is an
i Spies v. Illinois, 123 U. S. 166.
TEE FOURTEENTH AMENDMENT. 9
invasion 2 of the rights of the States, because it was
adopted by them; but a change, a vast innovation upon
the former law, it plainly is. As Justice Swayne said
in the Slaughter House Cases, 3 it "trenches directly upon
the power of the states, and deeply affects those bodies."
We can not under it ask the question, Where is the divid-
ing line between state and national power? as in other
cases we may; for there is no dividing line. The ques-
tion in a case is, Has the State gone beyond its powers?
Has it deprived one of privilege, immunity, life, liberty
or property without due process, or deprived him of the
equal protection of the laws ? Has it withheld from him
what its own law properly applied would assure to him?
The rights thus guaranteed by the national government
are obviously just rights, those which ought to be ac-
corded by every free government, and can not be too
firmly secured. All admitted this when the amendment
was being debated ; but the question at issue was whether
the guaranty should be left exclusively to the states or
to the nation also. The proposition of its adoption elic-
ited great acrimony and difference of opinion as to its
necessity and expediency. Mr. Pomeroy, writing while
it was in debate, considered it the most important of all
the amendments, except only the Thirteenth. He said:
"It would give the nation complete power to protect its
citizens against local injustice and oppression, a power
which it does not now adequately possess, but which, be-
yond all doubt, should be conferred upon it. Nor would
it interfere with any of the rights, privileges and func-
2 Ex parte Va. 100 U. S. 346.
a 16 Wall. 125.
10 RIGHTS AND PRIVILEGES UNDER
tions which . properly belong to the states." He thought
that, as the Constitution had from its origin prohibited
the states from passing attainders, ex post facto laws and
laws impairing the obligations of contracts, it was strange
it had omitted to protect, from its beginning, life, liberty
and property against adverse state action by the require-
ment of due process.
In the view of many of its advocates this amendment
may be appropriately called, not Magna Charta, but Max-
ima Charta, since it not only guarantees great cardinal
rights essential to life, liberty, property and happiness,
but gives their ample defense into the hands of the Great
Kepublic wherever assailed, and thus enables the Amer-
ican citizen when in peril to say "I am an American cit-
izen" as the segis of his safety, just as Cicero said a
Roman citizen might save himself anywhere within the
bounds of the Roman Republic or its colonies or depen-
dencies by the plea "Sum Romanus civis"
In the discussion of this amendment it was argued that
the fundamental rights protected by it ought to be de-
fended in one state as in another throughout the repub-
lic, and that the republic should possess this corrective,
defensive power. On the other side, it was argued that if
a state is a government with any sovereign rights it should
have power to pass finally upon even the life, liberty and
property of its citizens, else it would be practically no
government with such essential powers lopped off. The
early amendments betray a fear then existing of inordi-
nate power in the nation. This one evinces the opposite
fear, that of too little power in the Nation and the vio-
lation of the rights of person by the states. The oppo-
TUB FOURTEENTH AMENDMENT. H
nents of this amendment contended that it was a danger-
ous enlargement of national power and limitation of
state power in most vital respects ; that it would be wrong
to commit to the federal government, in addition to the
power which it already had to restrain the states from
passing attainders, ex post facto laws or laws impairing
the obligations of contracts, the further extension of
power to restrain the states in the many additional func-
tions as proposed in the amendment; that it proposed
federal jurisdiction in most vital matters theretofore
left with the states bore on their action as to privileges,
immunities, life, liberty, property and equality before
the law, detracted from the sovereignty and dignity of the
states, subordinated them to the federal government in
a vastly wider field than before, centralized the federal
power, giving it a chart of power whose domain, under
liberal or free interpretation, could not be even surmised
in advance. They said that it did not follow that because
the power had been given to restrain the states from at-
tainders, ex post facto laws and the impairment of con-
tracts, it was necessary to deprive the states of the right
in their administration of government to pass final judg-
ment upon the rights of their citizens and give super-
vision of such matters to the nation. The actual enlarge-
ment of federal control given by this amendment by even
conservative construction is unquestionably great. 4 When
w- reflect how large a part of state governmental action
bears upon privileges, immunities, life, liberty, property
and equality before the law, and add the prohibition
* Reno on Non-Residence, 237.
12 RIGHTS AND PRIVILEGES UNDER
against attainders, ex post facto laws and laws impairing
the obligation of contracts, in all of which the federal
government has now a final voice, we see how large a part
of state administration is committed, in the last resort, to
federal control and supervision. Many cases in federal
and state courts will attest this. The extension of fed-
eral jurisdiction which has been claimed under this
amendment, and will continue to be claimed, is shown by
Justice Miller in Davidson v. ^ew Orleans, saying that
the Fifth Amendment, restraining federal authority with-
out due process, though nearly a century old, had scarcely
ever been invoked in the federal courts, whereas the
Fourteenth Amendment had filled the docket of the Su-
preme Court with cases seeking in that court to overthrow
judgments and legislation of states, and that there ex-
isted a a strange misconception of the scope" of the amend-
ment, and that it seemed that every unsuccessful litigant
in a state court had appealed to it to bring his abstract
opinions of the justice of state decisions and legislation
before the Supreme Court. He condemned such a con-
struction of the amendment, it is true, but his remarks
show the latitudinous construction placed by many upon
this amendment. 5 "The Fourteenth Amendment did not
radically change the whole theory of the relations of the
state and federal governments to each other and of both
governments to the people," said Fuller, Ch. J. 6
Any discussion of the expediency of the adoption of
the Fourtenth Amendment is now irrelevant, because a
dead issue. The amendment is a part of the Constitu-
596 U. S. 97.
e/n re Kemler, 136 U. S. 436.
THE FOURTEENTH AMENDMENT. 13
tion. Though its principles are antagonistic to the opin-
ions of men of all shades of opinion who took part in the
formation of the original Constitution, it has likely come
to stay. Whether the change shall prove a blessing or a
misfortune; whether it shall operate, as it was intended,
to further assure the essential and imprescriptible rights
of the citizen, or be the source of friction and clash be-
tween nation and states, which will mar the harmony
of our wise dual system of government, remains for the
future to reveal. Large responsibility here rests with the
federal government, particularly its judiciary. So far,
that exalted and impartial tribunal, the Supreme Court
of the United States, has so temperately construed and
applied the amendment that no bane has resulted from it.
The claim for excess of federal intervention has hitherto
been defeated by the ability and moderation of that il-
lustrious court; but what dangers may lurk within the
amendment and find success in changing time and cir-
cumstances we can not now foresee. Still, we may rea-
sonably say that the great precedents and bounds already
set by that court will reduce these dangers to a minimum.
The author humbly ventures to say that for the harmony
of the Union, The Ship of State, with which go "our
hearts, our hopes, our prayers, our tears, our faith trium-
phant o'er our fears," the federal judiciary should use
this grant of power with caution and prudence, resolving
all doubt that is reasonable in favor of the validity of
state action.
The past has brought no harm from it, but, in the lan-
guage of Cicero, "Tempora mutantur et mutamus in illis."
Other presidents and judges will come to sit in the chairs.
14 RIGHTS AND PRIVILEGES UNDER
Every patriot will trust that this amendment will not,
like Dead Sea fruit, turn to bitter ashes on the lips, or
be the box of Pandora, giving forth innumerable serpents
to sting ; but that, it may be a cornucopia of freedom and
peace, pouring out in plenty the just rights of the citi-
zen, as well as the stranger within our gates, for it comes
with its benison to that stranger as well as to the citizen.
The box of mythology contained Hope.
The Fourteenth Amendment is the child of the great
Civil War, which desolated our land from April, 1861, to
April, 1865. That war and the Thirteenth Amendment
abolished chattel human slavery centuries old, existing in
fifteen states at its opening. It set free four millions of
slaves. It was feared that they would, from the preju-
dices of the past, be denied by those states their legal
rights. The amendment was designed to vest a power in
the nation to guarantee those rights when denied by the
states. This was the immediate occasion of the birth of
the Fourteenth Amendment; but its language is broad,
applying to all citizens and persons, "without regard to
race, color or nationality." 7 In the Slaughter House
Cases 8 it is said that as the main purpose of Amendments
Thirteen, Fourteen and Fifteen was the freedom of the
African race and protection and security of its rights,
that fact should be kept in view in their construction.
We do not see how this consideration can expand or re-
strict the application or elucidate the meaning of Amend-
ment Fourteen as a charter applying to all alike, a cit-
adel of safety for the rights of all for all time. That
7Yick Wo v. Hopkins, 118 U. S. 356.
s 16 Wall. 36.
THE FOURTEENTH AMENDMENT. J5
great case opened the judicial construction of these last
three amendments, and the several able opinions in it
serve to illuminate them. We can not help feeling that
the decision of the majority was born of a commendable
disposition not to give too wide a construction of the
powers of the federal government under this amendment.
The amendment is before us. The only question is its
construction. Turning now to its first section, let us take
up its specific provisions.
WHAT DOES THE AMENDMENT DO?
It is plain from its language that it is only a restraint
on state power, except that feature relating to citizenship.
It creates and originates nothing new, except power in the
federal government to restrain state action. It creates
no new privileges or immunities of citizens, no new right
of life, liberty or property, no new process of law. It
only guarantees rights pre-existing, or those which law,
national or state, may after its date confer. 9
IT DOES NOT DEFINE.
The amendment confers citizenship on certain persons,
but does not define citizenship, its rights, privileges and
immunities. It defends the citizen or person against
state governmental action, abridging privileges or immu-
nities, or depriving him of life, liberty or property with-
out due process, or denying him equal protection of the
In re Kemler, 136 U. S. 436: Minor v. Happerset, 21 Wall, 1G2;
Hurtado v. California, 110 U. S. 537.
16 RIGHTS AND PRIVILEGES UNDER
laws; but it does not define privileges, immunities, life,
liberty, due process or equality before the law. It is defi-
nite, but not definitive. We have to look elsewhere to
the general law of the land to obtain definitions of all
these things. 10 It is not within the field or design of this
work to give these definitions. Many other works cover
that field. The purpose of this volume is not to say to
what cases Section 1 of Amendment Fourteen applies,
either by specification or the attempt at formulation of
general rules, but to outline the general mission of that
section, so far as illustrated as yet by authoritative de-
cision. It is the author's design not to make the volume
large; but as many of the authorities to be referred to
are not accessible in many places, he will feel justified in
making copious extracts from decisions, which may en-
large the volume beyond his present expectations.
10 U. S. v. Wong Kim Ark, 169 U. S. 86.
TUti FOURTEENTH AMENDMENT. 17
Chapter 2.
CITIZENSHIP.
Before this amendment it was contended by Mr. Cal-
houn and many other able men who were the advocates of
the sovereignty of the states, that there was no federal
citizenship in se; that the Constitution had not conferred
of its own force any federal citizenship, and that it was
only where a person was a citizen of a state, under its
laws, that he became from that fact alone a citizen of the
Union. It seems, however, reasonably clear that this
was not so. Naturalized persons were surely citizens
of the Union by reason of naturalization under the federal
statute enacted in pursuance of the provision of the Con-
stitution giving Congress power to pass uniform natu-
ralization laws, and white persons born within the terri-
tory and allegiance of the Union were surely its citizens 1
by reason of the common law doctrine that "natural born
subjects are such as are born within the dominion of the
Crown of England, that is, within the ligeance, or as it
is generally called, the allegiance of the king, and aliens
such as are born out of it. Allegiance is the tie, or
lifjamen, which binds the subject to the king in return
for that protection which the king affords the subject"
il Bl. Com. 366; Minor v. Happersett, 21 WalL 162, 1.!//; AT. 39
And as to the power of Congress to govern, Article IV,
Section 3, Clause 2, is all-sufficient. "The Congress shall
have power to dispose of and make all needful rules and
regulations respecting the territory and other property of
the United States." This plainly contemplated further
acquisition of territory, and gave Congress full power
of government over the same. This full power of Con-
gress to govern territory results not only from this clause
of the Constitution, but is abundantly sustained by de-
cisions. 13 But such government must be tempered with
the guards and protection of personal liberty found in
the federal Constitution. 14 Some additional cases are
given in the footnote for reference. 15
The treaty of Paris between the United States and
Spain, closing the Spanish- American War, provides that
all persons born in the Spanish peninsula, that is, in Spain,
resident in the Philippine Islands and Puerto Rico, who
should elect to continue to reside in those islands, after a
certain time should be deemed citizens of the United States
and entitled to all the privileges and immunities of citi-
zens of .the United States ; but there is no such provision
as to the natives of those islands. They are left by the
treaty subject to the regulation of Congress. When Con-
gress shall organize a civil or territorial government
is Mormon Church v. U. S. 136 U. S. 1, 44; National Bank v.
County of Yankton, 101 U. S. 129, 133; Murphy v. Ramsay, 114
U. S. 14, 44; U. S. v. Gratiot, 14 Pet. 533; Cross v. Harrison, 16
How. 180; U. S. v. Kagama, 118 U. S. 380.
i* Thompson v. .Utah, 170 U. S. 343; American Pub. Co. v.
Fisher, 166 U. S. 464.
is Green v. Biddle, 8 Wheat. 1; Cope v. Cope, 137 U. S. 682;
Shively v. Bowlby, 152 U. S. 48 : U. S. v. Wong Kim Ark, 169 U. S.
705: I'.oyd v. Thayor. 143 U. S. 135: Wong Wing V. U. S. 163 U. S.
228: McAllister v. V. S., 141 U. S. 174.
40 RIGHTS AND PRIVILEGES UNDER
there, I should say that the act of 1850 16 would at once
extend over the territory covered by such organized govern-
ment, the Constitution and the laws of the United States.
I do not assert that while a state of insurrection and re-
bellion and war exists in those islands, the principles of
the Constitution prevail as in peace; but I do say that
when peace shall again reign there, the principles of Amer-
ican law for the protection of life, liberty and property
will reign there also.
It has been held that the Seventh Amendment, secur-
ing trial by jury in common-law cases where the value in
controversy is over twenty dollars, applies to the terri-
tories, as recognized by the Supreme Court in Black v.
Jackson, 17 citing Webster v. Reed. 18 In Reynolds v. U.
S. 19 it is stated that the Sixth Amendment to the federal
Constitution giving jury trial in criminal cases applies to
the territories. In another important case 20 the opinion
of the court say*: "Doubtless Congress, in legislating for
the territories, would be subject to those fundamental
limitations in favor of personal rights which are formu-
lated in the Constitution and its amendments ; but these
limitations would exist rather by inference and the general
spirit of the Constituton, from which Congress derives
all its powers, than by any express and direct application
of its provisions."
I should remark here that these rights of persons in the
territories, or in the unorganized territory, of the United
is Revised Stat. 1891.
i? 177 U. S. 363.
is Webster v. Reed, 1 1 How. 437.
i Reynolds v. U. S. 98 U. S. 54.
20 Mormon Church v. V. S. 136 U. S. 1, 44.
THE FOURTEENTH AMENDMENT. 41
States, arise from the Sixth and Seventh Amendments,
not from the Fourteenth Amendment, because the former
amendments bind the nation, while the latter binds only
the states; still, as the subject is one of due process of
law for the security of personal right, it is germane to
the character of this work.
I have no doubt that the conquest of these islands, con-
summated and ratified by the international contract called
a treaty, did convert these islands from foreign countries
to non-foreign countries, and did incorporate them into
the territory, nationality and jurisdiction of the United
States, so as to make them a part of its territory and
within its jurisdiction; but they were not like Virginia,
original states or republics, and did not, like her, entei;
into the Union, and did not, like Missouri, enter that
Union by congressional admission. These are the only
processes by which a state can be a member of the Union.
Hence it is impossible to say that these possessions have
statehood; but thence it does not follow that they are
not a part of the domain and under the jurisdiction of the
nation ; for, if so, the treaty has no force. It has a legal
force ; that is, to incorporate those islands, not only into
the territorial domain of the United States as a nation,
but also into its nationality, its jurisdiction. "By the
ratification of the treaty California became a part of the
United States." 21 So with these islands. This puts them
under the power of Congress, which, under the Constitu-
tion, must give free government in form and substance
21 Cross v. Harrison, 16 How. 164, 191; Loughbrough v. Blake,
5 Wheat. 317.
42 RIGHTS AND PRIVILEGES UNDER
republican, because our Constitution knows no other in
peace. War is an exception. Inter arma silent leges.
In a case decided in May, 1900, 22 in the United States
Circuit Court of New York, is an able opinion by Judge
Townsend, coming to me since the above matter was writ-
ten, in w r hich the subject is fully discussed upon the ques-
tion whether the Dingley Tariff Act warrants the charge
of duties on imports from Puerto Rico. That act im-
poses tariff on articles "imported from foreign countries."
Is Puerto Rico, since the Paris treaty, a foreign country
so as to justify such charge? The court held that the
island was by the treaty "acquired," but not "incorpo-
rated" into the nation, and hence for this purpose was
still a "foreign" country. The reasoning does not seem
conclusive. Its basis is largely that of Fleming v. Page, 23
holding that goods from a Mexican port held by our forces
in war, but restored to Mexico by the treaty of peace, was
for the time land of the United States by conquest, a part
of its territory, and yet not so far as to exempt from tariff,
and if this is so, w r hy not the same as to Puerto Rico ? I
answer that one was transient occupation during war,
provisional at most; the other possession with legal title
under law of war and peace, forever. There is a differ-
ence. Congress seems to have taken a different view from
Judge Townsend's view, as it passed a temporary tariff
act for Puerto Rico. My view is that it is not a "foreign"
country under antecedent tariff law, and that to subject
it to tariff there must be an express act. Whether Con-
gress can constitutionally pass such act under its power
22 Goetze & Co. v. U. S. 103 Fed. 72.
239 How. 603.
THU FOURTEENTH AMENDMENT 43
to govern territories, or Puerto Eico being a part of the
nation, it is prohibited by the provision that "all duties,
imposts and excises shall be uniform throughout the
United States," is a question not yet decided. It seems
to me of doubtful constitutionality; but I venture no
final opinion. Judge Townsend, while rendering the above
decision, concedes the position above stated by me, that
the Constitution does give civil rights to these island-
ers, that it guarantees them republican government, and
that its people are not American citizens. They are not
subjects, as if we were a monarchy. Our Indians, though
not citizens, are not accounted subjects. A name exactly
representing their condition is not at hand. These island-
ers are people under our nationality and jurisdiction, sub-
ject to the government of Congress, which is limited only
by the obligation to secure them free republican govern-
ment and according them civil rights consistent there-
with.
Hawaiians can not be naturalized, because not white
persons, but Malayans. 24
But the treaty of annexation makes them citizens.
Burmese, being Mongolians, can not be naturalized. 25
Corporations are not citizens. 26 Though not citizens,
their property rights are protected as if they were persons.
They are treated as persons* for that purpose under the
Fifth and Fourteenth Amendments. 27 They are, how-
ever, citizens of the state of incorporation under clause
of Constitution authorizing a citizen of one state to sue a
24 Re Kenaka, 21 Pac. 993.
25 In re Po, 28 N. Y. 383.
20 Paul v. Virginia, 8 Wall. 168.
27Covington v. Sanford, 164 U. S. 578.
44 RIGHTS AND PRIVILEGES UNDER
citizen of another in the federal court, 28 and so far as
concerns removal of suits from state to federal courts. 29
A corporation of one state can not do business in another
state, except federal business, without the latter's con-
sent, at least, against its prohibition. It may impose con-
ditions. 30 But a natural person is entitled to do lawful
business in his own or another state without such consent,
by force of the federal Constitution under the commerce
clause, Article 1, Section 8, Clause 3, and Article 4, Sec-
tion 2.
28 R. R. Co. v. Whitton, 13 Wall. 270.
2 Martin v. B. & O. Co. 151 U. S. 673.
so St. Clair v. Cox, 106 U. S. 350; Slaughter's Case, 13 Grat. 767.
TED FOURTEENTH AMENDMENT. 45
Chapter 4.
PRIVILEGES AND IMMUNITIES.
We come now to provisions of the amendment of greater
importance and more difficult of application than that re-
lating to citizenship. We refer to the prohibition against
the states from abridging the privileges or immunities of
citizens, or depriving persons of life, liberty or property
without due process of law, or denying them equal protec-
tion of the laws. What is the meaning of Section 1 of
this great amendment as to those matters? This is a
difficult question to answer. In truth, no general exact
rule can, in advance, be drafted giving its meaning. It
would be extremely dangerous for a court to tie itself down
to an inflexible rule herein. The general purposes to be
subserved seem plain; but application of the provisions
to cases can not beforehand be pointed out by any stated
rule. Speaking of privileges and immunities the United
States Supreme Court has refused to define them in ad-
vance,! preferring to decide each case as it comes. 1 The
Supreme Court has further said that the construction of
these provisions must be "a gradual process of judicial
inclusion and exclusion," as time goes on.?
Conner v. Elliott, 18 How. 591.
2 Davidson v. X. Orleans, 96 U. S. 104.
46 RIGHTS AXD PRIVILEGES UNDER
Numerous cases under this amendment have blazed the
way to a considerable extent, but have not made a broad,
clear highway. Its construction is still, after thirty years,
in a chrysalis state, in process of evolution, and will long
continue to be. Courts may lay down some general prin-
ciples under it; but they will be only approximately ac-
curate, though very useful in future time. We must ap-
ply it to each case as it comes, guided, as far as can be,
by prior decisions.
To Whom it Applies. The amendment applies only to
state governmental action. Its first section does not oper=-
ate upon the federal government, but on that of the states
it does; nor does it have any reference to action or con-
duct of individual to individual. 3 That it is a restraint
upon state action is very obvious from its words, they
being words of explicit prohibition. "jSTo state shall"
do the things prohibited. And Section 5 gives Congress
power to enforce the amendment by appropriate legisla-
tion. And the Constitution of the United States is the
highest law of the land. Thus it is undeniable that the
federal government can and should, under this amend-
ment, in proper cases, use all its machinery for the vin-
dication of the rights by it sought to be protected.
Authorities to Enforce Amendment. It is the duty of
the courts and other agencies of state administration to
recognize and concede the rights intended to be protected
by the amendment, in the first instance, in transactions
presented for their action, without waiting for interven-
tion by federal courts, the federal Constitution being the
3 Civil Rights Cases, 109 U. S. 23; Paul v. Va. 8 Wall. 168; Va.
v. Rives, 100 U. S. 318; U. S. v. Cruikshanks, 02 U. S. 542, 95
Fed. 849.
THE FOURTEENTH AMENDMENT. 47
highest law ruling state and federal tribunals. It is
prohibitory upon the states to deny those rights, and there-
fore it is plainly the duty of the courts and other authori-
ties of the state to concede and vindicate such rights where
they exist. 4 The right to pass finally on .the question
whether the state has infracted the amendment lies with
the federal Supreme Court. 5
; No New Rights Granted. As elsewhere stated, the
amendment creates no rights not existing before it. It
originates none. It adds nothing to the catalogue of privi-
leges, immunities, rights of life, liberty or property, or
of equality before the law. It does not specify or define
any of them. It only defends those rights existing under
the law of the land, federal or state, and in being at its
adoption, or born of the law afterwards. This is an impor-
tant consideration in the construction and application of
the amendment. It brings nothing new. It adds no
privileges. The things it guarantees are old. It is only
Magna Charta over again. It only enjoins upon the
state, by the voice of the highest law, the duty of regarding
and conceding certain cardinal rights, and grants to the
national government the power to correct and reverse
their plain denial by the action of the state.
This is strongly illustrated by decisions holding that
the rights of suffrage and making a living by practicing
law are neither granted nor protected by the amendment. (i
What could more strongly show that the amendment gave
4 Xeal v. Delaware, 103 U. S. 370.
Tarble's Case, 13 Wall. 397; Cohens v. Va. 6 Wheat. 264; State
v. .^pouagle, 45 W. Va. 415, 32 S. E. 283.
Minor v. Happersett, 21 Wall. 162; In re Lockwood, 154 U. S.
116.
48 RIGHTS AND PRIVILEGES UNDER
no new rights than the principle settled by many cases that
"due process of law" means the same as the words "law
of the land" in old Magna Charta ? 7
7 Murray v. Hoboken, 18 How. 276.
THE FOUKTEESTH. AMENDMENT.
Chapter 5,
UNITED STATES SUPREME COUKT DECIDES
FINALLY.
The question naturally arises, Who is to say, finally,
whether given action of a state is violative of the Four-
teenth Amendment ? I answer, the Supreme Court of the
United States. Very soon after the adoption of the Con-
stitution arose the questions, Is it with the national or the
state judiciary to say whether the Union has exceeded its
powers, or whether a state statute is repugnant to the
federal Constitution ? Has the state or the nation right
to answer finally ? These great questions engendered an
intense, acrimonious discussion, involving vitally the rela-
tions of the national and state governments. No graver
questions could be put upon the subject. Chief-Justice
Marshall did not overdraw when he said, in Cohens v. Vir- 1
ginia, 1 that the fate of the Union hung upon the answer.
Very eminent contention was made, no less than resolu-
tions of the Kentucky and Virginia legislatures, called the
"Kentucky and Virginia Resolutions of 1798," that the
federal government had not right to pass conclusively
on the relative extent of federal and state power. The
Kentucky resolutions, written by Thomas Jefferson, in
i 6 Wheat. 377.
50 RIGHTS AND PRIVILEGES UNDER
terms said of the federal government that "this govern-
ment, created by this compact, was not made the exclusive
or final judge of the extent of the powers delegated to it-
self, since that would have made its discretion, not the
Constitution, the measure of its powers, but that, as in
all other cases of compact among parties having no com-
mon judge, each party has an equal right to judge for
itself, as well of infractions as of the mode and measure
of redress." A resolution of Kentucky in 1799 declared
that nullification by the states of unauthorized acts done
under color of the Constitution was the lawful and right-
ful remedy. The Virginia resolutions were practically the
same. Mr. Calhoun with great ability advocated this view
later. Even the great unionist, Andrew Jackson, in pri-
vate letters, wavered as to the final power of decision
of the nation.
The opponents of this contention appealed to the fact
that the Constitution gave the federal judiciary jurisdic-
ion of "all cases in law and equity arising under this Con-
stitution, the laws of the United States or treaties made,
or which shall be made, under their authority," and to the
provision, "This Constitution, and the laws of the United
States which shall be made in pursuance thereof, and all
treaties made, or which shall be made, under authority
of the United States, shall be the supreme law of the
land ; and the judges in every state shall be bound there-
by, anything in the constitution or laws of any state to the
contrary notwithstanding." They asked, "Who shall be
the final judge of its own powers but that government
whose constitution and laws are thus made supreme, and
whose courts are given jurisdiction of all cases arising
FOURTEENTH Alti;MJMi:.\T. 51
under them, of course, with power to decide?" They said
that there must be a final arbiter in dispute, else chaos,
red war and disunion would reign, and that reason for-
bade the idea that there should be as many conflicting ar-
biters as there were states, and demanded that there be
one final judge, and that the national supreme court;
otherwise the Constitution would be one thing in one
state, another in another. "Thirteen independent courts
of final jurisdiction over the same causes, arising upon
the same laws, is a hydra in government from which
nothing but contradiction and confusion can proceed, 1 '
said an eminent statesman. The latter theory carried the
day. It received support from many able sources, notably
from Alexander Hamilton in that wonderful work,
"The Federalist," which, as Mr. William L. Wilson
says in his work, "The National Democratic Party,"
page 25, "was written chiefly by two young statesmen,
one of Xew York (Hamilton), the other of Virginia
(Madison), to -explain and commend to their contem-
poraries in that great struggle, the new plan of gov-
ernment, but remaining today, and doubtless destined to
ren. inn for all time, the most instructive commentary on
the federal Constitution." The doctrine was also most
ably supported by the great opinion by Chief -Justice Mar-
shall in Cohen v. Virginia. 2 This right of the national
court to pass final judgment in the case supposed above
has come to be settled doctrine from many cases. 3 Let
2 6 Wheat. 264.
sAbleman v. Booth, 21 How. 506; Tarble's Case, 13 Wall. 397;
State v. Hunt, 2 Hill (S. C.) 1; In re Spangler, 11 Mich. 299;
State v. Sponagle, 45 W. Va. 415: Laughlin v. La. Ice Co. 35 La.
Ann. 1184: Klliot v. McC'ornm-k. 144 Mass. 10.
52 RIGHTS AND PRIVILEGES UNDER
men differ as they may upon the abstract merits of the
question, our political and legal history will attest that
the course of time, from many causes, has, since the foun-
dation of the government, given a trend towards large
national power. Such has been the evolution of time and
events. The great Civil War has set the final seal upon
this great question so much debated through so many
years. If such was the solution of that debate on the ros-
trum and in the forum upon the Constitution as it was
before the Fourteenth Amendment came, it is plainer still
that it is exclusively with the supreme court of the nation
to say, finally and decisively, whether given action of a
state violates that amendment, since its adoption; for it
is not only prohibitory upon the states, saying that the
states shall not do certain things, but its fifth section
gives Congress express power to enforce the amendment by
appropriate legislation. It being a part of the Constitu-
tion, all rights protected under it are questions arising
"under this Constitution," and come within the pale of
jurisdiction of federal courts under Section 2, Article 3.
"State Rights." This short historical reference to the
great questions of the past will serve to show that the ex-
pression "state rights," though still much used, is not in
our day what it was many years ago. In those years it
meant, in short, that as the states before the formation
of the Constitution were sovereign, as such they formed
it, not losing thereby that sovereignty, and the Union
under the Constitution was not in strict sense a nation,
but still, as under the Articles of Confederation, a mere
compact or confederation of states, though with some
greater powers, and that the states possessed the power,
THE FOURTEENTH AMENDMENT. 53
without secession from the Union, for causes to them seem-
ing sufficient, to ignore and nullify federal laws, or with-
draw from the Union, and altogether cease their federal
relation, cease to perform their functions as component
members of the Union. This was not justified on the
right of revolution, which all people have, if based on
just cause, but on a power claimed as inherent in the states,
which might be of right exercised, and could not be of
right resisted by the Union or any of its members. Un-
der this claim of right, a claim made by the great ma-
jority of the people of the slave-holding states, eleven of
them withdrew from the Union in 1861, and then came
the Civil War. The other view in those days was that
of inter-independence or co-independence between states
and Union, and conceded to the states their sovereignty
within their sphere under the Constitution, and the sov-
ereignty of the Union within its sphere under the Con-
stitution, and in case of dispute as to their respective
powers the Union was to be the final judge. Such is now
the doctrine held by the supreme court, as laid down in
Tarble's Case 4 and many prior cases, and generally con-
ceded.
Xowadays "state rights" merely indicates a principle
of construction of the federal Constitution as to the re-
spective powers of state and nation, and does not claim
the right of nullification or secession, but admits the pow-
ers of the federal government plainly granted in the Con-
stitution, and also such powers, though not expressly there
granted, as are plainly indispensable to enable the nation
to execute the powers that are expressly granted; that
* 13 Wall. 307.
54 RIGHTS AND PRIVILEGED LXDER
no power in the nation can be exercised unless granted
in very letter, not by mere construction, and that no
power claimed as a power by implication to execute a
conceded express power can be allowed unless it be abso-
lutely essential to carry out an expressly granted power,
so essential that without it such expressly granted power
could not be executed by the nation ; and that where there
is doubt it must be resolved in favor of the state, and the
power denied to the nation. It is now merely a differ-
ence between a literal and rigid construction of the Con-
stitution, and a liberal one as to the powers of the federal
government. Constitutional state rights nobody denies,
nor does anybody deny constitutional federal rights; the
only difference is in the ascertainment of what are con-
stitutional state rights and what are constitutional na-
tional rights. So long as we preserve our dual system of
government both must be scrupulously observed, and as
the final decision is with the federal supreme court, we
see how important and grave are its functions. The fate
of the Union must hang upon it.
Amendment Retroactive and Self-Enforcing A state
statute or constitution not repugnant to any constitutional
provision of the nation when made is nevertheless annulled
by the amendment, if it conflicts with it; for no pro-
ceeding can take place under the state constitution or
statute if its effect is to deprive anyone of a right se-
cured by that amendment. 1
It needs no legislation to nullify a state law contrary
to the Fourteenth Amendment, but it by its own force
i Kaukanna v. Green Bay, 142 U. S. 254; Davis v. Burke, 179 I . S.
399, 21 Sup. Ct. 210.
THU FOURTEENTH AMEXDME\T. 55
iiulliiies the state law. 2 "A constitutional provision is
self -operative where no legislation is necessary or could
add to or take from it." 3
First Ten Amendments. It was earnestly contended in
u late case that though it had been often held that the first
ten amendments to the federal Constitution bound only
the federal government, and not state action, and did not
confer rights and privileges which from those amendments
the states were bound to concede, yet that the very adop-
tion of the Fourteenth Amendment changed all this, and
made those amendments obligatory on the states ; but the
court took the other view, and held that it did not make
those amendments operate on the states. Justice Harlan
in a labored dissent held that because Amendment Six
guaranteed a trial by jury, meaning a jury of twelve, a
state could not by its constitution make the jury consist of
less, and this because, as he thought, the amendment ope-
rated to make those amendments act on the states. 4
2 Xeal v. Delaware, 103 U. S. 370.
s State v. Caldwell, 69 Am. St. R. 465.
* Spies v. Illinois, 123 U. S. 131 ; Bolln v. Nebraska, 176 U. S. 83.
56 RIGHTS AND PRIVILEGED UXDtiH-
Chaptcr 6.
PKIVILEGES AND IMMUNITIES. WHAT PKO-
TECTED ?
Not those that pertain to state citizenship. They must
look to state constitutions and laws for protection ; for the
Fourteenth Amendment says that "No state shall make or
enforce any law which shall abridge the privileges or im-
munities of citizens of the United States/ 7 thus limiting
the protection to privileges and immunities of United
States citizenship. As elsewhere stated, there is state cit-
izenship, there is national citizenship. There are privi-
leges and immunities flowing from state citizenship, con
sidered separately from national citizenship, and privi-
leges and immunities flowing from national citizenship
They are different., 4 The amendment, having created na-
tional citizenship, next defends it against abridgment by
the states; but it has not assumed the defense of those
privileges and immunities attending upon state citizen-
ship alone. 5
"There is in our political system a government of each
*U. S. v. Cruikshanks, 92 U. S. 542; Duncan v. Missouri, 152
Id., 377.
s Slaughter House Cases, 16 Wall. 36; Holden v. Hardy, 169
U. S. 366, 25 Am. St. R. 871; Bradwell v. U. S. 16 Wall. 130; U. S.
v. Cruikshank, 92 U. S. 552.
THE FOURTEENTH AM t:\DUEXT. 57
of the several states and a government of the United States.
Each is distinct from the other and has citizens of its own,
who owe it allegiance and whose rights, within its juris-
diction, it must protect. The same person may be at the
same time a citizen of the United States and a citizen of
a state; but his right of citizenship under one of these
governments will be different from those he has under the
other." "Sovereignty for the protection of rights of life
and personal liberty within the states rests alone with the
states." So says the Supreme Court in U. S. v. Cruik-
shank. 6
The privileges and immunities of a state citizen derived
from state law must, under this particular clause, be pro-
tected by the state. That citizen must look alone to the
state. The privileges and immunities of a national citi-
zen derived from national law must be conceded and pro-
tected by the state just as much as if derived from its own
laws, and if not so protected and enforced, that citizen can
invoke the aid of the federal government. I said "under
this particular clause ;" for rights of a state citizen given
by state law, if rights of life, liberty or property or equal-
ity before the law, must be protected by the nation if de-
nied by the states, because of later clauses in the amend-
ment.
Different Clauses. It must be observed that it is often
difficult to say certainly whether the thing claimed is a
"privilege or immunity," falling under the clause protect-
ing them, or concerns life, liberty, property or equality
before the law, under the later clauses. Some rights may
fall under more than one clause, or would if there were
92 u. S. 542.
58 RIGHTS AND PRIVILEGES UNDER
not the several clauses. It may be important to discrim-
inate, for if the right claimed be merely and only a "priv-
ilege or immunity/'' properly so called, it must rely only on
the clause relating to them, which is narrower than the sub-
sequent clauses; for it protects only '"privileges and im-
munities of citizens of the United States'' ; whereas as
to life, liberty or property, it protects "any person/' and
as to equal protection of the law, it protects "any person
within its jurisdiction," no matter whether a citizen of the
nation or state, or no citizen of either. This is a point of
vital import in the construction of the amendment, because
if the distinction between national and state citizenship
is not preserved, every claim or pretense that a citizen
has been deprived of a privilege would call for federal
interference. Otherwise that interference is limited to
cases of abridgment of privileges as a national citizen. 7
Privileges Protected Further. It might be thought at
first blush that the intention was to protect the national
citizen against abridgment of any of. his rights, state or
national. . Suppose a person who is both a state and na-
tional citizen, and suppose that a privilege vested in him
by state law is abridged by state law; it might be said
that it was the purpose of the amendment to place all of
his privileges and immunities under the panoply of its
protection ; and this because he is a citizen of the repub-
lic, domiciled within the territory of the nation, and be-
cause the language is general, "no state shall make or en-
force any law which shall agridge the privileges or im-
munities of citizens of the United States" ; but authori-
ties hold that this person can not call upon the federal
t Slaughter House Cases, 10 Wall. 75.
THE FOURTEENTH AMEN DM EM. 59
government for help. This is because the amendment ere-
ates two citizenships in terms, and limits protection to
"privileges or immunities of citizens of the United States."
It recognizes hoth nation and state as governments, separ-
ate governments, each possessed of sovereign power within
its sphere, and it leaves to the state alone the protection,
within its territory, of the privileges conferred upon its
citizens by its laws. If the erroneous construction spoken
of above were held, a state could hardly be said to have any
attribute of sovereignty or finality of decision; for when
we grant, as we must, the power of the Union to see that no
person shall be deprived of life, liberty or property with-
out due process, nor be denied the equal protection of the
law, and then add that all privileges and immunities of
the citizen under both state and federal law are within
federal control, we make the nation supreme over a vast
expanse of governmental administration, leaving very little
for state supremacy or finality. The most ardent advo-
cates of state rights have always conceded certain powers
in the federal government as essential to the performance
of the functions assigned to it; and the most ardent ad-
vocates of federal power have always conceded certain
powers in the states as essential to the performance of their
functions. This must be so just as long as the dual system
of federal and state government mapped out in the orig-
inal formation of the federal government shall continue;
otherwise revolution, not by arms, but by the silent yet
potent force of judicial construction would ensue. Equi-
poise must be kept by cautious construction by that great
court at Washington. Xo court on earth's orb has greater
responsibility placed upon it. Our blessed government
60 RIGHTS AND PRIVILEGES UNDER
was intended to have eternity. Its life depends on that
court. Under guidance of Providence its ermine remains
pure. Growth of population, growth of individual and
corporate wealth, growth of power under the late amend-
ments, the allurements of modernism, many influences,
have all been powerless to swerve that court from its orbit.
If in any decision in times gone by it did lose its orbit on
mighty questions, and likely it did in one instance, it can
not be said but that its record of the last forty years shows
that its eye has been fixed on the pole star of sound, con-
servative construction of the Constitution, preserving the
equipoise between states and nation, and maintaining the
the just rights of citizen or person. Clamor has risen loud
and high against it occasionally; but time and reflection
have hushed that clamor to sleep. "Change and decay
011 all around we see," but the Supreme Court has not
known change or decay. Esto sacra. Procul profanum
vulgus. An appeal to the great number of cases decided
by it involving the recent amendments to the Constitution
will warrant this eulogy. Webster said that without this
court the Constitution would be no constitution; the
Government no government.
In this connection, speaking of the rejection of the con-
struction placing all immunitites and privileges, whether
under state or federal law, under this amendment, it may
be appropriate to refer to the case of Logan v. United
States. 8 It may be said that when that case held that a
prisoner in the hands of a federal marshal under federal
process had right to be protected by the United States
from mob violence, so that those assaulting his person
s 144 U. S. 263.
TUB FOURTEENTH AMENDMENT. Ql
were indictable under federal statute against conspiracy to
"injure, oppress, threaten or intimidate any citizen in
the free exercise and enjoyment of any right or privilege
secured to him by the Constitution or laws of the United
States", the court ranked as a privilege or immunity
under the amendment the right to be secure from mere as-
sault, battery and murder by individuals, and thus as-
sumed for the federal courts jurisdiction to punish acts
cognizable in state courts committed by individuals, when
the amendment only restrained state action, not at all mere
individual action; but the court disclaimed any right to
jurisdiction under the amendment. The case is only im-
portant here as to that point. It is noted for that point.
The court said that a citizen in custody had right under
the Constitution and laws of the United States to be pro-
tected from lawless violence, as the Constitution impliedly
grants power to punish offences against the United States.
There may be question whether this right of safety is a
"right or privilege" under the Constitution or laws of
the United States, rather than under state law; whether
that right to protection against personal violence does not
inhere in the individual as a person, not as a citizen, and
whether in custody under process or not, and so to be pro-
tected by the state ; and whether the culprits were indict-
able under federal law only for resisting or obstructing
lawful process, and not for invading a privilege of a nation-
al citizen as such. Clearly the statute is defensible under
the amendment to prohibit an invasion of a privilege of
a citizen of the United States ; but the quaere is whether
personal violence to a prisoner in custody under federal
process is any more an attack on a privilege or right of a
Q2 RIGHTS AND PRIVILEGES UNDER
federal citizen than an attack on a privilege of a state
citizen in custody under state process, or not in custody.
Be this as it may, it is important to say that the case must
not be cited to show that the court exended the Fourteenth
Amendment to the occurrence involved in the case.
The Need of the Privilege Clause. I concur with Judge
Cooley in his Principles of the Constitutional Law, in the
opinion that this clause of the amendment is not essential,
since state action, if it were not in the amendment, could
not abridge a privilege or immunity resting on national
right. The clause is only declaratory of antecedent law.
We may say that the provision emphasizes pre-existing
law, imbedding it in the Constitution forever, not leaving
it to mere implication and court decision. It should be
added, too, that the amendment expressly vests in Congress
power of legislation to protect federal privileges and im-
munities. Before that amendment, as Chief -Justice Taney
said, there was no express power in the nation to enforce
such right if denied by the state, and this amendment does
in words confer the power ; but I apprehend that a power
to protect federal privilege or immunity would, without
the amendment, reside in the federal judiciary, and likely
in Congress.
Privileges Protected Further. The Fourteenth Amend
ment does not protect privileges and immunities of citi-
zens of the United States against assault from the national
government. Nor does it protect privileges and immuni-
ties vested in a citizen of one state by reason of his citi-
zenship therein against another state's action, as this is
done by Article 4, 2, "The citizens of each state shall
be entitled to all privileges and immunities of citizens of
THE FOURTEENTH AMENDMENT. 03
the several states". That provision is not discussed in this
work.
WHAT ARE PRIVILEGES AOT) IMMUNITIES?
Remember, as just stated, that we are speaking only of
"privileges and immunities" flowing from national citi-
zenship, not state citizenship.
No all-comprehensive classification can be made in ad-
vance. As was said by the Supreme Court 9 of these two
words used in Article 4, 2, must be also said of them as
found in Amendment Fourteen, that it is unwise to at-
tempt such classification, but each case must be decided
as it conies. At the start, it can be said that it is not every-
thing that can demand protection claiming to be a "privi-
lege or immunity". It must be something appertaining
to the citizen that is cardinal, basic, fundamental, belong-
ing to citizens of free governments. 10
The privilege or immunity protected is only that in-
herent in and flowing from the status of citizenship, is
inseparably connected with it, personal to the person,
non-assignable. 11 The words of Amendment Fourteen,
as those of Article 4, 2, show this to be so.
Each Clause has Separate Office. It would seem that this
privilege clause does not cover what the remaining clauses
cover, life, liberty, property and equality before the law,
because, though some would seem to fall under two clauses,
yet, in construction we would infer that each clause has
Collins v. Elliott, 18 How. 591; Davidson v. N. Orleans, 96
97.
i" Corfu-Id v. roryell, 4 Wash. C. C. 101.
11 Slaughter's Case. 13 Orat. 707: CYmuT v. Elliott, 18 How. 591.
64 RIGHTS AND PRIVILEGES UNDER
a separate office, and that it can not be presumed that sepa-
rate clauses of one enactment, especially a sedate enact-
ment by a constitution, apply to one and the same thing.
What are Privileges and Immunities? Xo fixed gen-
eral rule can be given ; no specification can embrace every
instance even now existing, and, of course, not those com-
ing in future time, and such rule or specification can only
be illustrative. We should add, what is an obvious prin-
ciple and important to be remembered, applicable to the
clause relative to privileges and immunities, and also
that relative to protection to life, liberty and property,
that the "privileges and immunities" protected are not
merely those existing when the amendment was adopted,
A/but also those to come in process of time. The Constitution
is to last forever as the organic law, the base on which
changes or additions built by time shall stand. Privileges
and immunities of the federal citizen may arise from new
legislation, so that legislation be within the scope of na-
tional authority. This shows the futility, the danger of
any infallible definition of "privileges or immunities"..
So also "due process of law" is ever changing in the growth
and mutable conditions of society. Process unknown in
law today becomes due process of law from the action of
the next legislature or the subsequent general practice
of the courts. We can not take from such an instrument
as a constitution capacity to meet the wants of coming
years by an inflexible definition, especially such a provision
as this amendment. Capacity for expansion must be al-
lowed, else the Constitution would defeat its own purpose
as the basic law. 12
"Holden v. Hardy, 169 U. S. 366, 389, Story on Const. 422.
FOURTEENTH AMEN DM EM'. QQ
\Ve must first take the plain meaning of the words
"privileges and immunities". Do those words include the
thing in question? "Privileges" is affirmative, positive;
"Immunities", negative ; the one meaning rights, the other
exemption from wrongs. Privileges, in general sense,
including both those under state and federal citizenship,
are those belonging to the citizen, not merely to a person,
and would include, for instances, the right to go and come
through all the territory under the jurisdiction of the
United States on .lawful business or pleasure ; to keep
and bear arms; to make contracts; to acquire, hold and
dispose of property; to sue and have admission to the
courts and the benefit of habeas corpus and other legal rem-
edies and the public records and books; to carry on law-
ful business ; to use the mails, railroads, telegraphs, tele-
phones, and other common carriers of the citizen's person,
goods, or intelligence; to use public highways and ease-
ments; to be exempt from unreasonable searches of his
domicile or premises, or seizure of his property ; to enjoy
light and air ; to marry and have family ; to seek happi-
ness and pleasure ; to worship God, and attend public wor-
ship of God and other public assemblages of the people;
to entertain what religious opinions conscience dictates,
and worship accordingly; to witness public demonstra-
tions; to attend theatres and other public amusements;
to eat and drink what he wishes; to obtain education in
letters, music, art, profession, science, mechanics, or the
like ; to attend the public schools, no matter by what name
known, common, graded or normal schools, academies,
r-'ll( -ires or universities; to go to foreign lands ; to peace-
ably assemble and confer upon religion, politics or busi-
66 RIGHTS AXD PRIVILEGES UXDER
ness; to write and express opinions upon public matters
of business or religion; to petition the government for
redress of grievances ; freedom of the press.
These privileges and immunities belong to the citizen
in free governments, but it rests with the government
to allow, abridge or deny them, unless the Constitution
stay its hand. Their enjoyment may be regulated or lost
or subtracted from, under the police power, or power of
taxation or eminent domain.
Privileges under Fourteenth Amendment Narrower. But
the general enumeration is broader than the Fourteenth
Amendment. The words "privileges and immunities" in
it do not embrace all rights above specified, for it concerns
only those of them attendant upon federal citizenship. As
to those the hands of the states are restrained by the amend-
ment, but as to those not flowing from federal citizenship
the nation assumes no protection, and they must depend
on state constitutions, laws and administration for allow-
ance and safety. 13
FEDEKAL PKIVILEGES AND IMMUNITIES PEO-
TECTED BY AMENDMENT.
They are those pertaining to the citizen of the nation
as such, derived from the federal Constitution, statute or
treaty, given or granted by the federal government. For
instances which may illustrate, the federal citizen may go
and come through all the territory under the jurisdiction
of the United States; he may go to the national capital
on business or pleasure; he may depart to go to foreign
"Slaughter House Cases, 16 Wall. 37, 37 L. R. A. 103.
THE* FOURTEENTH AMENDMENT. 67
lands; 14 he may make contracts with the federal govern-
ment, or with others where allowed by its laws, and ac-
quire from it property or copyright or patent for the in-
ventions and works of mind and hand ; he may sue in its
courts and have legal remedies and the benefit of its pub-
lic records and books and offices; he may reside in any
state; he may navigate public waters, however far they
may penetrate states ; he may carry on interstate or for-
eign commerce; 15 he may use the mails; he may by resi-
dence in a state become a citizen of that state, whether it
so will or not ; he may carry on interstate commerce free
from obstruction by state prohibition or taxation ; he may
be given federal office or employment, with or without the
state's consent, though the state may refuse its office to one
holding federal office ; he may exercise that office without
state obstruction ; he may assemble with others within a
state to confer upon federal politics or matters and express
and publish opinions thereon, and petition the federal gov-
ernment for redress of grievances ; J 6 he may have the ben-
efit in every respect of federal bankruptcy; he may de-
mand national protection on the high seas or in foreign
lands.
In any case where under national law the citizen of the
United States may do anything, or practice or enjoy any
right, it is a "privilege" under Amendment Fourteen, and
the right to be exempt from interference with, and denial
of, it by state law by prohibition, penalty, tax or other-
wise, is an "immunity" under the same. If the state law
14 Crandall v. Nevada, Wall. 35.
"Ward v. Maryland. 12 Wall. 418.
iT. S. v. Cruikshank, 02 V. S. 542.
68 RIGHTS AND PRIVILEGES UNDER
amounts to an abridgment of such privilege, it violates the
amendment.
These words, "privileges and immunities/ 7 are found in
Article 4, Sec. 2, declaring that the "citizens of each state
shall be entitled to all the privileges and immunities of
citizens of the several states," and in Corfield v. Coryell 17
Justice Washington gives them a definition frequently
quoted in textbooks and decisions, and it has been highly
extolled as approvable. He said that such privileges and
immunities could be "all comprehended under the follow-
ing general heads : Protection by the government, enjoy-
ment of life and liberty, with the right to acquire and
possess property of every kind, and to pursue and obtain
happiness and safety, subject, nevertheless, to such re-
straints as the government may prescribe for the general
good." 18
In short, as said in Logan v. United States, 19 "While
certain fundamental rights, recognized and declared, but
not created or granted, in some of the amendments, are
thereby guaranteed only against violation or abridgment
by the United States or the states, as the case may be, and
can not therefore be affirmatively enforced by Congress
against unlawful acts of individuals ; yet every right cre-
ated by, arising under or dependent upon the Constitu-
tion of the United States may be protected and enforced
by Congress by such means and in such manner as Con-
gress, in the exercise of the correlative duty of protection,
or of the legislative powers conferred upon it by the Con-
17 4 Wash. C. C. 380.
isMcCready's Case, 27 Grat. 985, 995; Cooley on Con. Lim. 15.
i 144 U. S. 293.
THE FOURTEENTH AMENDMENT. 69
stitution, may in its discretion deem most eligible and best
adapted to attain their object." Hence a citizen in the
custody of the marshal was held to have right to be pro-
tected from individual violence, and parties were indictr
able under the federal statute against conspiring to injure
and oppress citizens of the United States in the exercise
of their enjoyment of the right to be secured against as-
sault or bodily harm.
Privileges and Immunities, Further. In the Corfield
Case, supra, it is said : "The right of a citizen of one state
to pass through or reside in any other state for the pur-
poses of trade, agriculture, professional pursuits or other-
wise; to claim the benefit of the writ of habeas corpus;
to maintain actions in the courts of the state; to take,
hold and dispose of property, real or personal ; exemption
from higher taxes or impositions than are paid by other
citizens of the state, may be mentioned as some of the par-
ticular privileges and immunities of citizens which are
embraced by the general description of privileges deemed
to be fundamental, to which may be added the elective
franchise as regulated and established by the constitution
or laws of the state in which they are exercised. These
and many others which might be mentioned are, strictly
speaking, privileges and immunities, and the enjoyment
of them by citizens of each state in every other state was
manifestly calculated 'the better to secure and perpetuate
mutual friendship and intercourse among the people of
the different states of the Union.' '
Federal and State Privileges Different. We must, how-
ever, remember that the clause of the Constitution in-
volved in the opinion above quoted related to privileges
70 RIGHTS AND PRIVILEGES UNDER
and immunities of citizens of states conferred upon them
as such citizens by state law, and the Fourteenth Amend-
ment had not then been adopted, and rights pertaining
to national citizenship were not in the case, and therefore
the opinion refers to some privileges purely belonging to
state citizenship, not touched by the amendment. Article
4 in the section quoted in that case contains a guaranty by
the federal government against denial by one state to a
citizen of another state of the privileges and immunities
given by the former state to its own citizens, 20 and does
not relate to the federal citizen's rights, nor to the adverse
action by a state upon its own citizen under its own laws.
But the general principles there stated are usually treated
as constituting a correct general rule.
Equal Protection. It may occur to the mind that some
of the privileges instanced above may be within the last
clause of the amendment, giving every "person within its
jurisdiction the equal protection of the laws" ; but the first
clause relates to citizen rights alone, and that later clause
is leveled only against invidious discrimination by state
law between persons equally entitled to the protection of
law ; it is only intended to insure equality before the law,
not protection of privileges and immunities. 23
It has been asserted that all the privileges and immu-
nities protected against adverse action by the federal gov-
ernment in the first eight amendments are all protected
by the Fourteenth Amendment, namely: The free exer-
cise of religion; freedom of speech and press; right to
assemble and petition for redress of grievances; to keep
20 Blake v. McClung, 172 U. S. 239.
21 Slaughter House Cases, 16 Wall. 77, 172 U. S. 252.
THE FOURTEENTH AMENDMENT. 71
and bear arms ; exemption from having soldiers quartered
upon one's premises; security of person, houses, papers
and effects against unreasonable searches and seizures;
exemption from warrants of arrest and search, except for
sworn probable cause; exemption from criminal trial
without indictment by a grand jury; exemption from
second jeopardy for the same act; exemption from self-
crimination as a witness ; immunity from deprivation of
life, liberty or property without due process of law; ex-
emption from having private property taken for public
use without compensation ; right to speedy trial, and that
by jury, with specification of offense, with compulsory
process for witnesses, and aid of counsel; right to jury
trial in suits at common law; and exemption from de*-
mand of excessive bail.
It has been contended that all these privileges, immu-
nities, exemptions or rights guaranteed against hostile
action by the federal government are the very same ones
intended to be all preserved against state action by the
Fourteenth Amendment; that by the earlier amendments
they were safe from federal invasion, but might be denied
by the states without power in the nation to protect them,
and that it was the object of the Fourteenth Amendment
to cure this defect. It was so stated in Justice Field's
dissent in the Slaughter House Cases, and in Congress
when the amendment was proposed. The eminent consti-
tutional lawyer, John Randolph Tucker, in the notable
case of the Chicago Anarchists, Spies v. Illinois, 22 ur-
gently insisted on this view. But as that case holds, those
amendments had design only to restrain the federal gov-
2=123 U. S. 131.
72 RIGHTS AND PRIVILEGES UNDER
eminent, and had no reference to state action, and while
plausible, it is not conclusive to say that the subsequent
Fourteenth Amendment intended to make all and every
of the things protected against federal action by the first
eight amendments privileges and immunities protected
against state action. The court in that case does not ap-
prove that contention, to say the least. The case of Hur-
tado v. California, 23 holding good a trial for capital crime
without indictment upon information, is against it. Those
amendments are not affirmative grants of the rights they
mention; they only prohibit Congress from interfering
with them. If we could say that they originated and con-
ferred those rights as pertaining to the citizen of the na-
tion, we could more readily say that the Fourteenth
Amendment covers them; but those amendments do not
originate or confer those rights. 24 The true position
would seem to me to be that some of the rights mentioned
in the first eight amendments are "privileges and immu-
nities" under the Fourteenth Amendment, and some are
not. It depends on the nature of the right, not on the fact
that it is mentioned in those amendments.
23 HO U. S. 516.
2* U. S. v. Cruikshank, 92 U. S. 542, Sec. 6.
THE FOURTEENTH AMENDMENT. 73
PAKTICULAR PRIVILEGES AND IMMUNITIES
PROTECTED.
f\
Under decisions let us enumerate some things that are
or are not privileges and immunities protected from state
action by Amendment Fourteen.
/^ Eight of Suffrage.-^-This right is not given by federal
law or Constitution, but comes alone from the state. The
state may give or withhold it from whom it chooses, but
can not deny it because of race, color or previous condition
of servitude, as that would violate Amendment Fifteen. 25
Mere citizenship does not confer the vote. Nowhere does
the federal Constitution dictate who shall vote. Very clear
it is that the nation can not say who shall vote for state
officers. This is so, because the national power is limited
to express or implied grant in the Constitution, and this
power to prescribe voters not being given to the nation,
nor prohibited to the states, is reserved to the states, im-
pliedly and also expressly, by the letter of Amendment
Ten, as essential to the very existence of the states. But
can the nation prescribe qualification for voters for fed-
eral office? It can not as to senators or presidential
electors, because the Constitution leaves their selection to
the states.
Congressmen. Can the nation define who shall vote for
representatives in Congress? As Article 1, Section 2,
says that voters for such representatives "shall possess
qualification requisite for electors of the most numerous
branch of the state legislature," the prescription of the
qualification of voters for congressmen is left to the state.
as U. S. v. C'ruikshank. 02 U. S. 542, Sec. 9.
74 RIGHTS AND PRIVILEGES UNDER
In Minor v. Happersett 26 a woman claimed that because
she was. a citizen under the Fourteenth Amendment that
assured her a vote, though the constitution of the state lim-
ited voting to males ; but the court held that "right of suf-
frage was not necessarily one of the privileges or immu-
nities of citizenship before the adoption of the Fourteenth
Amendment, and that amendment does not add to these
privileges and immunities. It simply furnished ad-
ditional guaranty for the protection of such as the citizen
already had. At the time of the adoption of that amend-
ment suffrage was not co-extensive with citizenship of
states ; nor was it at the time of the adoption of the Con-
stitution. Neither the Constitution nor the Fourteenth
Amendment made all citizens voters." It was held that
state law could limit suffrage to males.
As the Constitution, Article 2, Section 2, says that
"Each state shall appoint in such manner as the legisla-
ture thereof may direct/ 7 electors for president and vice-
president, this function is left to the states. The state
may appoint them by its legislature or by popular vote,
either in separate districts or for the state at large, or
part by districts and part by state at large. 27 It is the
state law that punishes illegal voting for presidential
electors. Justice Gray said: "Although electors are ap-
pointed and act under and pursuant to the Constitution
of the United States, they are no more officers or agents
of the United States than are members of the legisla-
ture when acting as electors of federal senators." 28 Not
2621 Wallace, 162.
27 McPherson v. Blacker, 146 U. S. 1.
28 In re Green, 134 U. S. 377.
TH& FOURTEENTH AMENDMENT. 75
being federal but state officers, the nation can not specify
qualifications for voters for presidential electors.
The opinion says that the United States has no voters
of its own creation, and that its elective officers are elected
by state voters, whose law must be supreme as to elective ,
officers until Congress acts. Still, it does not say that
Congress may not create voters and hold election for na-
tional officers. In Section 4, Article 1, is the provision
that "the times, places and manner of holding election for
senators and representatives shall be prescribed in each
state by the legislature thereof ; but the Congress may at
any time by law make or alter such regulation, except as
to the place of choosing senators." Under this section
the law of the state as to qualifications of voters for con-
gressmen and regulations for their election are the test
until Congress itself otherwise enacts, provided Congress
direct that the voters for congressmen possess the same
qualifications as those prescribed by state law for voters
for members of the most numerous branch of the state leg-
islature. In Ex parte Seibold, 100 U. S. 371, the power
of Congress is asserted to make full and complete reg-
ulations for the election of representatives, and such reg-
ulations supersede state regulations, but this does not say
that it can direct who shall vote. Congress can not give
a vote to one not possessing right to vote for a member
of the state legislature. The opinion in Minor v. Happer-
sett 29 left undecided the question whether Congress could
interfere with state law prescribing qualifications for
voters for congressmen, saying that no such interference
had ever been attempted. I think the inference from that
2921 Wall. 162.
76 R1CUTX AND PRIVILEGES UNDER
case sustains the opinion which I have ventured above,
that Congress can not prescribe who shall vote for congress-
men, because the Constitution, in 2, Article 1, says that
electors for congressmen shall have qualifications requisite
for electors of the most numerous branch of the state leg-
islatures, and nobody has ever questioned the absolute right
of the state to fix their qualifications. So even as to elec-
tion of federal officers we find no federal prescription as
to who shall vote. There is clearly no power in the nation
to say who shall vote for state officials as stated above. We
can not say, strictly speaking, that Amendment Fifteen
prescribes qualification for voters for state elections by
giving and granting to colored people the right of suffrage,
for it is held in U. S. v. Keese, 30 that "the Fifteenth
Amendment does not confer the right of suffrage, but it
invests citizens of the United States with the right of ex-
emption from discrimination on account of color or pre-
vious condition of servitude, and empowers Congress to
enforce that right by appropriate legislation." That
amendment is the only instance in which Congress is given
power to interfere with the state's power to qualify its
voters. I note that Ex parte Yarbrough 31 qualifies the
Eeese Case, and explains it, but only in so far as it might
be construed to hold that in no case does Amendment
Fifteen confer suffrage on the colored man. The qual-
ification does not seem material ; for the Yarbrough
Case grants that Amendment Fifteen does not, as an
affirmative grant or definition of suffrage, confer the
vote on the colored man unqualifiedly. It unquestion
30 92 U. S. 214.
si 110 U. S. 651. See Wiley v. Sinkler, 179 U. S. 58.
THE FOURTEENTH AMENDMENT. 77
ably does give A, a colored man, qualified to vote in
all other respects, save only color, as B, a white man,
a right to vote. It is a privilege as well as an immu-
nity; a privilege, because it practically says that A
shall vote, since a prohibition of a denial of his vote is
tantamount to a positive statement that he shall vote. It
is an immunity because the amendment saves him from the
loss of his vote by reason of color. If, therefore, state
constitution or law makes color a qualification of voting,
it violates a privilege or immunity given the colored man,
violates Amendment Fifteen, and the state officers of elec-
tion would be bound to ignore the state law, as it of its
own force, without legislation, strikes the word "white"
from the state constitution, 32 and Congress could enact a
law granting the voter his vote in such case and punishing
its denial. It would be a denial of a right given by
Amendment Fifteen ; but as properly held in United States
v. Reese, 33 it would not come under Amendment Four-
teen. It is not a privilege under Amendment Fourteen.
It does not need that amendment for its maintenance.
If the state definition of suffrage happen to deny it to
a colored man for any substantial ground, not merely col-
orable, other than race, color, or previous condition of
servitude, it violates no privilege or immunity given by
the federal Constitution. Therefore the Reese Case seems
sound. Amendment Fifteen does not unconditionally
grant suffrage. That case does not differ from the Yar-
brough Case. But if a man has a right to vote for a mem-
ber of the most numerous branch of a state legislature by
32 Ex parte Yarbrough, 110 U. S. 665.
33 92 U. S. 214.
78 RIGHTS AND PRIVILEGES UNDER
state law, he then has a right to vote for a congressman,
not merely by state law, but his vote is given, conferred
by federal law under the Constitution as held in the
Yarbrough Case.
Federal Protection of Voters. While the nation has
no voters under qualifications prescribed by it, yet it has
representatives chosen at congressional elections fixed for
a particular day by act of Congress. Presidential elect-
ors are chosen at the same election. These elections being
essential to enable the United States to perform its func-
tions, it has clear right to legislate for their regulation as
a necessary incident to the right to have such officers
chosen, and also under Section 4, Article 1, giving Con-
gress power to make such regulations complete, or alter
state legislation touching them. And under that au-
thority Congress has passed stringent acts to punish offi-
cers of election for congressmen, whether the officers be
of state or federal appointment, for nonperformance, or
misperformance of duty, to punish all interfering with
such officers by bribery, fraud or conspiracy, intimidation
or otherwise, and punishing even persons acting under
state law interfering with marshals or their deputies at
such elections. Such legislation was held valid. 34 Strin-
gent acts punishing persons for hindering voters in the
exercise of their right to vote for congressmen or presi-
dential electors by force, intimidation or threat have also
been sustained under like authority. 35
, Voters in Territories. Here the right of Congress to
s* Ex parte Seibold, 100 U. S. 371; Ex parte Clark, Id., 399;
In re Coy, 127 Id., 731.
35 Rev. Stat. 5508, 5520; Ex parte Yarbrough, 110 U. S. 651.
TUB FOURTEENTH AMENDMENT. 79
give or withhold suffrage and regulate elections and suf-
frage is clear. Its power is absolute. 36
/ Sale of Liquors. Laws of a state regulating or wholly
prohibiting the sale of intoxicating liquors do not depriv,
of a privilege or immunity of citizenship contrary to
Amendment Fourteen. The right to sell or manufacture
spirituous liquors has been held not to be a privilege or
immunity under that amendment 37
As such liquors are a merchantable commodity, one
would think that the right to make or sell them in pursuit
of a livelihood would be a "privilege" under the law. So
it is in nature ; but it is unquestionably within the police
power of a state to prohibit their manufacture or sale
within it. The power exists, not because carrying on
the business is not a privilege, but because it falls under
the police power to prohibit it. 38 It has been claimed
that such prohibitory laws violate that, clause of the
amendment protecting property, but that has not pre-
vented state prohibition. Viewed either in the light of
legislation prejudicial to privilege, property or liberty,
such prohibition is to be defended solely under the police
power, and the Fourteenth Amendment was not designed
to detract from the state's police power. 39 In fact, how-
ever, this right would be better classified as one of per-
sonal liberty, falling under the word "liberty" in the
amendment, rather than under the word "privileges.''
a Opinion in Murphy v. Ramsey, 114 U. S. 44, 97 Am. D. 267:
Bank v. County, 101 U. S. 129.
"Oio/7a v. Tiernan. 148 V. S. 0.57: Miller v. Ammon, 145 Id.,
421 : Vance v. \V. A. Yandercook, 170 Id., 438; Reyman Co. v. Blister,
17H U. S. 445. 21 Sup. Ct. 201.
asKidd v. Pierson. 128 U. S. 1 : Mugler v. Kansas, 123 Id., 623.
s Powell v. Pennsylvania, 127 U. S. 678.
80 RIGHTS AND PRIVILEGES UNDER
However, it is not a privilege of federal citizenship, if
regarded a privilege, and therefore under that head would
not fall under the amendment^! repeat that only privi-
leges and immunities of federal citizenship, not those of
state citizenship, are protected hy this clause of the amend-
ment. \
^ Prohibition of Manufacture. The state may prohibit the
manufacture of liquors within its borders for export. 40
Its police power is complete until transitus has begun
actually, and until it is finished. 41
Liquors sent from State to State. It may not be amiss
here to mention that state law can not prohibit the send-
ing of spirituous liquors by one man in one state to an-
other man in another state. The interstate commerce
clause of the Constitution would condemn such legislation.
At one time this clause allowed this transportation, not
only up to the delivery to the consignee of the liquor,
but allowed him to sell it in the original packages in
which it was put up in the state from which it was sent,
notwithstanding state law prohibiting such sale; but an
act of Congress in 1890 so modified this doctrine as to pro-
tect the liquor only until delivery to the consignee, and
then it falls under the restraint of state laws as to pro-
hibition or regulation. 42 Still, that case and Vance v.
W. A. Vandercook, 43 do allow importation of spirituous
liquors into one state from another, and delivery to its con-
signee, notwithstanding state prohibition. The late act
brings the liquor, after delivery to the consignee, under
40 Kidd v. Pierson, 128 U. S. 1.
41 Giozza v. Tiernan, 148 U. S. 657.
42 Rhodes v. Iowa, 170 U. S. 412.
*3 170 U. S. 438.
J
TilU FOURTEENTH AMEKD11EM'. 1
the state law, so that the Consignee can no longer sell it,
though it remains in original packages of shipment, unless
authorized by state law to do so.
Keeping Liquor in Possession for another, as in storage-
houses, has been prohibited in some states by statute;
but such statutes have been held void as repugnant to
the amendment, and not justified by the police power. 44
Military Parades. These are very common. Though a
privilege, they are within the control of the state, as such
privilege is not one attending federal citizenship, and a
state may regulate the privileges and immunities of its
own citizens, if it does not abridge those of citizens of
the United States. 45 The right to drill and parade with
arms, without authority of federal or state law, it was
held in the case last cited, could be prohibited by the
governor.
/ Practice of Law might be regarded a privilege to earn
a living ; but it has been held not such under the amend-
ment, but subject to state control. 46
Practice of Medicine A state statute regulating it,
limiting the privilege to those possessing certain quali-
fications, was held not repugnant to the amendment. 47
The right to practice medicine does not seem to have been
claimed to deny a privilege, in that case, but it was claimed
that it invaded a property right. If a privilege, it is one
44 State v. Gillman, 33 W. Va. 146; Ex parte Brown, 70 Am. St.
R. 743.
45 Presser v. Illinois, 116 U. S. 252.
46Bradwell v. State, 16 Wall. 130; In re Lockwood, 154 U. S.
116.
47 Dent v. West Va. 129 U. S. 114: State v. Webster, 150 Ind.
007 (full); Seholle v. State, 46 Atl. 326; Noel v. People, 187 111.
587.
32 RIGHTS AND PRIVILEGES UNDER
of state citizenship; and if it is a property right or a
liberty right, it is still subject to state police regulation.
Dentistry, Practice of, falls under the same principle. 43
j Marriage between White and Colored Persons may be
prohibited by a state, notwithstanding the amendment. 49
Regulation of marriage is a police power essential to the
state, and is not impaired by the Fourteenth Amendment.
. Jury Trial in State Court is not a privilege or immunity
of national citizenship which the amendment prohibits
the state from abridging. 50 The state was dealing with
its own citizens in the administration of its laws by its
own procedure. This jury right did not exist because he
was a citizen of the United States, and the amendment
only defends privileges as such coming from national
citizenship.
/ Monopoly Damaging Business and Property .-/-In the
great Slaughter-House Cases 51 the claim was made that
an act Act of Louisiana incorporating a company with
exclusive right for twenty-five years to maintain slaughter-
houses, landings and stockyards for cattle and sheep in-
tended for sale or slaughter, and to charge fees therefor,
the monopoly covering an area including the city of New
Orleans and a population of 300,000, and prohibiting all
persons from doing like business within the area, and re-
quiring all stock for sale or slaughter within it to be
landed there, but allowing all owners of stock to land it
48 14 L. R. A. 581,- Gosnell v. State, 52 Ark. 228, 12 S. W. 392;
State v. Creditor, 21 Am. St. 306; State v. Knowles, 49 L. R. A. 695,
90 Md. 646.
49 Ex parte Hobbs, 1 Woods, 537; State v. Gibson, 36 Ind. 389.
so L. & N. Co. v. Schmidt, 177 U. S. 230: Walker v. Sauvinet,
92 U. S. 90.
si 16 Wall. 36. See Xewburyport Co. v. City, 103 Fed. 584.
////; rm-RTEEM'H AMEXDMEM. 33
there and all butchers to slaughter there it was claimed
that it was not only a monopoly, but that the act deprived
the butchers of privilege and immunity on the theory
that they had the right to carry on their legitimate busi-
without fee, and that the act trenched on their right
to make a living, and on the right of the people to be sup-
plied by them with the necessaries of life, and also took
away property without due process of law. The court
held that the rights claimed were not "privileges and im-
munities of citizens of the United States within the mean-
ing of the clause of the Fourteenth Amendment under
consideration. 77 .At first thought, we might doubt this de-
cision; but it seems on second thought clear that the act
\vas defensible under the state's police power, and at any
rate, the right claimed by these complaining persons did
not inhere in them as citizens of the nation, but as citi-
zens of the state, subject to state control, and whether
their privileges and immunities were violated was a state
judicial question, not a federal question. If the act had
interfered with interstate commerce, it might be different,
as the right to carry on such commerce should be con-
sidered a privilege pertaining to the person as a citizen
of the Union. Four out of the nine judges sitting in the
case dissented.
^Colored Jurors. I take it that the case of Strauder v.
West Virginia, 52 holding that a state statute excluding
colored persons from juries, is repugnant to the Four-
teenth Amendment, falls under that clause against deny-
52 100 U. S. 303; In re Wood, 140 U. S. 278; Carter v. Texas,
177 U. S. 442.
84 RIGHTS AND PRIVILEGES UNDER
ing equal protection of the laws, rather than the clause
of, privileges and immunities.
J Colored Persons' Rights in Hotels, etc An act of Con-
gress declared that all persons should be entitled to equal
enjoyment of inns, public conveyances, theatres and other
places of amusement. If that act were valid, such en-
joyment of inns, conveyances and theatres would be a
"privilege," and a privilege of a national citizen, because
given by national law ; but The Civil Rights Cases 53 held
the act unconstitutional, because not warranted by the
Fourteenth Amendment, it being legislation of original
character belonging to the states, not merely corrective of
state legislation. They waived the point whether such
right was an essential right beyond state abridgment, the
act giving the right being void. As the act was void, the
right given by it could not be a privilege of federal citi-
zenship, though it might be one of state citizenship, and
could not be a subject of federal cognizance, but only of
state cognizance. The court laid down the principle that
legislation by Congress under Section 5, of Amendment
Fourteen, must not be legislation for the government of
the people of the states, a code, or part of a code of law ;
that is, legislation of affirmative or general nature, even
on the subjects respecting which the state is prohibited
by the amendment, but only legislation in its nature cor-
rective of state law, or action of officers under state
authority only counteracting state law or action under
its authority. This is an important case and an important
principle. The case still leaves with the states, notwith-
standing the augmentation of congressional power made
53 109 u. S. 3.
THE FOURTi;i;.\TlI A. \IU\DMK\T. 85
by the amendment, the right to legislate for the govern-
ment of their people, and denies to Congress the capacity
to do so, conceding it capacity only to legislate so far as
is found necessary, from actual state action, to carry out
the prohibition upon the states made by the amendment.
The function assigned to Congress by those cases is rather
antidotal or corrective to stop, to remedy further mis-
chief from state law or action. The Civil Rights Cases
discriminate between the act admitting colored persons to
hotels, conveyances and theatres, and the act called "The
Civil Rights Bill," declaring the same right of all persons
to make contracts, sue, give evidence, to have the benefit
of all laws for the security of persons and property, and
to acquire and convey property, as is enjoyed by white
citizens, treating the latter act as valid, because made in
counteraction of actually existing state law making dis-
crimination between white and colored people as to ability
to contract, hold property, give evidence, etc. The latter
act is to secure civil rights. It might be said the other
act related to social rights. It may be questionable to say,
though the amendment is only prohibitory in character,
that Congress could not pass laws to anticipate and pre-
vent in advance apprehended state action in violation of
such prohibition; but the Civil Rights Cases do so; at
least, they deny power in Congress to assume the function
of legislating generally, like a state legislature, for the
government of the people of a state, even in respect to
the matters dealt with by the amendment. The spirit of
the decision the general way blazed out by it is right.
It must not be assumed beforehand that a state will vio-
late the federal Constitution, or deny essential rights to
86 RIGHTS AND PRIVILEGES UNDER
its people. The nation should not regard the states as
alien or hostile, any more than the people of the states
should harbor an insane jealousy of the federal govern-
ment, and regard it as an alien enemy bent on destruction
of the rights of the states. Nation and states should be
in this matter one and inseparable. The median line is
here the line of safety, as it generally is.
Another sound reason given by the court in the Civil
Rights Cases why the privileges there involved did not fall
under the Fourteenth Amendment, is, that the amend-
ment only deals with state action, not individual action,
and the denial of admission by a hotelkeeper or owner of
a conveyance or theatre is an individual act. And would
not the police power of the state in such case forbid the
federal statute ?
Those cases do not pass on the right of Congress to
compel admission to conveyances passing between states.
Possibly it would be a privilege enforceable by Congress,
because the commerce clause gives right to carry on inter-
state commerce, and passing from state to state is an
essential in its transaction.
Attention is called to the fact that the power of Con-
gress under the Fourteenth Amendment to enforce it by
"appropriate legislation" is different from its power to
legislate generally as to foreign and interstate commerce,
mails, coinage and war, because the Constitution as to
those subjects invests Congress with plenary and complete
power of legislation, exclusive of the states. As to them,
Congress is what a state legislature is as to other matters
within its domain. 54
4 Passenger Cases, 7 How. 283.
TtiL' FOURTEENTH AMENDMENT. gf
/Separate Cars for White and Colored. The Supreme
Court holds that an act of a state requiring white and
colored persons to ride in separate railroad cars, but pro-
viding equal accommodation for both, does not violate
a privilege or immunity under the Fourteenth Amend-
ment, 55
The opinion of Justice Brown says: "The object of
the amendment was undoubtedly to enforce the absolute
equality of the two races before the law; and in the,
nature of things it could not have been intended to abolish
distinction based on color, or to enforce social, as dis-
tinguished from political equality, or a commingling of
the two races upon terms unsatisfactory to either. Laws
permitting, or even requiring, their separation in places
where they are liable to be brought into contact, do not
necessarily imply the inferiority of either race to the
other, and have been generally, if not universally, recog-
nized as within the competency of state legislatures in
the exercise of their police power. The most common
instance of this is connected with the establishment of
separate schools for white and colored children, which has
been held to be a valid exercise of the legislative power,
even by courts of states where the political rights of the
colored race have been longest and most earnestly en-
forced." The court said this case did not conflict with
R. R. Company v. Brown, 56 holding that where a statute
provided that "no person should be excluded from the
cars on account of color," no one could be excluded from
ssplessy v. Ferguson, 163 U. S. 537. 18 L. R. A. 639 and notes;
C. & O. Co. v. Kentucky, 179 U. S. 388.
e 17 Wall. 445.
88 RIGHTS AXD PRIVILEGES UNDER
any car, though separate ones were furnished for the two
races.
Trains from State to State. In the case above mentioned
the court did not apply the rule to cars running from state
to state engaged in interstate commerce. The Supreme
Court has held state laws for separate cars valid, because
construed by the state court as applicable only to internal
passenger carriage, that is, to cars running only in the
state, and did not directly, but did virtually, decide that
as to cars passing from state to state, the state law would
be invalid. 57 It may be regarded doubtful whether we
can regard those decisions as pointed that such state laws
would be invalid; but if so, we must remember that this
federal power is not to be attributed to the Fourteenth
Amendment, as it comes alone from the old commerce
clause giving Congress power to regulate commerce be-
tween the states. !N"ow, if the federal act giving colored
people entrance into inns and public conveyances were
valid, probably the right to go into any car might be
deemed a privilage of federal citizenship under the amend-
ment; but the Civil Rights Cases held it void. Losing
that foundation, we must look to some other clause of
the amendment to overthrow state law of separate cars.
We may say that it is a part of personal liberty, the right
of locomotion ; but though it be, still if the law gives sub-
stantially equal accommodation, though the passenger goes
to another state, that right is not denied or abridged. The
state law is merely one of regulation. As to the commerce
clause, how is a man, though going from state to state to
sell his cattle, retarded or obstructed in his right to carry
57 Louisville, etc., v. Mississippi, 133 U. S. 587; C. & O. Co. v. Ken-
tucky, 179 U. S. 388.
TUB FOURTEENTH AMENDMENT. 9
on interstate commerce, if given like transportation with
another man? Such legislation, if the state regard it
best for the harmony and comfort of the two races, and con-
ducive to public order, would seem to find full warrant
under the police power. And is it a privilege of fed-
eral citizenship ? But it seems it would be invalid. 58
/ Separate Schools for White and Colored. Laws so provid-
ing have been sustained as valid. Mr. Justice BrowTi
so regards them in Plessy v. Ferguson. 59 Chief-Justice
Shaw, in the Supreme Court of Massachusetts, said: "It
is urged that this maintenance of separate schools tends
to deepen and perpetuate the odious distinction of cast,
founded in deep-rooted prejudice in public opinion. This
prejudice, if it exists, is not created by law, probably can
not be changed by law. Whether this distinction and
prejudice existing in the opinion and feelings of the com-
munity would not be as effectually fostered by compelling
colored and white children to associate together in the
same school, may well be doubted; at all events, it is a
fair and proper question for the committee to decide upon,
having in view the best interests of both classes placed
under their superintendence, and we can not say their
decision is not founded on just ground of reason and ex-
perience, and is the result of discriminating and honest
judgment." 60
That case was before the Fourteenth Amendment, but
its principles are sound under it. Separate schools are
justified by the police power, as Justice Brown said in
58 Hall v. De Cuir, 95 U. S. 485; Anderson v. Co., 62 Fed. 46.
163 U. S. 544.
o Roberts v. City, 5 Cush. 198.
90 RIGHTS AND PRIVILEGES UNDER
Plessy v. Ferguson, supra, which power is intact in the
states, notwithstanding the amendment. If this were not
so, how can we say that a right to obtain an education
under state law and expense is a right belonging to federal
citizenship, when it emanates from state law \ Xot
being a federal right, it does not come under the amend-
ment. It is a great privilege, it is true, and belongs, as
of right, to the colored child under the state's free school
system, and must be enforced; but it is because he is
a state citizen. It is not a matter of federal cognizance.
In Martin v. Board of Education, 61 Judge Dent said:
a The meritorious question presented is as to whether
Section 8 of Article 12 of the Constitution of this state
is repugnant to Section 1 of the Fourteenth Amendment
to the Constitution of the United States, in this: that
it declares that white and colored persons shall not be
taught in the same school. The only privilage that appears
to be denied to colored children in this section is that of
association with white children, and vice versa. If it had
required that they should be taught in the same school,
then it would have been a compulsory infringement of
the rights of both, but, as it is now, it treats them both
alike, and places them precisely on the same footing. It
prevents the legislature and boards of education from in-
fringing on the rights of both in compelling them to attend
a common school, which might be highly detrimental to
both, and injurious to the school. Social equality can not
be enforced by law. This question has already been
settled by numerous decisions of state and federal courts.
Hall v. De Cuir, 95 IT. S. 485 ; Slaughter-House Cases,
i 42 W. Va. 514.
THE FOURTH K.\T1I AMENDMENT. Ql
Iti Wall. 36; State v. McCann, 21 Ohio St. 210; People
v. Gallagher, 93 JST. Y. 438 ; Cory v. Carter, 48 Ind. 337 ;
Lehew v. Brummell, 103 Mo. 546, 15 S. W. 765 ; Ward
v. Flood, 48 Cal. 36."
The Xew York court said in People v. Gallagher, supra :
"In the nature of things there must be many social dis-
tinctions and privileges remaining unregulated by law,
and left to individual control as citizens, beyond reach of
legislative functions of government to organize and con-
trol. The attempt to enforce social intimacy and inter-
course between races by legal enactment would probably
tend only to embitter the prejudices, if such things are,
which exist between them, and produce evil instead of
good results. . . . When the state has secured to each
citizen equal right before the law, and equal opportunity
for improvement and progress, it has accomplished the
end for which it was organized." The court held that
the act did not violate the Fourteenth Amendment. It
wu< so held in State v. McCann. 62 The court said that
the separation of white and colored was no more un-
' reasonable than separation on account of sex or grade. 63
The Supreme Court of the United States has held that a
decision by a state court refusing an injunction against
the maintenance of a high school for white children, while
failing to maintain one for colored children also, for
the reason that the funds were not sufficient to maintain
it in addition to needed primary schools for colored chil-
dren, is not a denial to colored persons of the equal pro-
21 Ohio St. 108.
a Dawson v. Lee, 83 Ky. 49.
go RIGHTS A\D i'RL \LLEUE 8 UXDEli
tection of the law, or equal privileges of citizens of the
United States. 64
An act applying the taxes collected from each race to
the schools of each race has been held contrary to the
Fourteenth Amendment. 65
In Clark v. Maryland Institute, 66 it was held that an
educational institution, though given municipal aid, is
not a part of the public school system, and may exclude
colored pupils- without violating the Fourteenth Amend-
ment, as denying the equal protection of law or the im-
munities of citizens, as the amendment applies only to
state action, not to actions of individuals or private cor-
porations.
^ Carrying Deadly Weapons. Statute Prohibiting, not a
Violation of the Fourteenth Amendment, or the Second
Amendment. The second does not grant the right to
carry a weapon. It operates only on the federal govern-
ment. It does not impair the state power of regulation
and police in this respect. 67
Diseased Cattle Running at Large. A state law impos-
ing a penalty for allowing cattle having Texas fever to
run at large, applying to all persons alike, was held not
to abridge privileges and immunities under the Four-
teenth Amendment, nor violate the commerce clause. 6S
The police power of the state would warrant the statute.
This decision is to be distinguished from Railroad v.
e* Gumming v. County Board, 175 U. S. 528.
es Claybrook v. City, 23 Fed. 634 ; Marcum v. Manning, 96 N. C.
132.
es 87 Md. 643.
67 Miller v. Texas, 153 U. S. 535; U. S. v. Cruikshank, 92 Id.
542.
Kimmish v. Ball, 129 Id. 217; Missouri, etc., R. Co. v. Haber,
100 U. S. 013.
UNIVERSITY
OF
fQ
THE FoL'RTEEXTti AMENDMENT.
Husen, 69 holding void a statute prohibiting the introduc-
tion into the state during eight months of the year of
Texas cattle. The latter case was held not within the
police power. The exclusion total of all Texas, Mexican
or Indian cattle, diseased or not, was beyond needful
police power. This case seems to recognize that the com-
merce clause is not to be construed as a surrender by the
state of its police power, and at the same time seems else-
where to assert the contrary, by holding that as the power
of Congress to regulate interstate commerce is plenary,
it is a surrender of state police power. This plenary
power of legislation in Congress under the commerce
clause does not exist under the Fourteenth Amendment.
The latter only authorizes restrictive legislation, as stated
in the Civil Eights Cases. 70
Execution of Death Sentence by Electricity The clause
of the Fourteenth Amendment against state abridgment
of privileges and immunities was appealed to against a
state statute changing the execution of death sentence
from hanging to electrocution ; but it was held not to in-
validate the law. 71
Solitary Confinement of Felons until Execution of Death
Sentence. Statute directing it held valid. 72
Assemblages to Petition Government of the United States
for "redress of grievances, or for anything connected with
the powers and duties of the national government, is an
attribute, a privilege, of national citizenship, and as such
under the protection of and guaranteed by the United
95 U. S. 465.
109 U. S. 3.
7i In re Kemmler, 136 U. S. 436.
" McElvaine v. Brush, 142 U. S. 155.
94: tiWHTX AND 2 J RI VI LEGES UNDER
States. The very idea of a government republican in
form implies that right, and an invasion of it presents a
case within the sovereignty of the United States." 73
Eight to take Homestead or Preempt Land under federal
law is a privilege national, to be vindicated by national
law. 74
Minors in Saloons. A statute imposing a penalty for
allowing a minor to remain in a saloon was held not to
violate the Fourteenth Amendment as depriving a citi-
zen of privileges. 75
Sunday Law requiring places of business to be closed
that day does not violate the Fourteenth Amendment as
to abridging privileges of federal citizens; it touches
only rights of state citizens. It is within the police power
and valid. 76 Cases conflict.
Vaccination as Essential to Attend School Statute not
x~
void under the Fourteenth Amendment. 77
\ Eight of Contract Civil Rights Act. The Civil Eights
Act gives every "person" within national jurisdiction
"the same right" to contract, give evidence, sue, have
the benefit of all laws for security of person and property,
and to acquire and transfer property, "as is enjoyed by
white persons." Are these rights "privileges and im-
munities" under the clause of the amendment now under
consideration ? Can it be sustained as constitutional by
the clause ? I do not think it falls under this clause,
73 U. S. v. Cruikshank, 92 U. S. 542.
74 U. S. v. Waddill, 112 U. S. 76.
73 Peopie v. Japinga, 115 Mich. 222; Gastineau v. Ky. 49 L. R. A.
111.
76 State v. Fernandez, 39 La. Ann. 538 : People v. Pellet, 41 Am.
St. R. 589, 45 L. R. A. 504; Petit v. Minnesota, 177 U. S. 164.
Contra Denver v. Bach. 58 Pac. 1089.
77Bissell v. Davisson, 65 Conn. 183.
THE FOURTEENTH AMENDMENT. 95
though one would be disposed to call the rights given by
that act privileges of high cast. The act gives these
rights to all "persons" within federal jurisdiction,
whether citizens of the United States or not; whereas
the amendment in the present clause protects privileges
and immunities of only national citizens, the act being
in this respect broader than the amendment. The act
grants these rights only to colored persons, as its language
shows. 78 It could not, therefore, intend to cover the ground
of this clause of the amendment, which defends the privi-
leges and immunities of federal citizens, white or colored.
And this clause only warrants congressional legislation
as regards privileges and immunities of national citizens,
whereas this act is for all persons. Hence we must look
to other clauses for authority for this great act. We shall
find it in later provisions of the amendment denying to
states the power to deprive any person of life, liberty or
property without due process of law, or to withhold the
equal protection of the laws. As the act finds its full
shelter under them, the present privilege clause does not
apply, as it was not intended to be as broad, or cover the
same ground as subsequent clauses.
As the privilege and immunity clause is limited to
privileges and immunities of national citizenship in terms,
as distinguished from state citizenship, not so many rights
fall under it, as federal privileges are less numerous than
those of state citizens under state law. In addition, no
federal privileges or immunities are protected by this
clause that were not protected before it came, or which
would not be protected without it. How could a state
. Stat. 1077. 1078; U. S. v. Sanies. 48 Fed. 78.
96 RIGHTS AND PRIVILEGES UNDER
prejudice a federal privilege? The federal power would
intervene for its protection without this amendment.
True, the amendment gives Congress power to enforce it ;
but it is supposed that efficacious remedy for infraction
of a federal privilege would exist without this clause.
Hence the great utility of this clause is not apparent. The
core of this great amendment lies in its guaranty of life,
liberty, property and equality before the law.
THE* FOURTEENTH AMENDMENT. 97
Chapter 7.
LIFE, LIBERTY, PROPERTY, EQUAL PROTEC-
TION OF LAW.
At the threshold of the discussion of the clauses of the
Fourteenth Amendment touching these subjects, it is
proper to say that it is no matter by what proceeding, or
in what manner, the state deprives the person of life,
liberty or property, or denies him the equal protection of
the law, without due process of law, whether by legisla-
tion or judicial decision, or by what officer or agent, or
agency, so it be by state authority, or by any subordinate
division, as by municipal corporation, the result is the
same, and is equally prohibited. But it is only the state
that is prohibited, not individual action. It does not
touch individual action. 1 The infraction of the amend-
ment may be by a municipal corporation, or by the state
legislature, or governor. 2 It is different with that clause
of the original constitution which prohibits a state from
passing any "law" impairing the obligation of contracts;
for as the word law is used, it has been adjudged that
this provision "is aimed at the legislative power of the
i Virginia v. Rives, 100 U. S. 313; C. B. & Q Co. v. Chicago, 166
U. S. 226.
- Perm Mutual v. City of Austin, 168 U. S. 685.
98 RIGHTS AND PRIVILEGES UNDER
state, not a decision of its courts, or acts of executive or
administrative boards or officers, or doings of private cor-
porations or individuals. "fx
But any agency of the state, where it has power to
make "law," as a municipality laying tax violative of
contract, may infract this contract clause.
Note, that in the Fourteenth Amendment the word
"law" is used in the first provision saying that "no state
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States,"
but not in the subsequent clauses, which broadly declare
that no state shall "deprive any person of life, liberty or
property without due process of law, nor deny to any per-
son within its jurisdiction the equal protection of the
law." Here the prohibition is upon the state, whether
its harmful act be by legislature, court or officer.
MAGNA CHAKTA.
Sacred things should be preserved in perpetual memo;
rial. In all the tomes of the written law of the wasting
centuries there is no more sacred monument erected by
man struggling for freedom than is the Great Charter.
It is holy, because to the reader of history it goes back
and tells of the woes and sufferings of man under the
yoke of tyranny and autocratic government, and of his
final success in the struggle for human right; and it
tells of the promise arid guaranty of everlasting human
freedom. The tree has borne its enduring fruit. Liberty
is sanctified in Magna Charta. It will never perish
s N. O. Water Works v. La. Sugar Co., 125 U. S. 18.
THE FOURTEENTH AMENDMENT. 99
from the earth. It is the child of political evolution,
and evolution never works backward. The Anglo-Saxon
wherever he has planted his foot has enshrined Magna
Charta in his constitutional law. Whether he is in Eng-
land or her colonies in distant seas, or is in the great Amer-
ican Republic or its colonies in distant seas, he will never
give up Magna Charta. It is bone of his bone, sinew
of his sinew. He will know no change or shadow of turn-
ing in this regard. Revolutions never go backward. It
is thus a fitting initial under the important heading of
life, liberty and property, and equality before the law,
to incorporate the not classical, but plain and robust,
Latin in which Magna Charta was extorted from King
John by the sturdy Barons of England at Runnymede,
in June, 1215 ; for this is the progenitor of the immortal
principles of freedom found in all the American constitu-
tions, and in the national Constitution.
"Ne corpus liberi hominis capiatur nee imprisonetur
nee disseisietur nee utlagetur nee exuletur, nee aliquo
modo destruatur, nee rex eat vel mittat super eum m,
nisi per judicium parium suorum, vel per legem terrae."
"Let not the body of a freeman be taken or imprisoned
or (he) be disseised or outlawed or exiled, nor let him
be in any manner destroyed, nor let the King go or send
against him with force, except by the judgment of tis
peers or the law of the land."
Those two words, "liberi hominis/' apply the blessings
of this charter to all free people, as "homo" means man,
woman, child, mankind, the same as "person" in our
amendment. We omit tho word liber, free, because we
are all freemen, unlike England in 1215. How conse-
100 RIGHTS AND PRIVILEGES UNDER
crated in English hearts was the Great Charter we may
know from the fact that it was required to be read aloud
in cathedral churches twice a year, and by sheriffs four
times a year in open county court, and all archbishops and
bishops were by Statute 25, Edward I., required to pro-
nounce ecclesiastical excommunication against all violat-
ing it. This was the curse :
"In the name of the Father, Son and Holy Ghost,
Amen. Whereas, Our sovereign Lord, the King, to the
honor of God and the Holy Church, and for the common
profit of the realm, hath granted for him and his heirs
forever, these articles above written; Robert, Arch-
Bishop of Canterbury, primate of all England, ad-
monisheth all his province, once, twice and thrice: Be-
cause that shortness will not suffer so much delay as to
give knowledge to all the people of England of these
presents in writing; we therefore enjoyn all persons, of
what estate soever they may be, that they and every of
them, as much as in them is, shall uphold and maintain
these articles granted by our Sovereign, the King, in all
points. And all those that in any point do resist or break
those ordinances, or go about it, by word or deed, openly
or privily, by any manner of pretense, or color, We, the
aforesaid Arch-Bishop, by our authority in this writing
expressed, do excommunicate and accurse, and from the
body of our Lord Jesus Christ, and from all the company
of Heaven, and from all the sacraments of Holy Church,
do sequester and exclude."
History says that this Great Charter was wrested from
John by the English barons by force ; but those nobles
did not this work for themselves. The Great Commoner,
THB FOURTEENTH AMENDMENT. 1Q1
in the House of Lords in 1770, said: "They did not say,
these are the rights of the great barons, or these are the
rights of the great prelates. Xo, my lords; they said in
the simple Latin of the time, Nullus liber homo,, and pro-
vided as carefully for the meanest subject as for the
greatest. These are uncouth words, and sound but poorly
in the ears of scholars; neither are they addressed to the
criticism of scholars, but to the hearts of freemen. These
three words have a meaning which interests us all; they
deserve to be remembered, they deserve to be inculcated
in our minds, they are worth all the classics."
The American states are indebted to England for
their constitutional liberty, a heritage which must always
endear the mother country to every true, fairminded
American. From her we derived our laws, our freedom,
our language, our religion all we hold most dear and
sacred. The Anglo-Saxon hath builded well wherever
he has set his sole; his structures are eternal, imperish-
able ; he will dominate the world, not by fire and sword,
not by tyranny and oppression, but by civilization, educa-
tion, and the undying principles of Magna Charta.
Old as the Charter is, Coke says that its rights belonged
to the English people long before 1215, and that "this stat-
ute of magna charta is but a confirmation or restitution of
the common law." He says: "It is called Magna Charta,
not for the length or largeness of it (for it is but short in
respect of the charters granted of private things to private
persons, being elephantinae chartae), but it is called the
great charter in respect of the great weightiness or weighty
greatness of the matter contained in it in a few words >
being the fountain of all the fundamental laws of the
102 RIGHTS AND PRIVILEGES UNDER
realm, and therefore it may be truly said of it that it is
magnum in parvo. 4
Our English fathers lost its liberties at times ; tyranny
often sought to forget or annul ; but those sturdy freemen
demanded and had the charter confirmed above thirty
times, according to Lord Coke. We boast of the wisdom
of our American forefathers in the engraf tment of free
principles in our fabric ; but the palm belongs to those
old English barons. Illustrious is the parentage of those
immortal principles of human liberty imbedded in Ameri-
can constitutional law. The Great Charter was reaffirmed
in 1216, in the infancy of John's son, Henry III., by the
advice of Gualo, the Pope's legate. When of age Henry
cancelled it; but in 1254, at a great council where he was
present, the archbishop of Canterbury and bishops of the
Roman Catholic church, in canonicals, with tapers burn-
ing, denounced sentence of excommunication upon the
breakers of this covenant of liberty, no matter how high
their place, and Henry restored the charter. Thus the
church, to its renown and honor, stood the godfather and
patron of human rights. She never saw a more illustrious
day in her long history, nor performed a higher act for
man on earth. The charter hath been given to us. Shall
we, of England and America, keep it? Unquestionably.
The forward march of man, the freedom of speech and
press, popular education, human evolution and exaltation,
all forbid that the children shall give up this holy testa-
ment of the fathers.
"For freedom's battle once begun,
Is handed down from sire to son."
* 1 Coke Lyt. 22.
THE FOURTEENTH AMENDMENT. 1Q3
LIFE, LIBERTY AND PROPERTY.
We come now to that clause of the Fourteenth Amend-
ment saying, "Nor shall any state deprive any person
of life, liberty or property without due process of law."
A vastly important clause is this one, as before stated.
It is nothing new. It is only Magna Charta over again.
It is, and before this amendment was, in all the state
constitutions. It was not a stranger to the national Con-
stitution before the birth of the Fourteenth Amendment;
for it is found in the Fourth Amendment; but that
amendment, as also every one of the first ten amendments,
operates only on the national government, not on the
states ; 5 so that until the Fourteenth Amendment came
there was not any right or color of power in the national
government to compel a state to concede to its own citizens,
or persons under its jurisdiction, rights of even life,
liberty or property, nor restrain a state's action hostile
thereto by any coercive or supervisory power, legislative,
executive or judicial. In the long life of the government
there had been no call for this restraining hand upon the
states. They had been sovereign therein up to the adop-
tion of this amendment. We are thus naturally led to ask,
What event caused the great change bringing in its train
the great augmentation of national power over the states ?
The answer is, the Civil War and its logical results upon
the condition of millions of people. The call for that
amendment was not to curb the power of the states to
secede from the Union, and destroy it; that was settled
by the arbitrament of arms ; but the moving object, pur-
's Spies v. Illinois, 123 U. S. 131, 166.
104 RIGHTS AND PRIVILEGES UNDER
pose and necessity for the amendment was the altered
condition, as a result of the war, of the millions of slaves,
from that of slaves to freemen, and their inequality with
other men before the laws of the states. It would seem
that so soon as the Thirteenth Amendment was adopted,
as it abolished slavery, that instant the law in those states
where slavery had existed giving white persons security
of life, liberty and property, would attach to the en-
franchised slave, where the letter of state law did not make
a distinction between white and colored persons; nor do
we know that this proposition has been denied in those
states; but at the close of the war the constitutions and
statutes of the former slave states contained provisions
made during the existence of slavery discriminating in
very many vital respects between white and colored per-
sons. The history of those times tells us that it was
feared that owing to the feelings and prejudices growing
out of the late slavery on the part of white persons in
those states, these essential rights would be denied or in-
adequately secured, unless a power were incorporated in
the federal Constitution enabling the nation, in case such
rights should be denied or invaded, to intervene for their
protection. On this line of argument Judge Cooley, with
all his conservatism, strongly defends the need and jus-
tice of the amendment. 6 Protection to the ex-slaves was
the moving, immediate cause of the Fourteenth Amend-
ment, and the supreme court has said that that fact must
be kept in mind in its construction. 7 The court said:
"An examination of the history of the causes which led
e Story, Constitu. Ch. 47 ( 5th Ed. ) .
i Slaughter House Cases, 16 Wall. 36.
THE FOURTEENTH AMENDMENT. 1Q6
to the adoption of those amendments and of the amend-
ments themselves demonstrates that the main purpose of
all the last three amendments was the freedom of the Af-
rk-an race, the security and perpetuation of that freedom,
and their protection from the oppressions of the white
men who had formerly held them in slavery." This has
been criticised as assigning too narrow an object to the
amendment, as limiting its benefit to the colored people.
It seems to me that the Supreme Court, in the words
quoted, intended to give the amendment no such limita-
tion, and only meant that its occasion should be ever
kept in mind as suggesting that the national authority
should not be too radical in exercising jurisdiction over
the states under it a jurisdiction beyond what was meant
in its adoption, under the well-known rule that in con-
struing statutes we must have in mind the evil to be rem-
edied. Be this as it may, the amendment applies clearly
to all, white or colored, without regard to race. In Strau-
der v. West Virginia 8 it is held: "The Fourteenth
Amendment considered and held to be one of a series of
constitutional provisions having common purpose, namely,
to secure to a recently emancipated race, which had been
held in slavery through many generations, all the civil
rights that the superior race enjoy, and to give to it the
protection of the general government in the enjoyment
of such rights whenever they should be denied by the
states. Whether the amendment had other, and if so,
what, purposes, not decided. The amendment not only
gave citizenship and privileges of citizenship to persons
of rolor, but denied to any state the power to withhold
100 u. S. 303.
106 RIGHTS AND PRIVILEGES UNDER
from them the equal protection of the law, and invested
Congress with power, by appropriate legislation, to en-
force its provisions. The amendment, though prohibi-
tory in terms, confers by necessary implication a posi-
tive immunity, a right most valuable, to persons of the
colored race the right to exemption from unfriendly
legislation against them distinctively as colored exemp-
tion from discriminations imposed by public authority,
which imply legal inferiority in civil society, lessen the
security of their rights, and are steps towards reducing
them to the condition of a subject race."
If the criticism above mentioned of the Slaughter
House Cases, as tending to narrow the efficacy of the
amendment to the colored race, was ever well taken, it
has been dispelled by a later decision, 9 holding that "the
guaranties of protection contained in the Fourteenth
Amendment extend to all persons within the territorial
jurisdiction of the United States, without regard to dif-
ferences of race, color or nationality." In Virginia v.
Rives 10 it is held that the amendment secures equal rights
to all persons.
Yick Wo v. Hopkins, 118 U. S. 356.
10 100 U. S. 313.
THE FOURTEENTH AMENDMENT. 1Q7
Chapter 8.
LIFE.
We need give no definition here. The amendment pro-
tects life and limb against attack, except only by due
process of law. This concedes the right of the state to
take even life under the high behest and necessity of
government, provided it be taken by due process. The
federal government has no pretence or color for inter-
vention, even under the Fourteenth Amendment, in the
usual enactment and administration of the state's crimi-
nal law. 1 This function of the state falls under the po-
lice power. It is by virtue of the original sovereignty of
the state that she can wield the police power, inherent in
the state ab iniiio, and on this power the whole criminal
law of the state rests, 2 and the Fourteenth Amendment
has not taken from the states the police power. 3
"The people of a state are entitled to all prerogatives
formerly vested in the king, subject only to limitations
imposed by the Constitution of the nation or state. The
states retain all their original powers of sovereignty, ex-
1 Strader v. Graham, 10 How. 82.
2 1 Mcf'lain Orim. Law. 23.
sBarbier v. Connelly, 113 U. S. 27; Powell v. Pennsylvania, 127
U. S. 678.
108 RIGHTS AND PRIVILEGES UNDER
cept so far as the Constitution vests them in the nation,
or prohibits their exercise by the state." 4
The criminal jurisprudence was never granted to the
nation, and is left to the states, both because never granted
away, and because of Amendment Ten saying that all
powers not granted to the nation are reserved to the
states. 5
It is hardly necessary to say again that the amendment
does not touch the case of the individual or mob murder,
as it deals, not with acts of individuals, but only with
action by the state through its constituted authorities. 6
Such murders by individuals or mobs are to be dealt with
only by the states.
* Lansing v. Smith, 21 Am. D. 89; Blair v. Ridgely, 97 Id. 248
and note; Corn v. Erie Co., 1 Am. R. 399.
s McElvain v. Brush, 142 U. S. 155.
Virginia v. Rieves, 100 U. S. 313; ex parte Virginia, Id. 339;
Civil Rights Cases, 109 Id. 3.
TUB FOURTEENTH AMENDMENT. 1Q9
Chapter 9.
LIBEKTY.
What is its meaning as used in the Fourteenth Amend-
ment? Does it mean merely immunity from bodily de-
tention in a penitentiary or jail ? Certainly not. So
narrow a meaning to this word in a constitution, state
or federal, would shear it of force and emasculate its
strength to perform necessary offices, which no other pro-
vision of the constitution would perform. Its meaning
in Magna Charta, and this amendment is only a repeti-
tion of that, as expounded by Blackstone, is: "Next to
personal security, the law of England regards, asserts and
preserves the personal liberty of individuals. This per-
sonal liberty consists in the power of locomotion, of chang-
ing situation, or moving one's person to whatsoever place
one's own inclination may direct, without imprisonment
or restraint, unless by due course of law." 1 This is too
narrow a definition of liberty. Under the two words
"life" and "liberty" Blackstone would cover personal se-
curity and personal liberty. So does the amendment.
But under what Blackstone calls "personal liberty" what
shall we secure under the Fourteenth Amendment? Lib-
i 1 Bl. Com. 134.
HO RIGHTS AND PRIVILEGES UNDER
erty does not mean merely freedom from imprisonment
of the body. Under the term "personal security" Black-
stone defends "enjoyment of life, limb, body, health and
reputation." 2 We can say that the words "life and lib-
erty" in our state constitutions cover the things specified
by Blackstone, but they cover more. They cover both
personal security and personal liberty, I repeat. But
what does the word "liberty" mean in American con-
stitutions ? This is the test question here, for it means
in the Fourteenth Amendment just what it means in
the state constitutions. It means personal liberty. This
includes more than mere exemption from imprisonment.
I should say that it means exemption or immunity from
unlawful imprisonment or detention of the body, free-
dom to go and come on lawful business or pleasure, com-
monly called the right of locomotion; the right to ac-
quire, hold and convey property; the right to make con-
tracts and to labor in any lawful calling to earn a living ;
to marry and have family. Jjj
In State v. Peel Splint Coal Company 3 the author wrote
as follows: "The word 'liberty/ as here used, does not
mean simply exemption from bodily imprisonment, but
liberty and freedom to engage in lawful business, to make
lawful contracts therein, to the end of earning a liveli-
hood for self and family, and of acquiring and enjoying
property, and of obtaining happiness. The right to con-
tract and be contracted with is indispensable to these in-
dispensable objects. Elsewhere this great right is recog-
nized in the constitutions by the provision that contracts
2 1 Bl. Com. 129.
s 36 W. Va. 856. See Williams v. Fears, 179 U. S. , 21 Sup.
Ct. 129.
THt) FOURTEENTH AMENDMENT.
made in its exercise shall not be impaired. It is a priv-
ilege essential to earn bread and secure happiness. Vain
would be the pursuit of happiness if the right of contract
necessary to secure the bread of life and raiment and
home be taken away. Scarcely any of the great cardinal
rights are more universally recognized and vindicated
under our system, indeed, under all civilized governments,
than this right of contract. A man must have the right
to exercise his skill and talents and dispose of and use
his labor and property in lawful pursuits as to him shall
seem proper. The property right may be violated by
prohibiting its full use to the owner as effectually as by
taking it from him, his ownership being thus damaged."
In State v. Goodwill 4 Judge Snyder, delivering the
opinion of the court, said: "The court, in People v.
Gillson, says: 'The term liberty, as used in the Con-
stitution, is not dwarfed into mere freedom from phys-
ical restraint of the person of the citizen, as by in-
carceration; but is deemed to embrace the right of a
man to be free in the enjoyment of the faculties with
which he has been endowed by his Creator, subject only
to such restraints as are necessary for the common wel-
fare. Liberty, in its broad sense, as understood in this
country, means the right, not only of freedom from serv-
itude, imprisonment or restraint, but the right of one to
use his faculties in all lawful ways, to live and work
where he will, to earn his livelihood in any lawful calling,
and to pursue any lawful trade or avocation. 109 N. Y/
398 ; Field, J., in Butchers' Union Co. v. Crescent City,
* 33 W. Va. 179. 25 Am. St. R. 863 and note. See Re Morgan, 58
Pac. 1071 (full) and Johnson v. Goodyear, 59 Pac. 304 (full).
112 RIGHTS AND PRIVILEGES UNDER
etc., Co., Ill U. S. 755; Association v. Crescent City Co.,
1 Abb. 398. . . The property which every man has
in his own labor, as it is the original foundation of all
other property, so it is the most sacred and inviolable.
The patrimony of the poor man lies in the strength and
dexterity of his own hands; and to hinder him from em-
ploying these in what manner he may think proper, with-
out injury to his neighbor, is a plain violation of this
most sacred property. It is equally an encroachment,
both upon the just liberty and rights of the workman and
his employer, for the legislature to interfere with the free-
dom of contract between them, as such interference hin-
ders the one from working at what he thinks proper, and
at the same time prevents the other from employing whom
he chooses. A person living under the protection of this
government has the right to adopt and follow any lawful
industrial pursuit, not injurious to the community, which
he may see fit. And, as incident to this, is the right to
labor or employ labor, make contracts in respect thereto
upon such terms as may be agreed upon by the parties,
to enforce all lawful contracts, to sue, and give evidence,
and to inherit, purchase, lease, sell and convey prop-
erty of every kind. The enjoyment or deprivation of
these rights and privileges constitutes the essential dis-
tinction between freedom and slavery; between liberty
and oppression. These principles have been fully recog-
nized and announced in many decisions of the Supreme
Court of the United States and other courts." Numer-
ous cases are there cited.
The Civil Rights Act can be justified in every item of
its grant by the clause protecting life, liberty and prop-
THE FOURTEENTH AME\DMLM. U3
erty. It has been held in numerous cases, and seems well
settled, that a law denying the right to contract or acquire
property is an infraction of the right of liberty. "Lib
erty includes the right to acquire property, and that means
to make and enforce contracts." 5 The Civil Rights Act
was made to enforce the Fourteenth Amendment. 6
-"Constitutional liberty means not only freedom of the
citizen from servitude and restraint, but includes the
right of every man to be free in the use of his powers and
faculties, and to adopt such avocation or calling as he may
choose, subject only to the restraints necessary for the com-
mon welfare. Rights of property preserved by all con-
stitutions is right not only to possess and enjoy it, but
also to acquire it in any lawful mode, or by following
lawful pursuit. The property which each citizen has in
his own labor is a common heritage, and as an incident
to the right to acquire other property, the liberty to enter
into contracts by which labor may be employed in such
way as the laborer shall deem most beneficial, and of
others to employ such labor, is necessarily included in the
constitutional guaranty. Right to contract is both a lib-
erty and a property right. If any person is denied the
right to contract and acquire property in the manner in '
which he has hitherto enjoyed it under the law, and which
others are still allowed by law to enjoy, he is deprived of
both the constitutional right of liberty and property." 7
s Ritchie v. People, 155 111. 98, 46 Am. St. R. 315.
Gibson v. Mississippi. 162 U. S. 580 ; Strauder v. West Virginia,
100 U. S. 303.
T Bracewell v. People, 147 111. 66, 37 Am. St. R. 206 ; Harding v.
People, 160 111. 450, .V2 Am. St. R. 344; Ruhstratt v. People, 185
111. 133.
114 RIGHTS AND PRIVILEGES UNDER
The Missouri court said: "The right of life, liberty
and property are grouped together in the same sentence.
They constitute a trinity of rights, and each as opposed
to an unlawful deprivation thereof is of equal constitu-
tional importance. With each, under the operation of a
familiar principle, every auxiliary right, every attribute
necessary to make the principal right effectual and valu-
able in its most extensive sense pass as incidents to the
original grant The rights thus guaranteed are some-
thing more than mere privilege of locomotion; the guar-
anty is the negative of arbitrary power in every form;
which results in deprivation of right. These terms, life,
liberty and property, are representative terms, and cover
every right to which a member of the body politic is en-
titled under the law. Within their comprehensive scope
are embraced the right of self-defense, freedom of speech,
religious and political freedom, exemption from arbi-
trary arrest, right to buy and sell as others may all our
liberties, personal, civil, political in short, all that makes
life worth living ; and of none of these rights can anyone
be deprived except by due process of law. 2 Story, Con-
stitu., 1950." 8
The Supreme Court of the United States, through Jus-
tice Field, has said that the words "life" and "liberty"
cover all rights which the Declaration of Independence
declares all men inalienably endowed with, "life, liberty
and the pursuit of happiness" ; that the words included
"the right of men to pursue happiness, by which is meant
the right to pursue any lawful business in any manner
not inconsistent with the equal rights of others, which
s State v. Julow, 129 Mo. 172.
THE FOL'RTLESTU AMENDMENT. H5
may increase their property or develop their faculties,
so as to give them their highest enjoyment. The com-
mon business and calling of life, the ordinary trades and
pursuits, which are innocuous in themselves, and have
been followed in all communities from time immemorial,
must, therefore, be free in this country to all alike upon
the same conditions. . . The right to pursue them
. . . is an essential element of that freedom which
they claim as a birthright." 9
These principles are reiterated by the Supreme Court
in a later case. 10 The Xew York court holds the same
construction. 11
These copious extracts from actual judgments of the
courts will show how comprehensive and efficient is this
word "liberty" in our state constitutions and the Four-
teenth Amendment. If we did not give it such compre-
hensive import, it would cripple the efficacy of what was
evidently designed to cover vital fundamental rights and
privileges. That word alone embraces almost all the es-
sential rights of the person, and when we add to it the
provision guaranteeing equality before the law and the
protection of life and property, the American ireeman
may boast that, so far as human providence and watch
can attain, the citadel of his rights is strong and secure.
I have given these extracts to show this, and also because
they will be very aidful as outlines of general principles
in the practical daily application of the provisions of the
constitution, state and federal.
o Butchers' Union v. Crescent City, 111 U. S. 757.
10 Allgeyer v. Louisiana, 165 U. S. 578.
"People v. Warden, 157 N. Y. 116, 43 L. R. A. 264.
]16 RIGHTS AND PRIVILEGES UNDER
CIVIL EIGHTS ACT.
Under authority of the Fourteenth Amendment Con-
gress enacted the statute called The Civil Rights Act. 12
It gives every person within the national jurisdiction "the
same right' ' to contract, sue, give evidence, have the ben-
efit of all laws for security of person or property, and to
acquire and transfer property, "as is enjoyed by white
persons." The rights here spoken are most essential.
Its moving occasion was undoubtedly the discrimination
made and actually existing in some of the states against
colored people in the matters of contracting, holding and
conveying property, suing and giving evidence. It might
seem that this act would fall under the ban placed by the
Supreme Court in the Civil Rights Cases upon another
act, the act admitting colored persons into inns and the-
atres, on the score that it is original, general legislation,
such as is appropriate to state legislatures, and not to
Congress; but, as just stated, there were actual laws dis-
abling colored people from the enjoyment of the rights
above mentioned, and, therefore, the Civil Rights Act is
congressional legislation actually called for to counteract
and neutralize existing state legislation deprivative of
rights protected by the amendment, and not general leg-
islation anticipatory of problematical hostile state legis-
lation, and, therefore, not like the act condemned in the
Civil Rights Cases.
While slavery prevailed these civil rights were denied to
slaves, and necessarily so, because they are rights of self-
dependent freemen, not harmonious with slavery, and
12 Rev. St. 1977, 1978.
THE FOURTEENTH AMENDMENT. H7
would be prejudicial to its stability; and furthermore
such rights were not essential to slaves, because their mas-
ters were bound to support them, and they needed
no right to contract or have property. They had no
civil rights, no right to sue in any court any
person. 13 They could need only right to give evi-
dence for self-protection, or laws for protection of
person; but while laws did protect them against murder,
mayhem or cruel chastisement, slavery would naturally
exclude the full law of personal protection. When, how-
ever, slavery was eradicated, root and branch, by the Thir-
teenth Amendment, it became essential and indispensable
that these rights should be accorded the former slaves.
Without these great fundamental privileges the freeman
is not a real freeman. He can not without them earn
the bread of life for himself and family, nor find hap-
piness. Without them vain would be his pursuit of it.
These rights are privileges of the highest cast. Their con-
cession was the main object of the Fourteenth Amendment.
It was designed to destroy and prevent state laws denying
them, and enforce their recognition by the states. One be-
reft of the great rights of giving evidence, contracting,
suing, having the benefit of laws for the protection of per-
son and property, and right to acquire and transfer prop-
erty, has in no sense the equal protection or benefit of the
law, and would be subject to the most hurtful discrimina-
tion as to indispensable privileges and rights. Besides,
this deprivation would be a badge of humiliation and de-
gradation before the eyes of his fellows. He would wear
the mark of Cain. Such rights, under the Civil Eights
Ar-t, belong to all freemen.
is Peter v. Hargrave, 5 Grat. 12.
118 RlQHTti AND PRIVILEGED UNDER
Chapter 10.
PROPERTY. ,
The Fourteenth Amendment protects property, as well
as life and liberty, against undue state action. Its impor-
tance as the stay of life and the comfort of the liberty o
a freeman need not be here enlarged upon. It is next
in importance only to life and liberty. The same general
principles above stated as applicable to life and liberty
here also apply, and will not be repeated.
What is Property? A definition is hardly necessary.
Anything in which the law allows ownership by man is
property under this amendment. It may be real, personal
or mixed; it may be corporeal or incorporeal; a fran-
chise, contracts, ready money, a demand for money enforce-
able by action, based on contract or tort, in short, anything
capable of beneficial ownership. It is no matter what the
estate is, in fee simple, fee tail or conditional, for life,
years, at suffrance or will. Is it property substantial ?
That is enough. It must, however, be vested property,
"lawfully vested," recognized by law to be protected un-
der federal or state constitution. 1
i N. Orleans v. Water Company, 142 U. S. 79 ; Taylor v. Beckharo,
20 Sup. Ct. 890, 178 N. S. 548;' Essex, etc., Skinkle, 140 U. S. 334.
Ttlti FOURTEENTH AMENDMENT. H9
Reputation or Character Is this protected by the
amendment ( This is, according to Blackstone, a part of
"personal security." 2 The amendment protects life, lib-
erty, property, but reputation is not named. Does it savor
of any of the things protected in letter? Can this great
attendant of the person be considered as neglected by
Magna Charta, whether found in state or federal consti-
tutions ? Is it a part of life, or liberty, or property ? Like
them it follows the person. Shakespeare makes it savor
of life itself, for he makes Othello ask,
What dost thou mean?
I ago responds:
Good name, in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse, steals trash ; 'tis something, nothing,
'Twas mine, 'tis his, and has been slave to thousands;
But he who filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.
1 would not think that reputation savors of life, so as to
be protected as part of life, though dear as life itself. I
would make it to savor of property, though Shakespeare
does not rank it with property, because rising in sacred-
ness above it, as it does in the eye of divine philosophy,
in religion and in the moral code. Whether it falls at
all under the amendment is a query under the case of
Abbot v. National Bank, decided in the United States Su-
preme Court December 11, 1800.
Public Office. It is not property. It a mere trust
held by the incumbent for the public benefit, and the exer-
cise of governmental power in removal from office does
2 1 Bl. Com. 129; Morton v. Nebraska. 21 Wall. fiflO.
120 RIGHTS AND PRIVILEGES UNDER
not violate the Fourteenth Amendment. A very impor-
tant case has just been decided by the United States Su-
preme Court, Taylor v. Beckham. 3 Taylor was elected
governor of the state of Kentucky over Goebel, and Mar-
shall was elected lieutenant governor over Beckham, as
declared upon the face of the returns by the state canvass-
ing board; but a contest was instituted by Goebel before
the state legislature pursuant to the state constitution, to
contest Taylor's election, and this contest resulted in a dec-
laration by the legislature that Goebel had been elected
governor and Beckham lieutenant governor. Taylor hav-
ing taken the oath of office was exercising that office, and
Goebel having in the meantime died, Beckham, having
taken the oath of office as governor, he instituted in a
state court an action of quo warranto, claiming that
Taylor was usurping the functions of governor, without
lawful right, and claiming that he, Beckham, was the
lawful governor, and seeking to have Taylor's title to
the office adjudicated to be bad. The case went to the
Kentucky Court of Appeals, and was decided in Beck-
ham's favor, and thence went to the United States Su-
preme Court.
So far as concerns this work, the case involved the
question whether the action of the Kentucky legislature
and court deprived Taylor of office without due process
of law in violation of the Fourteenth Amendment. Both
the state and the United States Supreme Courts held
against that contention, deciding that a public office Is
not property, and deciding further that tHe action of the
state legislature, under the constitution and laws of Ken-
3178 U. S. 548, 20 Sup. Ct. 899; Taylor v. Beckham (Ky.), 49
L. R. A. 258.
77/tf FOURTEENTH. AMENDMENT. 121
tucky, in passing upon the contested case before it, was
final, as a court of sole and exclusive jurisdiction in that
matter under state constitution and law, touching a con-
test for a state office. The state court used this language
in its deliverance of judgment: "The office of governor
being created by the constitution of this state, the instru-
ment creating it might properly provide how the officer
was to be elected, and how the result of this election
should be determined. The provisions of the Constitu-
tion on this subject do not abridge the privileges or
immunities of the United States. Such an office is not
property, and in determining merely the result of the
election, according to its own law, the state deprives no
one of life, liberty or property. In creating this office
the state had a right to provide such agencies as it saw
fit to determine the result of the election, and it had a
right to provide such a mode of procedure as it saw fit.
It is wholly a matter of state policy. The people of the
state might, by an amendment to their constitution, abol-
ish the office altogether. The determination of the re-
sult of an election is purely a political question, and if
such suits as this may be maintained, the greatest disor-
der will result in the public business. It has always been
the policy of our law to provide a summary process for
the settlement of such contests, to the end that public
business shall not be interrupted; but if such a suit as
this may be maintained, where will such a contest end ?"
The Supreme Court of the United States, through
Chief Justice Fuller, said: "It is obviously essential
to the independence of the states, and to their peace and
tranquillity, that their power to prescribe the qualifica-
122 RIGHTS AND PRIVILEGES UNDER
tion of their own officers, the tenure of their offices, the
manner of their election, and the grounds on which, the
tribunals before which, and the mode in which, such
elections may be contested, should be exclusive and free
from external interference, except so far as plainly pro-
vided by the Constitution of the United States. And
where controversies over the election of state officers have
reached the state courts in the manner provided by, and
been there determined in accordance with, the state con-
stitutions and laws, the cases must necessarily be rare in
which the interference of this court can properly be in-
voked." The Chief Justice further said that "The view
that public office is not property has been generally en-
tertained in this country," citing cases, and went on to
say: "The decisions are numerous to the effect that pub-
lic officers are mere agencies or trusts, and not property
as such. Nor are the salary and emoluments property,
secured by contract, but compensation for services ac-
tually rendered. Nor does the fact that a constitution
may forbid the legislature from abolishing a public of-
fice or diminishing the salary during the term of the
incumbent change its character or make it property.
True, the restrictions limit the power of the legislature
to deal with the office, but even such restrictions may be
removed by constitutional amendment. In short, gen-
erally speaking, the nature of the relation of a public
officer to the public is inconsistent with either a property
or a contract right," citing numerous cases.
The above case is another of innumerable instances
in the past and to come where the Fourteenth Amend-
ment has been and will be claimed to be a panacea for
THE FOURTEENTH AUEXDUEM'. 123
all imaginable wrongs done by state action. I can not see
how, with any show of plausibility, so far as a federal
question is concerned, it could be claimed that the fed-
eral government had anything to do with the decision of
an election for governor of a state. If the federal gov-
ernment can thus interpose and decide who are entitled
as state officers to administer its government, then there
is not a vestige of state sovereignty, autonomy or self-
government left to the states. The Fourteenth Amend-
ment means no such thing. It would be a perversion of
its true intent. The United States Supreme Court has
in no case lent countenance to such a contention.
IXDEPEXDEXT'E OF STATE GOYERXMEXTS.
In the case of Taylor v. Beckham, just cited, the su-
preme court lays down a cardinal principle of overrul-
ing importance, ever to be observed as indispensable to
the independence of the state governments. The court says
that the guarantee of republican form of government in
the federal Constitution does not give the Supreme Court
jurisdiction to review action of the highest court of a
state sustaining the election of governor by state legis-
lation under the state constitution, on the ground that
such decision denies the right of the people to choose their
own officers, where the legislative, executive and judicial
departments of the state are peacefully operating by the
orderly and settled methods prescribed by state funda-
mental law, notwithstanding there may be difficulty and
disturbances arising from the pendency of election con-
tests.
124 RIGHTS AND PRIVILEGES UNDER
Waste of Natural Gas. The common law maxim is,
Cujus est solum, ejus est usque ad coelum. This gives
to the owner of the soil everything beneath the surface,
natural gas and oil in place being part of the freehold,
and thus belong to the owner of the surface. That ow-
ner may bore into the surface, and the gas or oil he
gets, though it may have come from another man's land,
is absolutely his, without right of reclamation in his
neighbor. Why, then, can not the owner waste, as well
as sell or give away, his gas ? But this property in these
fugacious subjects, gas and oil, is not that absolute
property which the owner has in the fixed soil. There
is a difference. He owns under this maxim the water
flowing in streams through his land, but owns it only in
a sense. He may use it as he really needs it, but can
not waste it likely, can not deter it from going to a neigh-
bor for his comfort. The state may prevent him. So
gas may be actually reduced to possession by boring
through the surface by the surface owner; this can not
be prevented; his right of property in the gas goes thus
far. If he does not do this, he has no shadow of right
to the gas in another's land. We know that gas and oil
are stored in deposits in the earth, and that wells bored,
if they strike the reservoir, will bring up this gas and
oil. We know too that the gas is fugitive, comes from the
land of others to the vents produced by the wells. It be-
longs not to one, but to all, in a sense; not so far as to
prevent the owner of a given farm from reducing it to
possession for his reasonable use, like animals ferae na-
turae,, but so far as to say that such owner should not be
allowed to wantonly waste it to the injury of another.
THE FOURTEENTH AMENDMENT. 125
So use your owu that you do not injure another. The
state can prevent your so using your land that you shall
not burn the property of another or take from him light
and air. The interest of adjoining proprietors is such as
to call for a restraint, just as it would prevent the waste
of flowing water.
But there is a stronger reason to warrant legislation
found in some of the states against the waste of natural
gas, the public interest in its reasonable preservation for
public consumption. To justify this state interference
natural gas has been likened to animals ferae naturae.
By common law they belonged to no man. Though on
the soil of an owner, he has no more right to them than
another. He may prohibit me from coming upon his
land to take them, but he no more owns them than I.
He may take them for his reasonable use; so may I.
They really belong to the public. They have been so
recognized by man from the moment when God gave man
dominion over them, as told in Genesis. The Roman,
Greek and common law made these animals separate from
the soil on which they chanced to be for the time. There
never has been a time when the state did not exercise a
control, a power of police regulation over these animals,
or some of them, called game, to save them from rapid
destruction for public good. So with gas. The owner
may take it for his actual use, but the state may prevent
its waste, for public weal, to prevent its exhaustion.
Over running water, over wild animals, over gas, there
i> police power in the state, based on the same prin-
ciple, public welfare, only to be exercised in different
modes, according to the differing nature of the matter.
126 RIGHTS AND PRIVILEGES UNDER
In Ohio Coal Company v. Indiana 4 Justice White
gives us a learned discussion of this important subject,
to which I call special attention for the underlying prin-
ciples. He asserts the right of the state to prevent such
waste on the ground that it may regulate one man's use
of his property in order that he may regulate one man's use
He says : a On the other hand, as to gas and oil, the sur-
face proprietors within the gas field all have equal right
to reduce to possession the gas and oil beneath. They
could not be absolutely deprived of this right, which
belongs to them, without a taking of private property.
But there is a coequal right in them all to take from a
common source of supply the two substances, which in
the nature of things are united, though separate. It fol-
lows from the essence of their rights, and from the sit-
uation of the things as to which it can be exerted, that
the use by one of his power to seek to convert a part of
the common fund to actual possession may result in an
undue proportion being attributed to one of the posses-
sors of the right, to the detriment of others, or, by the
waste by one or more, to the annihilation of the rights
of the remainder. Hence it is that the legislative power,
from the peculiar nature of the right and the objects
upon which it is to be exercised, can be manifested for the
purpose of protecting all the collective owners by securing
a just distribution, to arise from the enjoyment by them
of their privilege to reduce to possession, and to reach the
like end by preventing waste." The case holds that such
* 177 U. S. 90. See State v. Ohio Oil Co., 150 Ind. 21, 47 L. R. A.
627.
TED FOURTEENTH AMENDMENT. 127
a statute does not deprive one of property without due
process of law contrary to the Fourteenth Amendment.
Game Preservation. How do you justify the game laws
found in all the states ? Are not the deer, pheasants,
quail, turkeys and fish on my land my property ? How can
you prevent my taking or wantonly destroying them at
any season in any way? Genesis says that God gave do-
minion over them to man. This means a common heri-
tage. They are separated from the land; they are not
appurtenant to it. The dawn finds them on my land;
the meridian, on yours; and the evening, on another's;
and I have no right to reclaim them. Greece, Rome,
England treated them as not individual property, but as
belonging to the public. Man parcelled out earth into in-
dividual, exclusive ownership; but all authorities say
he did not parcel out these fugitive things of wild nature.
They belong to the state in trust for general weal, and
this brings them under state police power of restraint and
regulation. 5 This is fully sustained by the practice of
centuries in Europe and America. All states have laws to
prevent the extinction of game. The Fourteenth Amend-
ment did not nullify this power. This doctrine is sus-
tained in Geer v. Connecticut 6 in an interesting opinion
by Justice White. In that case the state act was sus-
tained, though it prohibited at all times the killing of
certain game for transportation out of the state, but did
not make the mere killing of the game unlawful.
State Law as to Contracts and Property. Notwithstand-
ing the generality of the principles above stated as to re-
s Lawton v. Steel, 152 U. S. 138; Stevens v. State, 89 Md. 669.
1G1 U. S. 519. See In re Eberle, 98 Fed. 295.
128 RIGHTS AND PRIVILEGES UNDER
straint upon state action infringing the right of contract
and acquisition of property, it is to be remembered that
the states under the police power, which is not taken away
from them by the Fourteenth Amendment, may pass
laws to regulate the validity and formation of contracts,
wills, conveyances and the acquisition and disposal of
property. Such laws, prohibiting certain contracts, un-
less infringing on interstate commerce or restrictive of
the federal government in contracting in the performance
of its appointed functions, are not repugnant to the
amendment. 7
INTEKSTATE COMMEKCE.
Speaking of the interstate commerce clause, which gives
Congress power "to regulate commerce with foreign na-
tions, and among the several states", it is not intended in
this work to discuss that vastly important clause, nor re-
fer to it except incidentally as it bears sometimes on mat-
ters discussed under the Fourteenth Amendment. It may
be appropriately said, however, as it bears somewhat on
the amendment, as just suggested, that the commerce
clause is an affirmative, positive grant by the states to
Congress in the original Constitution, of absolute and
plenary power to legislate upon such commerce in all
things and respects essentially affecting it or that may
affect it, unlike the Fourteenth Amendment, which is a
mere prohibition upon the states, not a grant of original
jurisdiction. In the case of commerce, Congress has power
of original and exclusive legislation ; under the Fourteenth
TBudd v. New York, 143 U. S. 517; Hooper v. California, 155
Id. 648; Opinion of Justices in 163 Mass. 589.
TUB FOURTEENTH AMENDMENT. 129
Amendment its powers do not cover right of primary leg-
islation upon the subjects mentioned in it, to prescribe
a full code of enactment upon the multitudinous matters
of privilege, immunities, life, liberty and property, but
only such restrictive legislation as may veto undue leg-
islation or action by the states on those subjects. As com-
merce largely concerns the states, the federal decisions
seem to say that the commerce clause does not wholly bar
out state legislation affecting it by virtue of the police
power, for instance; and states may lawfully legislate
thereon in so far as the commerce affects them, but when
Congress passes an act of regulation touching such com-
merce, it excludes after conflicting state legislation, and
supplants and nullifies antecedent conflictive state legisla-
tion, because that which is not supreme must yield to that
which is supreme. "The cases in which legislation by
Congress supersedes that of states without specific provi-
sion to that effect, are those in which the same matter is
the subject of legislation by both. 8
Trusts and Monopolies. There are innumerable deci-
sions of the Supreme Court upon this commerce clause.
But what has it to do with the Fourteenth Amend-
ment ? That amendment does not grant, but defends
"liberty" against undue state action. It is later than
the commerce clause. Does it guarantee absolute lib-
erty of contract? Does it repeal old law forbidding
certain contracts, or forbid new law condemning such
8 Gibbons v. Ogden, 9 Wheat. 1 ; In re Debs, 158 U. S. 564 : Mobile
v. Kimball, 102 Id. 691, 697; Morgan v. Louisiana, 118 U. S. 455,
465: Covington Bridge Co. v. Kentucky, 154 U. S. 209; Davis v.
Season, 133 U. S. 333; Addyston Pipe Co. v. U. S. 175 U. S. 211.
130 RIGHTS AND PRIVILEGES UNDER
contracts as may be considered hurtful to the public?
Does it defend trusts, contracts made by trusts hurtful
to interstate commerce, so that Congress can not prohibit
them? It certainly does not do this; for the amend-
ment does not at all restrain Congress it only restrains
states; but Amendment Five, in the same words, restricts
the power of the nation. In a late case the Supreme
Court concedes that this word "liberty" found in both
amendments is not confined to mere liberty of body, but
among others includes a right to enter into certain clas-
ses of contracts to enable the citizen to carry on business ;
but it was held that it does not prevent Congress from pro-
hibiting contracts in the carrying on of commerce, which
directly and substantially regulate commerce among the
states, or agreements or combinations which directly oper-
ate, not alone on manufacture, but on the sale, transpor-
tation and delivery of articles of interstate commerce
by preventing or restricting their sale, and tend to restrain
the manufacture, purchase, sale or exchange of articles
among the states, and enhance the value of such articles,
and that when the effect of such contract or combination,
among dealers in a commodity is enhancement of its price,
it restrains trade in it, even tho-ugh contracts to buy it at
the enhanced price are being made. The court held that
the contracts violated the act a to protect trade and com-
merce against unlawful restraints and monopolies," July
2, 1890, Chapter 647. ("Antitrust Law.") 9 . . . The
case cited holds that the nation has no power over com-
merce done wholly within the state, nor over monopo-
Addyston Pipe Co. v. U. S., 175 U. S. 211. See also Addyaton
Pipe Co. v. U. S., Dec. 1899, U. S. Sup Court; Williams v. Fears,
!79 u. S. , 21 Sup. Ct. 129.
THE FOURTEENTH AMENDMENT. 131
lies or combinations injuring it. The states possess power
to regulate, protect and defend infra-state commerce, and
can pass healthful legislation to prevent unlawful combi-
nations, monopolies or trusts under its police power, and
consequently may, as Congress can in inter-state com-
merce, condemn any contract which prejudices it, without
violating liberty as protected by the Fourteenth Amend-
ment. Even if the police power were for the first time
applied to forbid certain contracts or agreements detri-
mental to public welfare, it would not violate the amend-
ment because a contract once not hurtful and lawful, may,
in course of time, become hurtful, and then be prohibited.
But the truth is this question does not arise as to laws to
protect the public against monopolies, agreements be-
tween persons or corporations having effect to enhance the
price to the public of necessary articles or labor, including
buying them up, "cornering" them and reselling them at
great price; for centuries ago the common law and old
statutes branded as indictable offences these things, call-
ing them "forestalling," "regrating" and "engrossing."
Forestalling is "the buying or contracting for any mer-
chandise or victual coming in the way to market ; or dis-
suading persons from bringing their goods or provisions
there; or persuading them to enhance the price of them
when there." Regrating is "the buying of corn or other
dead victual, and selling it again in the same market,
or within four miles of the place." Engrossing is "the
getting into one's possession by buying up of large quanti-
ties of corn or other dead victuals with intent to sell them
again. And so the total of engrossing of any other com-
modity, with intent to sell it at an unreasonable price, is
132 RIGHTS AND PRIVILEGES UNDER
an offence indictable and finable at common law. 10 Mr.
Bishop says 11 that these offences exist today where the
common law prevails not supplanted by statute, and that
remedies against combinations exist under this old law.
He says the old offence of engrossing, that is, buying up
by monied men of vast quantities of necessaries and sell-
ing at large prices is an offence at common law, and those
who do so are enemies of the race and deserve punishment
as thieves and robbers. I do not say that all those things
would now be offences, as in the days when necessaries
were only allowed to be sold in market overt; but I do
say that agreements and combinations to enhance prices
of them, or having that natural tendency, are offences
against the common law above stated. Mr. Bishop asserts,
as I do, the efficiency of the common law to redress evils
of the present day in hurtful trust combinations. A
Michigan decision so holds. 12 If the legislatures fail to
pass statutes against them, the common law largely ap-
plies for remedy.
I refer to this common law to show that the law from
ancient days condemned these combinations, and pun-
ished them as public offences. It also condemned every con-
tract in restraint of trade, as agreements not to carry on
the same business as another at any place. In 44 Eliza-
beth a grant of a monopoly to make playing cards was
held void, because a monopoly against common law and
old acts of parliament. In 1610 James I. forbade anyone
to ask a monopolistic grant. 13
10 4 Blackstone's Com. 158.
II New Or. L. 522.
12 Raymond v. Levitt, 46 Mich. 450.
is Brewer v. Marshall, 19 N. J. Eq. 537; Newburyport Co. v.
City, 103 Fed. 584.
'I lit) FOURTEENTH AMENDMENT, 133
A statute of James declared all grants of monopolies
void. 14 Therefore, before any of our state constitutions
or the amendment were known this prohibition of the law
existed, and it is utterly untenable to contend that any
statute passed to prevent such combinations, reasonable
to the end, can not be passed consistently with constitu-
tional provisions prohibiting deprivation of liberty or
property without due process of law. A late case held an
Act of Missouri preventing pools, trusts and conspiracies
to control prices not violative of the Fourteenth Amend-
ment as depriving of liberty of contract. Seventy-three
insurance companies combined to regulate, fix and control
the premium or price of fire insurance, and their right
to do business in the state was declared forfeited for so
doing. The case decides that the constitutional guaranty
of life, liberty and property does not include right of in-
surers to agree among themselves to maintain rates ; that
an insurance company can not acquire a vested right by
complying with existing police regulations, which can not
be affected by subsequent change of law. State v. Fire-
men's Ins. Co., 45 L. R. A. 363.
It is not within the boundary of this work to define
what combination is one in restraint of trade, or against
public policy, or what may be legislated against. This
is largely within the legislative judgment. The subject
will be found elaborately discussed in cases cited in the
footnote. 15
i* 7 Bacon's Abridgmt. 22.
i- U. S. v. Addyston, 54 U. S.App. 723, 85 Fed. 271, 29 C. C. A.
141, 175 U. S. 211 ; U. S. v. Trans-Missouri, 106 U. S. 290; U. S. v.
Joint-Traffic Association, 171 U. S. 558; Transportation Co. v. Pipe
Line Co., 22 W. Va. 600. Full note, 1 Am. and Eng. Dec. Eq. 604.
McMullen v. Hoffman, 174 U. S. 639.
134 RIGHTS AND PRIVILEGES UNDER
These trusts and monopolies have never been favored in
law. There was an agreement in 1844 between owners
of boats on canals to regulate freight by uniform scale
to be fixed by a committee and divide profits proportionally
to boats used by the trust parties, and binding members
not to engage in the business outside the association. Held
that the tendency was to increase rates of freight and re-
press competition, and that the agreement was void. 16
A trust combination was held void in State v. Standard
Oil Company. 17 The great combination known as "The
Sugar Trust" was held void, and it was decided that such
an unlawful agreement would justify the forfeiture of
the charter of a corporation engaging in it. 18 The judg-
ment in the case was affirmed on the theory that the com-
bination was a contract ultra vires, and therefore unlaw-
ful, but the forfeiture feature was not insisted upon. 19
The act of Congress, 2 July, 1890, "to protect trade and
commerce against unlawful restraints and monopolies,"
is broad: "Every contract, combination in the form of
trust or otherwise, or conspiracy in restraint of trade or
commerce, among the several states, or with foreign
nations, is hereby declared to be illegal."
I insert as a sample the Xew York act:
CHAPTER 383 OF THE LAWS OF 1897.
"SECTION 1. Every contract, agreement, arrangement
or combination whereby a monopoly in the manufacture,
leStanton v. Allen, 5 Denio, 434.
IT 49 Ohio St. 137.
is People v. Sugar Refining Co., 54 Hun, 354.
i 121 N. Y. 582.
THE FOURTEENTH AMENDMENT. 135
production or sale in this state of any article or commodity
of common use is or may be created, established or main-
tained, or whereby competition in this state in the supply
or price of any such article or commodity is or may be
restrained or prevented, or whereby for the purpose of
creating, establishing or maintaining a monopoly within
this state of the manufacture, production or sale of any
such article or commodity, the free pursuit in this state
of any lawful business, trade or occupation is or may be
restricted or prevented, is hereby declared to be against
public policy, illegal and void.
"SECTION 2. Every person or corporation, or any offi-
cer or agent thereof who shall enter into any such contract
is guilty of a misdemeanor, and on conviction
thereof shall, if a natural person, be punished by a fine
not exceeding $5,000, or by imprisonment for not longer
than one year, or by both such fine and imprisonment,
and, if a corporation, by a fine not exceeding $5,000.
"SECTION 3. The attorney-general may bring an ac-
tion in the name and in behalf of the people of the state
against any person, trustee, director, manager or other
officer or agent of a corporation, or against a corporation,
foreign or domestic, to restrain and prevent the doing in
this state of any act herein declared to be illegal, or any
act in, toward or for the making or consummation of any
contract, agreement, arrangement or combination herein
prohibited, wherever the same may have been made.
"SECTION 7, of the Stock Corporation Law, which pro-
vides : ^o stock corporation shall combine with any other
corporation or person for the creation of a monopoly or
the unlawful restraint of trade or for the prevention of
competition in any necessary of life.' '
136 RIGHTS AND PRIVILEGES UNDER
Monopoly Grants. It is aside from the purpose of this
work to discuss this subject ; but it is not improper to say,
in short, that the legislature of a state, unless forbidden
by its constitution, may grant to persons or corporations
sole and exclusive right to carry on a business, and such
grant is deemed a contract within the meaning of that
clause of the federal Constitution prohibiting a state from
making or enforcing any law which impairs the obligation
of contracts ; and therefore a repeal, or hurtful modifica-
tion, of such grant by legislative act would be repugnant
to that provision of the federal Constitution. I think,
too, that where such exclusive grant exists, it would be
not merely a contract, but a vested property right, and
so any invasion of it without due process of law, by any
kind of state action, would be repugnant to the Fourteenth
Amendment. A grant of such exclusive privilege by a
municipal corporation would be likewise a contract and
property, as if granted by the legislature, provided that
the power to make such a grant is expressly vested in
the municipality by its charter or state law; for it has
no such implied power. 20 But we must remark with
emphasis that such exclusive grants are, if not odious,
certainly strongly disfavored by the law, and nothing but
20 Dartmouth College v. Woodward, 4 Wheat. 519; Slaughter
House Cases, 16 Wall. 36; Mason v. Bridge Co,, 17 W. Va. 396;
Grand Rapids v. Grand Rapids, 20 Am. and Eng. Corp. Cas. 270,
291 ; Parkersburg Gas Co. v. Parkersburg, 30 W. Va. 435, 4 S. E. R.
650; Electric Co. v. Traders Co., 47 W. Va. , 35 S. E. 994; New
Orleans Water Co. v. Rivers, 115 U. S. 674; St. Tammany Water-
works v. N. O. Waterworks, 120 U. S. 64 ; N. O. Gas Co. v. Louisiana
Light Co., 115 U. S. 650, 10 Am. and Eng. Corp. Cas. 639; Louis-
ville Gas Co. v. Citizens Gas Co., 115 U. S. 683, 10 Am. and Eng.
Corp. Cas. 671; Detroit Street R. R. Co. v. Railway Co., 171 U. S.
48.
THE FOURTEENTH AMENDMENT. 137
express words conferring such exclusive privileges will
confer them. The presumption is always strong that the
legislature, or the municipal corporation, which is claimed
to have granted such monopoly, did not intend to do so,
did not intend to part with the sovereign right of control
over such matters, did not intend to part with power so
essential to the public good, and it must be clear beyond
all question that the act claimed to vest such exclusive
right does in fact do so in letter. 21 A general act forbade
the grant of a ferry within half a mile of another. Held
that the first grant was no contract preventing another. 22
21 Charles River Bridge v. Warren Bridge, 11 Pet. 420; Cooley,
Const. Lim. 394; Syracuse Water Co. v. City, 116 N. Y. 167, 29
Am. & Eng. Corp. Cas. 307; Parkersburg Gas Co. v. Parkersburg,
30 W. Va. 435, 4 S. E. 650; Wheeling Bridge Co. v. Bridge Co.
34 W. Va. 155, 138, U. S. 287; Lehigh Water Co. v. Easton, 121
U. S. 391; Power v. Village, 10 Am. & Eng. Corp. Cas. 54.
22 Williams v. Wingo, 20 Sup. Ct. 793, 177 U. S. 601.
138 RIGHTS AND PRIVILEGES UNDER
Chapter II.
DUE PKOCESS OF LAW.
We must note that the federal and state constitutions
do not unconditionally say that no person shall be de-
prived of life, liberty or property under any circum-
stances. If they did, the state and federal governments
would be utterly powerless to execute their functions;
bereft of sovereign powers, there would be no sanction to
protect life, liberty or property, or enforce any law. The
American colonies, when they became free at the close of
the Revolution, were free republics, sovereignties, possess-
ing all the powers of government over their territory
which before had been vested in the British king and
parliament a power which was omnipotent. 1 They
could, therefore, do anything with the inestimable rights
of life, liberty and property which they might choose,
and could do so now were it not for the restraints and
prohibitions upon their power imposed by their own and
the national constitutions. This omnipotent power to in-
vade life, liberty and property is restrained by the con-
York v. Miller, 11 Peters, 102; Lansing v. Smith, 21 Am.
D. 89.
THE FOURTEENTH AMENDMENT. 139
stitutional provision that the states shall not take them,
nor shall the nation, without due process of law. This
is the badge of American freedom. These restraints are,
as regards the states, exceptions from their original in-
herent, supreme, sovereign powers, rather than grants of
powers. With Henry VIII or Louis XIV, or others of
the many tyrants who have cursed the peoples, and who
are pilloried in history as dark and sombre faces in the
galaxy of infamy, it was simply "L'etat c'est moi," "I am
the State," and life ended at their mere personal mandate ;
but with us, and in England now, the only king that can
issue the death warrant is "Due process of law" the voice
of the law of the land, the will of the people spoken under
the majesty of law. It becomes, then, all the time, all
over the Kepublic, time and time again, indispensable to
ascertain what is this "due process of law" which alone
makes the mighty warrant to justify government in de-
stroying liberty or property, and even life.
What is Due Process of Law? None but general defini-
tion is possible; but copious extracts from authority of
general statements will, in almost" every case, solve the
question. Justice McKenna said: "What it is for a state
to deprive a person of life, liberty or property without
due process of law, is not much nearer to precise definition
today than it was said to be by Justice Miller in David-
son v. New Orleans, 96 U. S. 97. In that case the court
suggests the difficulty and danger of attempting an author-
itative definition of what it is for a state to deprive a per-
son of life, liberty or property without due process of law,
within the meaning of the Fourteenth Amendment, and
140 RIGHTS AXD PRIVILEGES UNDER
holds that the annunciation of the principle which governs
each case as it arises is the better mode of arriving at a
sound decision." 2 In the Davidson Case it is held that
"due process of law" and "law of the land" are the same
in meaning.
The great constitutional lawyer and statesman, Daniel
Webster, gave a general definition of due process often
quoted : "By the law of the land is most clearly intended
the general law, which hears before it condemns; which
proceeds upon inquiry and renders judgment only after
trial. The meaning is that every citizen shall hold his
life, liberty, property and immunities under the protection
of general rules which govern society. Every thing which
may pass under the form of an enactment is not law of the
land." 3 As applied to matters of judicial nature this
definition and the one given in 2 Kent's Commentaries, 4
are correct. Kent's definition is as follows: "The better
and larger definition of due process of law is that it means
law in its regular course of administration through the
courts of justice."
Coke says that "law of the land" is that which is ac-
cording to "the old law of the land ; that is, by the due
course and process of law." 5
"It is sufficient to say that by due process of law is
meant one which, following the forms of law, is appropri-
ate to the case and just to the parties to be affected. It
must be pursued in the ordinary mode prescribed by law :
2 Orient Ins. Co. v. Daggs, 172 U. S. 557.
a Dartmouth College Case, 4 Wheat. 581.
* 2 Kent's Com. 13.
6 Coke's Inst. 46.
THE FOURTEENTH AMENDMENT.
it must be adapted to the end to be attained, and wherever
it is necessary for the protection of the parties, it must
give them an opportunity to be heard respecting the just-
ness of the judgment sought. The clause, therefore,"^ 1
means that there can be no proceeding against life, liberty
or property which may result in deprivation of either,
without the observance of those general rules established
in our system of jurisprudence for the security of pri-
vate rights." 6
"The good sense of mankind has at length settled down
to this: that they (the words "due process of law") were
intended to secure the individual from the arbitrary ex-
ercise of the powers of government, unrestrained by the
established principles of private right and distributive
justice." 7
Judge Tucker said: "The meaning of these words is
that no man be deprived of his property without being
heard in his own defense." 8
"Due process of law undoubtedly means in the due
course of legal proceedings according to the rules and
forms established for the protection of private right,"
said Judge Edwards. 9 This is an excellent short defi-
nition. It requires only what is demanded by the usual
general law according to the nature of the particular mat-
ter in hand, but that it does require, and will not toler-
ate unusual or arbitrary action.
Hagar v. Reclamation Dist. Ill U. S. 701; Marchant v. Penn.
R. R. Co. 153 U. S. 387.
7 Johnson, J. in Columbia Bank Okely, 4 Wheat. 235.
sKinney v. Beverly, 1 Hen. & Munf. 531.
Weatervelt v. Gregg, 12 N. Y. 209.
142 RIGHTS AND PRIVILEGES UNDER
"A general public law equally binding on all." 10
"Due process of law is process due according to the law
of the land. This process in the states is regulated by
the law of the state. Our power over that law is only
to determine whether it is in conflict with the supreme
law of the land that is, with the Constitution or laws
of the United States, or with any treaty." 11
^Justice Matthews said: "Due process of law in the
latter (fifth) amendment refers to that law of the land
which derives its authority from the legislative powers
conferred on Congress by the Constitution of the United
States, exercised within the limits therein prescribed,
and interpreted according to the principles of the common
law. In the Fourteenth Amendment, by parity of reason-
ing, it refers to that law of the land, in each state, which
derives its authority from the inherent and reserved pow-
ers of the state, exercised within the limits of those fund-
amental principles of liberty and justice which lie at the
base of all our civil and political institutions, and the
greatest security for which resides in the right of the
people to make their own laws and alter them at their
pleasure." 12
When a party has been fully heard in the regular course
of judicial proceedings, an erroneous decision of a
state court does not deprive the unsuccessful party of his
property without due process of law. 18
10 Bank v. State, 24 Am. D. 517, and note 537.
"Walker v. Sauvinet, 2 Otto, 90.
izHurtado v. People, 110 U. S. 516.
isLaidley v. Land Co. 159 U. S. 103; Marchant v. Pa. R. R. Co.
153 Id. 380.
THE FOURTEENTH AMENDMENT. 14$
The very words "due process of law" are self-explan-
atory, a definition in themselves. In Anderson v. Henry 14
the author said in delivering the court's opinion, holding
a distress warrant for rent to be due process, and consis-
tent with the Fourteenth Amendment : "That amendment
is not the scarecrow it is often represented to be; it
does not overthrow state laws, rights and remedies to
the extent and purposes for which it is often cited. It
respects the common law, the statute law, the remedies
and proceedings existing in the state at its adoption. It
came to preserve, not to destroy existing rights."
If the proceeding, whatever it be, is a due proceeding
according to the established law, usual and proper in the
particular matter, it is due process and does not violate
the amendment. 15
It will appear from the above general definition that
what was due process long before the amendment came
continues to be such. The amendment only gives the
federal government power to enforce the right of due
process. The definition is the same as before. 16
New Laws. It dees not follow from what has just
been said, that what was due process when the Fourteenth
Amendment was adopted remains such, that, therefore,
such prior law is the only due process, and that laws made
after its adoption are not due process of law. If that
" 31 S. E. 998, 45 W. Va. 319.
IB State v. Sponaugle, 43 L. R. A. 727, 32 S. E. 283, 45 W. Va.
415: Munn v. Illinois, 94 U. S. 113; Lowe v. Kansas, 163 U. S.
81; Hallinger v. Davis, 146 U. S. 314; Hurtado v. California,
110 U. S. 516; Dent v. West Va. 129 U. S. 114; Fallbrook T.
Bradly, 164 U. S. 112.
iEames v. Savage, 52 Am. R. 751.
144 RIGHTS AND PRIVILEGES UNDER
were so, it would tie the Lands of the states from all new
legislation, and bar the courts from new procedure de-
manded by changing conditions in process of time. The
statement in State v. Sponaugle, supra, is that "the
amendment does not define due process of law. What was
such before its adoption continues such. It does not pro-
hibit a state from future new legislation, action or pro-
ceeding necessary in its judgment in the administration
of its government, so it bears alike on all similarly cir-
cumstanced, and be not unusual, oppressive or arbitrary
action, assailing the essential rights of the person. 7717
"Due process implies, at least, conformity to natural
and inherent principles of justice, and forbids the taking
of private property without compensation, or the condem-
nation of anyone in person or property without opportun-
ity to be heard in his own defense." . . .
1^ Trial without Indictment. It is not sufficient to brand
a procedure as not due process because never till then
practised. 18 This is shown by several cases holding that
a state constitution dispensing with indictment for felony
and trying it on information is consistent with the demand
of due process. 19
Number of Jurors. This is further shown by decisions
that a state may, by its constitution, make a jury to con-
sist of less than twelve, without violating the Fourteenth
Amendment. 20
17 Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383.
18 Same case.
iHurtado v. California, 110 U. S. 537; Maxwell v. Dow, 176
U. S. 581; Bolln v. Nebraska, 176 U. S. 83; Brown v. New Jersey,
175 U. S. 176; Hodson v. Vernval, 108 U. S. 202: Davis v. Burke,
179 U. S. 399, 21 Sup. Ct. 210.
20 Maxwell v. Dow, 176 U. R. 581: State v. Bates, 14 Utah, 293,
43 L. E. A. 1: Walker v. Sauvinet, 92 U. S. 90.
THE FOURTEENTH AMENDMENT. 145
There can be no question that in both civil and criminal
cases, under Articles 5 and 7 of amendments to the fed-
eral Constitution, and under state constitutions guaran-
teeing trial by jury, a jury must consist of twelve, un-
less a state constitution otherwise provides. The reason
is that a jury by the common law consists of twelve, and
when the constitutions simply give the jury right they
mean the common law jury of twelve. Unless a state con-
stitution does provide otherwise, a trial by a jury of less
than twelve in cases such as require a jury, would not
be due process of law, and the judgment would not be
good under the state constitutions. 21 A rjghj of -ji^ry
trial is not a federal right in a state court, as Walker v.
Sauvinet, supra, shows.
Nature of the Case. "In judging what is due process
of law respect must be had to the cause and object of
taking, whether under the taxing power, or the power of
eminent domain, or the power of assessment for local
improvements, or none of these, and if found to be suit-
able or admissible in the special case, it will be adjudged
to be due process ; but if found to be arbitrary, oppressive
and unjust, it may be declared to be not due process of
law." 22
A horse may be seized or sold for taxes without trial;
but an individual could not be seized without process, or
condemned without trial. The two cases are different in
21 Capital Trac. Co. v. Hof, 174 U. S. 1; Loving v. R. R. Co.
46 W. Va., 35 S. E. 962 ; Barlow v. Daniels, 25 W. Va. 512 ; Thomp-
son v. Utah, 170 U. S. 343.
22 Justice Bradly in Davidson v. N. Orleans, 96 U. S. 97; Wul-
zen v. Board, 40 Am. St. R. 17.
14-6 RIGHTS AND PRIVILEGES UNDER
nature. Ordinary administrative procedure is due pro-
cess.
Is Judicial Process Necessary to constitute due process ?
By no means in every case. If so, the wheels of govern-
ment would stop. "Due process of law does not always
require judicial hearing. It does in matters of purely
judicial nature, tnit not in matters of taxation, or in mat-
ters purely administrative." 23
"This court has heretofore decided that due process of
law does not in all cases require a resort to a court of jus-
tice to assert the rights of the public against an individual,
or to impose burdens on his property for public use.
Hoboken v. Land Co., 18 How. 272, and McMillen v.
Anderson, 95 U. S. 37." 24
Necessarily many things can be done by state authority
without a suit. Even an arrest by an officer in view of
the commission of an offense can lawfully be made with-
out a warrant, because it was authorized by common
law before the amendment, and that does not abrogate
this function; even the provisions in every constitution
requiring for arrest a warrant upon cause shown do not
impair this common law procedure. 25 Decisions of offi-
cers in first instance on facts are due process. 26 .
"Any legal procedure enforced by public authority,
whether sanctioned by age and custom, or newly devised
in the discretion of the legislature, in furtherance of the
23 State v. Sponaugle, 45 W. Va. 415, 32 S. E. 283, 43 L. R. A.
727.
-t Davidson v. N. Orleans, 96 U. S. 97.
25 Cox v. Gilmer, 88 Fed. 343; Miller v. Texas, 153 U. S. 535.
26 Nhhimura Ekin v. U. S. 142 U. S. 651.
THE FOL'RTEKXTH AMENDMENT. 147
general public good, must be held to be due process of
law." 27
"The Fourteenth Amendment does not undertake to
control the power of a state to determine by what process
legal rights may be asserted, or legal obligations be en-
forced, provided the method of procedure adopted gives
reasonable notice and fair opportunity to be heard before
the issues are decided." 28
"Due process is not necessarily judicial. Administra-
tive process, regarded as necessary in government, sanc-
tioned by long usage, is as much due process as any
other." 29 .
"Undoubtedly where life and liberty are involved due
process requires that there be a regular course of judi-
cial proceeding, which implies that the party shall have
notice and opportunity to be heard; so also where title
or possession of property is involved." 30
Abatement of Nuisance. A proceeding in equity to fp
abate a nuisance without a jury trial is due process, as
chancery always -exercised this jurisdiction. 31 A mu-
nicipal corporation may summarily, without suit or war-
rant, remove a public nuisance by force, without jury
trial or legal proceeding other than the order of its coun-
cil, because it was a power wielded at common law by an
27Hurtado v. California, 110 U. S. 537; In re Debs, 158 U. S. 564.
28 Iowa Central v. Iowa, 100 U. S. 389; L. & X. R. R. Co. v.
Schmidt, 177 U. S. 230.
2 Attorney v. Jochim, 99 Mich. 358, 41 Am. St. R. 606.
soHagar v. Reclamation Dist. Ill U. S. 708.
si Kansas v. Zeibold, 123 U. S. 623: Ellenecker v. District, 134
U. S. 31; 20 Am. St. R. 556; State v. Saunders, 66 X. H. 39
(full).
148 RIGHTS AND PRIVILEGES UNDER
individual even, to remove a public nuisance it was due
procedure by law before the Fourteenth Amendment. If
actually necessary, the thing creating the nuisance may
be destroyed or enjoined. 32
Taxation. Taxes can be imposed and collected under
state law, and, though property is seized and sold therefor
without suit, it is due process, and does not violate the
amendment. In Witherspoon v. Duncan it is held that
"the states, as a general rule, have the right of deter-
mining the manner of levying and collecting taxes on
private property." 33
"The power to impose taxes is one so unlimited in
force, so searching in extent, that the courts scarcely
venture to declare that it is subject to any restrictions
whatever, except such as rest in the discretion of the au-
thority which exercises it." 34
To the states must be left this vast power for self-
existence. "The basis of all taxation is political neces-
sity. Without taxes there can be no revenue; without
revenue there can be no government." 3B
Justice Field said, in "State Tax on Foreign-Held
Bonds": 36 "It may touch property in every shape in
its natural condition, in its manufactured form, and in
its varied transmutations. ... It may touch business
32Lawton v. Steel, 152 U. S. 142; Hart v. Mayor, 24 Am. D.
165; Keeler Case, 55 Am. St. R. 785; Cook v. Harris, 61 N. Y.
448; City v. R. R. Co. 93 Fed. 119; Bank v. Sarlis, 28 Am. St.
R. 185; Elliott, Roads & S. 486; 2 Wood, Nuis., Sees. 743, 744;
Burlington v. Swartzman, 52 Am. R. 571.
334 Wall. 210.
3*Cooley, Con. Lim. 587.
35 Burroughs on Taxation, 1, 3.
3615 Wall. 319.
THB FOURTEENTH AMENDMENT. 149
in the almost infinite forms in which it is conducted
in professions, in commerce, in manufactures, in trans-
portation. Unless restrained by provisions of the fed-
eral Constitution, the power of the state as to the mode,
form and extent of taxation is unlimited."
Such general powers of taxation are, always were, in-
herent in every government, and when the Fourteenth
Amendment came it found them vested in the states, and
no claim can plausibly be made that these established,
usual powers of taxation were impaired or narrowed by
that amendment. It does not touch them. When Jus-
tice Field, as quoted above, spoke of limitations by the
federal Constitution he must have referred to inhibitions
upon the tax powers of the state by other clauses, such
as imposts or duties on imports and exports, taxation of
government bonds and other securities, not to any inhi-
bition born of this amendment.
"The United States Constitution does not profess in
all cases to protect against oppressive and unjust taxa-
tion by states." 37
"This court can afford a citizen of a state no relief
from enforcement of her laws prescribing the mode and
subjects of taxation, if they neither trench upon federal
authority nor violate any right secured or recognized by
the Constitution of the United States." 38
In Kelley v. Pittsburg 39 the claim was that the tax
was contrary to the Fourteenth Amendment, but the court
held that "although differing from proceedings in courts
37 Memphis Gas Co. v. Shelby County, 109 U. S. 398.
ss Kirtland v. Holkiss, 100 U. S. 491.
3 104 U. S. 78.
150 RIGHTS AND PRIVILEGES UNDER
of justice, the general system of procedure for the levy
and collection of taxes which is established in this country
is, within the meaning of the Constitution, due process
of law; and that a party is not deprived of his property
without due process of law by the enforced collection of
taxes merely because they, in individual cases, work hard-
ship or impose unequal burdens."
In McMillen v. Anderson 40 it is held that the revenue
laws of a state may be in harmony with the Fourteenth
Amendment, though they do not provide that a person
shall have opportunity to be present when a tax is as-
sessed, or that it shall be collected by suit.
"Taxes are not, as a general rule, collected by judicial
proceedings, and the procedure resorted to for their im-
position and collection may be properly regarded as due
process of law if it conforms to customary usage." 41
Numerous cases hold this view. 42
"Process of taxation does not require the same kind
of notice as in a suit at law or proceedings under power
of eminent domain. It involves no violation of due pro-
cess of law when executed according to customary forms
and established usage. . . This must be so, else the
existence of government might be put in peril by delays
attendant upon formal judicial proceedings for collection
of taxes." 4 2
U. S. 37.
4iWulzen v. Board, 40 Am. St. R. 1.
42 Crandall v. Nevada, 6 Wall. 35 ; McCullough v. Maryland, 4
Wheat. 317; Fallbrook v. Bradley, 164 U. S. 113; Bank v. N. Y.
City, 2 Black, 620.
43 Bells Gap R. R. Co. v. Pennsylvania, 134 U. S. 232; Palmer
v. McMahon, 133 U. S. 660.
THE FOURTEENTH AMENDMENT.
"Of the different kinds of taxes states may impose
there is a vast number of which, from their nature, no
notice can be given the taxpayer; nor would notice be
of any advantage to him ; such as poll taxes, license taxes
(not dependent on extent of business) and generally spe-
cific taxes on things, persons or occupations. In such
cases the legislature, in authorizing the tax, fixes the
amount, and that is the end of the matter. If the tax is
not paid, property may be sold and the owner be thus de-
prived of it. Yet there can be no question that the pro-
ceeding is due process of law, as there is no inquiry into
the weight of evidence or other element of judicial na-
ture, and nothing could be changed by hearing the tax-
payer. No right of his is thereby invaded. Thus, if the
tax on animals be fixed at a sum per head, or on articles
at so much per yard, bushel or gallon, there is nothing the
taxpayer can do to affect the amount to be collected from
him. So if a person wishes a license to do business of a
particular kind, or at a particular place, such as keeping
hotel or restaurant, or selling liquor, cigars or clothes, he
has only to pay the amount required by law. There is no
need in such case for notice or hearing. So, also, if taxes
are imposed in the shape of licenses for privileges, such
as those on foreign corporations for doing business in a
state, or on domestic corporations for franchise, the par-
ties have only to pay the amount. In such cases there
is no need for notice or hearing, as the amount would not
be changed. But where a tax is levied on property not
specifically, but according to value, to be ascertained, by
assessors, upon such evidence as they may obtain, a dif-
ferent principle comes in. The officers in estimating
152 RIGHTS AND PRIVILEGES UNDER
value act judicially ; and in most of the states provision
is made for the correction of errors committed by them,
through boards of revision or equalization, sitting at des-
ignated periods provided by law to hear complaints re-
specting the justice of the assessment. The law in pre-
scribing the time when such complaint will be heard
gives all the notice required, and the proceeding by which
the valuation is determined, though it may be followed,
if the tax is not paid, by a sale of the delinquent's prop-
erty, is due process of law." 44
The failure to provide a hearing before the governor
for revaluation of undervalued property under an act of
the legislature does not make the proceeding void for want
of due process, as the governor only starts the inquiry,
and opportunity for hearing is offered in subsequent pro-
ceedings. !N"or is it a denial of equal protection under
the Fourteenth Amendment ; and a revaluation of under-
valued assessment, to make property bear the burden it
would have borne by a fair assessment in the first in-
stance, does not violate the call for due process on the
theory that the first assessment was a judgment which
could not be changed. 45
As to hearing in proceedings of taxation, there need be
no judicial inquiry, it being sufficient if an opportunity
to question the vadidity or amount of the tax, either be-
for the amount of the tax is determined or in subsequent
proceedings for collection, is given. I understand by this
**Hager v. Reclamation District, 111 U. S. 709; Palmer v. Mc-
Mahon, 133 U. S. 6G1 ; Bells Gap Co. v. Pennsylvania, 134 U. S.
233; Pittsburg v. Backus, 154 U. S. 421; Kentucky Railroad Tax
Cases, 115 U. S. 321; Spencer v. Merchant, 125 U. S. 345.
45 Weyerhauser v. Minnesota, 176 U. S. 550, 20 Sup. Ct R. 485.
THE FOURTEENTH AMENDMENT. 153
that if the statute give any mode of correction it is enough.
And as to validity, if equity gives relief, as it does, though
the statute gives no mode of correction, the assessment is
according to due process. 46 My understanding is that
equity gives relief against unauthorized, illegal imposi-
tion of taxes; and so the existence of that remedy would
exclude the idea that the imposition of the tax was with-
out due process. As shown by the authorities cited by
me in State v. Sponaugle 47 if there exists any right to
contest a proceeding of taxation after its imposition, it is
enough to prevent the charge that it is without due pro-
cess of law.
Such laws in a state as have been the accustomed, ordi-
nary, usual laws for the assessment and collection of taxes
are due process of law under the Fourteenth Amendment.
The authorities cited in State v. Sponaugle, last cited,
will show this. In that case state law forfeiting land for
failure to charge it on the land-tax books was held not
repugnant to the Fourteenth Amendment, because such a
law for the enforcement of taxes by forfeiture of the land
had been frequently, through many years, resorted to in
the two Virginias as a means of enforcing the payment
of delinquent taxes. This state law was upheld as con-
sistent with the Fourteenth Amendment by the United
States Supreme Court. 48
An act requiring commissioners to assess for taxation
land before omitted, held not contrary to the Fourteenth
Amendment as taking property without due process of
46Winona v. Minnesota, 159 U. S. 526.
47 45 W. Va. 415, 32 S. E. R. 283, 43 L. R. A. 727.
"King v. Mullins, 171 U. S. 404.
154 RIGHTS AND PRIVILEGES UNDER
law, since the act allowed a taxpayer two years to ask
relief for erroneous assessment. 49
As will appear in cases above cited, the Virginia courts
held valid acts of the legislature forfeiting land for omis-
sion to enter them on the tax-books, or to pay taxes actual-
ly assessed, and also held that such acts, ex proprio vigore,
without any judicial proceeding, forfeited the owner's
title -and vested it in the state. When those Virginia de-
cisions were made the Virginia constitution contained
this demand of due process. This power of taxation is so
great that the Virginia court has held that a man may be
arrested and imprisoned under a mere license certificate
of an assessor of the revenue on failure to pay tax on
license as a distiller, without a violation of the Virginia
Bill of Eights saying that no one shall a be deprived of his
liberty except by the law of the land or the judgment of
his peers." 50
We repeat here that due process means the same under
all the constitutions, state and federal, including the Four-
teenth Amendment. To show that process usual for the
collection of taxes is due process of law I may cite Mur-
ray v. Hoboken Land Company. 51 A distress warrant was
issued against the property of a defaulting revenue col-
lector, and under it land was sold, and it was claimed that
it deprived him of his land without due process, con-
trary to Amendment V. The sale was held valid on the
ground that the distress warrant was an authorized pro-
cess for the collection of revenue. The court said:
49 Douglas County v. Commonwealth, 34 S. E. 52 ; 97 Va. 397.
> Commonwealth v. Byrne, 20 Grat. 165.
si 18 Howard, 272. Also Fallbrook Irrigation Dist. v. Bradley,
164 U. S. 112.
THE FOURTEENTH AMENDMENT. 155
"That the warrant now in question is legal process, is
not denied. It was issued in conformity with an act of
Congress. But is it due process of law? The Constitu-
ution contains no description of those processes, which it
was intended to allow or forbid. It does not even de-
clare what principles are intended to be applied to ascer-
tain whether it be due process. It is manifest that it was
not left to the legislative power to enact any process which
might be devised. The article is a restraint on the legis-
lative, as well as on the executive and judicial, powers of
the government, and can not be so construed as to leave
Congress free to make any process due process of law by
its mere will. To what principles, then, are we to re-
sort to ascertain whether this process enacted by Congress
is due process ? To this the answer must be twofold.
We must examine the Constitution itself to see whether
this process be in conflict with any of its provisions. If
not found to be so, we must look to those settled usages
and modes of proceeding existing in the common and
statute law of England before the emigration of our an-
cestors, and which are shown not to have been unsuited
to their civil and political condition, by having been acted
on by them after the settlement of this country. We ap-
prehend there has been no period since the establishment
of the English monarchy when there has not been, by the
law of the land, a summary method for the recovery of
debts due to the crown, and especially those due from re-
ceivers of the revenues. It is difficult at this day to trace
with precision all the proceedings had for these purposes
in the earliest ages of the common law. That they were
summary and severe, and had been used for purposes of
156 RIGHTS AND PRIVILEGES UNDER
oppression, is inferable from the fact that one chapter of
Magna Charta treats of their restraint. It declares, 'We,
or our bailiffs, shall not seize any land or rent for any
debt as long as the present goods and chattels of the debtor
do suffice to pay the debt, and the debtor himself be ready
to satisfy therefor.' By the common law the body, lands
and goods of the king's debtor were liable to be levied
on to obtain payment. In conformity with the above pro-
visions of Magna Charta, a conditional writ was framed
commanding the sheriff to enquire of the goods and chat-
tels of the debtor, and if they were insufficient, then to
extend on the land. But it is said that since the Statute
33, Hen, VIII, C. 39, the practice has been to issue the
writ in an absolute form. . . . This brief sketch of the
modes of proceeding to ascertain and enforce payment of
balances due from receivers of the revenue in England
is sufficient to show that the methods of ascertaining the
existence and amount of such debts, and compelling pay-
ment, has varied widely from the usual course of the
common law on other subjects, and that as respects such
debts due from such officers, 'the law of the land' author-
ized the employment of auditors and an inquisition with-
out notice, and a species of execution bearing close re-
semblance to what is termed a warrant of distress in the
Act of 1820, now in question. It is certain that this di-
versity in the law of the land between public defaulters
and ordinary debtors was understood in this country, and
entered into the legislation of the colonies and provinces,
and more especially of the states, after the Declaration
of Independence and before the formation of the Con-
stitution of the United States. Not only was the process
THE FOURTEENTH AMENDMENT. 157
of distress in nearly or quite universal use for the collec-
tion of taxes, but what was termed a warrant of distress,
issuing against the body, goods and chattels of default-
ing receivers of public money, was issued to some public
officer, to whom was committed the power to ascertain
the amount of the default, and by such warrant to pro-
ceed to collect."
The court then specifies various states in which such
revenue-collecting procedure was resorted to, and adds:
"This legislative construction of the Constitution, com-
mencing so early in the government, when the first occa-
sion for this manner of proceeding arose, continued
throughout its existence, and repeatedly acted on by the
judiciary and the executive, is entitled to no inconsider-
able weight upon the question whether the proceeding
adopted by it was due process of law. . . . Tested by the
common and statute law of England prior to the emigra-
tion of our ancestors, and by the laws of many of the
states at the time of the adoption of this amendment (Ar-
ticle V), the proceedings authorized by the Act of 1820
can not be denied to be due process of law when applied
to the ascertainment and recovery of balances due the
government from a collector of customs, unless there is
in the Constitution some other provision which restrains
Congress from authorizing such proceedings. For, though
due process of law generally implies and includes actor,
reus, judex, regular allegations, opportunity to answer,
and a trial according to some settled course of judicial
proceedings (2 Inst. 47, 50; Hoke v. Henderson, 4 Dev.
K C. 15; Taylor v. Porter, 4 Hill, 140, 146; Van Zant
v. Waddel, 2 Yerg. 260; State Bank v. Cooper, Id. 599;
158 RIGHTS &ND PRIVILEGES UNDER
Jones v. Perry, 10 Id. 59; Green v. Briggs, 1 Curtis C.
C. R. 311), yet this is not universally 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 which process, in
its nature final, issues against the body, lands and goods
of certain public debtors without any such trial."
This case is largely commented upon in the Virginia
Supreme Court, through President Moncure, and it is
there shown, by cases from Tennessee, Kentucky, Maine,
Massachusetts, Georgia, Missouri and other states, that
summary proceedings, without judicial proceeding and
without notice, have always been and are due process
of law in the assessment and collection of taxes. 52
A statute that land purchased for taxes by the state,
if not redeemed within two years, any person may pur-
chase of the state and take deed, and that such deed can
only be defeated by proof that the taxes had been paid,
held not contrary to the Fourteenth Amendment, but jus-
tified by the taxing power. 53
But while this power of state taxation is thus large,
it is proper^ to say, though it is not strictly pertinent to
this work, that this "power of a state is limite-'J to per-
sons, property and business within its jurisdiction. All
taxation must relate to one of these subjects." 54
In the case just cited it was held that bonds of a rail-
52 Commonwealth v. Byrne, 20 Grat. 165.
53 Virginia Coal Co. v. Thomas, 97 Va. 527, 34 S. E. 486. See
Castillo v. McConnico, 168 U. S. 682; King v. Mullins, 171 U. S.
404; Williams v. Supervisors, 122 U. S. 164; Multnomah v. Sav-
ings, 169 U. S. 421.
54 State Tax on Foreign-Held Bonds, 15 Wall. 300.
THB FOURTEENTH AMENDMENT. 159
road company held by non-residents of the state of in-
corporation could not be taxed by it.
No State Taxes on United States Securities. A state can
not tax bonds, treasury notes or other evidences of indebt-
edness of the national government, or any instrumentali-
ties or agencies or property necessary in the performance
of its appointed functions. 55 But it may levy inheritance
tax on them. It is not a property tax. 56
No State Tax on Federal Office or Salary. 57
No Federal Tax on Salary of State Officer. 58 Nor on
bonds, or property or agencies of a state government or
municipality. 59
No State Tax on Exports or Imports to or from foreign
countries while the goods are in original cases ready for
export, or at the close of import, unbroken or unsold. 60
No State Tax on Passengers or Freight Passing from State
to State, nor on a railroad for them. This would interfere
with interestate commerce, would restrict it unlawfully,
in violation of that clause of the Constitution giving Con-
gress power to regulate interstate commerce. 61
For the same reason a state can not tax articles of
freight taken up without the limits of a state and carried
into it, or taken up in the state for carriage out of it. 62
55 Bank v. X. Y. City Bank, 2 Black, 620; Bank v. Mayor, 7
Wall. 10; Mitchell v. Commissioners, 91 U. S. 206; Telegraph Co.
v. Texas, 105 U. S. 460; Van Brocklin v. Tennessee, 117 U. S. 151.
ceplummer v. Coler, 178 U. S. 115; U. S. v. Perkins, 163 U. S.
625.
57 Dobbins v. Erie Co. 16 Peters, 435.
58 Collector v. Day, 11 Wall. 113.
59 Ward v. Maryland, 12 Wall. 427; R. K. v. Penniston, 18
Wall. 5; Pollock v. Farmers' L. & T. Co., 157 U. S. 429.
<>Lowe v. Austin, 13 Wall. 29; Brown v. Maryland, 12 Wheat.
419.
ei Crandall v. Nevada, 6 Wall. 35.
2 State Freight Tax Case, 15 Wall. 232.
150 RIGHTS AND PRIVILEGES UNDER
Thus it appears that the powers of each government,
federal and state, are separate as to taxation. Each has
full power of taxation; but one can not impair the gov-
ernmental powers of the other by taxing its property, se-
curities, agencies or means essential for purposes of gov-
ernment.
Taxation must be for Public Purposes. It will appear
from authorities above that the state power of taxation is
very wide ; but wide as this power is, still it is not utterly
without limits; it can be exercised only for pubic ends.*
Taxation for any other purpose would take property with-
out due process of law, contrary to the Fourteenth Amend-
ment. "The general grant of legislative power in the
constitution of a state does not authorize the legislature, in
the exercise of either the right of eminent domain or of
taxation, to take private property without the owner's
consent for any but a public object. The legislature of
Missouri has no constitutional power to authorize a city
to issue bonds by way of donation to a private manufac-
turing corporation." 63
"There is no such thing in the theory of our govern-
ments, state or national, as unlimited power. The execu-
tive, the legislative and the judicial departments are
all of limited and denned powers. There are limitations
of such powers which arise out of the essential nature
of all free governments, implied reservations of indi-
vidual rights, without which the social compact could not
exist, and which are respected by all governments en-
titled to the name. Among these is the limitation of the
es Cole v. La Grange, 113 U. S. 1.
THE FOURTEENTH AMENDMENT.
right of taxation, that it can only be used in aid of a
public object, an object within the purpose for which
governments are established. It can not be used in aid
of a private enterprise." 64
The last case cited holds, as many others do, that
whether exactions from the people are lawful taxation is
ultimately a judicial queston for the courts. Such exac-
tion, not lawful taxation, would be a deprivation of prop-
erty without due process, violative of state constitutions
and the Fourteenth Amendment. 65
Distress for Rent seizes and sells property without jury
or trial; yet having been used as a legal process well
known to the common law for the collection of rent for
centuries before the amendment, it is due process, and
not repugnant to that amendment. 66 Generally, the law
allows a forthcoming or replevin bond to be given in
cases of distress for rent, and defense thereto may be
made on the ground of illegality or excess of distress, as
stated in the case just cited, and this constitutes due pro-
cess of law.
Death Sentence without Jury. As the state constitu-
tions require the criminal fact to be found by a jury, of
course such sentence, or any sentence deprivative of lib-
erty, without a jury, would be against the Fourteenth
Amendment; but where one confesses the criminal fact
in the open court upon arraignment, the court, without
jury, may determine whether death or a lighter punish-
ment shall be inflicted without violating the Fourteenth
"Loan Association v. Topeka, 20 Wall. 655.
5Cooley on Taxation, 67: Sharpless v. Mayor, 59 Am. Dec. 750.
B Anderson v. Henry, 45 W. Va. 319, 31 S. E. t)98.
162 RIGHTS AND PRIVILEGES UNDER
Amendment, provided the state law allows it. The state
statute may, in such case, allow the accused to elect to
be tried by the court. 67
Punishment for Contempt. Contempt of court, or of
a legislative body, may be punished without a jury, and
is due process, so far as the Fourteenth Amendment goes,
as it was always an established procedure used by the
courts and legislative bodies as essential for the efficient
discharge of the functions belonging to them under the
law. Prompt action in such cases is essential. Courts
and legislative bodies must necessarily preserve their ex-
istence and efficacy of action by prompt punishment of
obstruction or resistance to their proceedings. 68
In the Eilenbecker Case cited one was summarily pun-
ished for selling liquor contrary to an injunction against
so doing, and it was held that the state might call into
requisition all the powers of courts, chancery or law, to
suppress the manufacture and sale of liquor.
Entry upon Land for Survey for railroad or private per-
son, where authorized by statute, does not violate the
Fourteenth Amendment. It would be a trespass if done
without the owner's consent; but the act of the legisla-
ture allowing it takes from the act the character of tres-
pass, and as it does not take away the owner's property,
and is no . substantial injury, and does not substantially
deprive him of its use, it does not violate the Constitu-
tion. 69
7 Hallinger v. Davis, 146 U. S. 314.
es Eilenbecker v. Dist. Court, 134 U. S. 31 ; In re Debs, 158 U. S.
564; Barclay v. Barclay, 184 111. 471; Kilbourn v. Thompson, 103
U. S. 168.
es Montana Co. v. St. Louis Co. 152 U. S. 160,
THE FOURTEENTH AMENDMENT. 163
Condemnation of Land. If property is condemned for
public use without payment of, or security for, compen-
sation, though in a regular proceeding in court otherwise
proper, it is a taking of property without due process
of law, contrary to the Fourteenth Amendment. 70
Taking Property for mere Private Use. Private proper-
ty is sacred. It can not be taken from one man for the
mere private use of another, even with full compensation.
The purpose of its condemnation must be public, either for
the use of the state or some of its counties or municipali-
ties performing, in part, the functions of a state, or for
the use of some corporation chartered by the state for
the performance of functions deemed public, for transpor-
tation or other public benefit. Condemnation for such
public purposes must be with compensation. If the con-
demnation is for any other than such public purpose,
and is merely for the private use or convenience of an-
other man, it is a gross violation of the Fourteenth Amend-
ment, as also of the state constitutions. The state consti-
tutions declare that private property shall not be taken,
even for public use, without compensation, thus denying,
by the strongest implication, the right to take it for pri-
vate use even with compensation. 71 Hence, an act al-
lowing taking of land for a private road is unconstitu-
tional. 72
Compensation for Land Condemned to public use under
the power of eminent domain may be fixed, where state
TO Chicago, B. & Q. Co. v. Chicago, 166 U. S. 226, 235; Norwood
v. Baker, 172 U. S. 269.
71 Missouri Pacif. Co. v. Nebraska, 164 U. S. 403.
72 Varaer v. Martin, 21 W. Va. 534 ; Holden v. Hardy, 169 U. S.
366.
164 RIGHTS AND PRIVILEGES UNDER
statute allows, by commissioners, and due process of law
under the Fourteenth Amendment does not require a
jury. 73 State court may one time rule that compensation
is to be fixed by jury before a sheriff, and another time by
jury before judge, yet this is only a change of procedure,
not against amendment.
Assessing Improvements on Lot-Owners. Legislation al-
lowing costs of paving and grading streets, making sew-
ers, drains and the like by towns to be charged to lot-own-
ers, and making it a lien on the lots, does not take prop-
erty without due process, as it is justified under the tax-
ing power. 74
But the cited cases hold notice of the proposed assess-
ment to be given the lot or land-owner necessary, else it
is without due process. The case of Dewey v. Des Moines,
cited in last footnote denies right to make a non-resident
personally liable for such improvement.
The Virginia case of Heth v. Radford, 75 requires not
only that notice shall be given, but that such notice must
be provided for in the statute, else due process is wanting,
and renders the proceeding void; but it occurred to me
that this was an unreasonable requirement, and that the
statute should be construed as contemplating notice, and
requiring it, to make the proceeding good under the prin-
73 Bauman v. Ross, 167 U. S. 548; Backus v. Fort Smith, 169
U. S. 557; Gilmer v. Hunnicutt, 35 S. E. 521.
74Walston v. Nevin, 128 U. S. 578; Paulsen v. Portland, 149
U. S. 30; Wurtz v. Hoagland, 114 U. S. 606; Bauman v. Ross,
167 U. S. 548; Davidson v. N. Orleans, 96 U. S. 97; Spencer v.
Merchant, 125 U. S. 345; Dewey v. Des Moines, 173 U. S. 193;
People v. Mayor, 55 Am. D. 266, full discussion and note; Hagar
v. Reclamation Dist. Ill U. S. 701 ; Leighton v. Young, 52 F. 439;
Loeb v. Trustees, 179 U. S. 472, 21 Sup. Ct. 174; King v. City, 63
Pac. 2.
75 Heth v. Radford, 31 S. E. 8.
THE FOURTEENTH AMENDMENT.
ciple prevalent in the construction of statutes, that, where
a statute authorizes a proceeding operative to the preju-
dice of another, notice is intended and required of the
proceeding to make it good; and I find that Poulsen v.
Portland 76 says that the statute need not expressly pro-
vide for notice, but that notice must be given, though the
statute does not in words require it. So holds the West
Virginia court. 77
It is held that charging property with improvements
must have the basis of actual benefit to the property, else
it can not be sustained. The legislature can not merely
authorize such assessment without this element of benefit ;
and, indeed, the assessment beyond actual benefit is un-
constitutional. I understand by this excessive damages
are meant. 78 Merely charge by frontage will not do. It
must be by value of improvement.
Public Office not Vested Property. The Fourteenth
Amendment does not protect it. Removal from it by such
procedure as the state sees fit to adopt is due process in
such case. Xo jury is required in such cases, unless the
state statute provides for it. 79 A municipal corporation
may remove its officers at pleasure, where it has power to
appoint Town v. Filler, 47 W. Va. , 35 S. E. 6; Rich-
ard v. Clarksburg, 20 Am. and Eng. Corp. Cases, 111.
76 149 U. S. 30.
77 B. & O. Co. v. P. W. K. Co. 17 W. Va. 813.
78 Norwood v. Baker, 172 U. S. 269; Hutchinson v. Stovie, 92
Tex. 685, 71 Am. St. R. 884; Adams v. City, 154 Ind. 467. See Cass
Farm v. Detroit, 83 N. W. 108, contra.
79 Wilson v. North Carolina, 169 U. S. 586; Moore v. Strickling,
46 W. Va. 515, 33 S. E. 274; Atty. General v. Jochim, 99 Mich.
358, 41 Am. St. R. 606; Ex parte Wall, 107 U. S. 265; Talioferro
v. Lee, 97 Ala. 92; Taylor v. Beckham, 178 U. S. 548. 20 Sup. Ct.
899. See Foster v. Kansas, 112 U. S. 201; Kennard v. Louisiana,
92 U. S. 480.
166 RIGHTS AND PRIVILEGES UNDER
Tax Deed as Evidence. A statute making a tax deed
conclusive as evidence to divest the former owner of title
and vest it in the tax-purchaser, or evidence of any step
essential to pass title from the owner, takes property from
that owner without due process of law. The statute may
make such deed prima facie, but not conclusive, evi-
dence. 80
City Ordinance against Speeches in Street or park does
not violate the amendment, as depriving a person of lib-
erty without due process. It is justified by the police
power, which is left with the states by the Fourteenth
Amendment. 81
City Ordinance against Street Obstruction is a valid ex-
ercise of police power consistent with the Fourteenth
Amendment. A building can not be moved in body
across a street, contrary to ordinance. 82
so Castillo v. McConnico, 168 U. S. 674; McCready v. Sexton,
29 la. 356, 4 Am. R. 214; Dequasie v. Harris, 16 W. Va. 345; Wil-
liams v. Kirtland, 13 Wall. 306; Cooley, Taxation, 355.
si Davis v. Massachusetts, 167 U. S. 43.
82 Wilson v. Eureka. 173 U. S. 32.
TUB FOURTEENTH AMENDMENT. 167
Chapter J2.
POLICE POWEK OF STATES.
Those great powers vested in a state and its subordinate
agencies, such as counties, cities, towns or townships,
called the police power, under which life, liberty and
property may be taken, existed from the dawn of gov-
ernment, existed in the Colonies at the date of the Dec-
laration of Independence, and were always exercised by
the states, notwithstanding clauses in their own consti-
tutions declaring that no person should be deprived of
life, liberty or property without due process of law, and
the exericise of such powers by the states was always held
to be entirely consistent with such constitutional pro-
visions. These powers can not properly be called excep
tions from the constitutional demand of due process of
law; for they are, in themselves, due process, because
they are proper, usual, ordinary action pursuant to law,
and appropriate in the particular case. When the Four-
teenth N Amendment came, it came, not to destroy rights
existing in the states ; it did not undertake even to define
due process of law. or to declare or indicate what already
were, or should thereafter bo, legitimate powers of the
states; it used only the common law expression, "due
1(58 RIGHTS AND PRIVILEGES UNDER
process of law," as a legal phrase of common law im-
port, as a thing pre-existing. It neither originated, en-
larged, nor narrowed that expression in its meaning. It
simply declared that no state shall pass upon or affect
the life, liberty or property of a person, except according
to due process of law, whatever that be in the particular
case or instance, tested by the existing general law appli-
cable alike to all. Plainly, then, this amendment does not
touch to impair the lawful police power of the states. It
does not create, narrow or widen/police power, but leaves
it as it was before the amendment came. 1
"The Fourteenth Amendment does not impair the po-
lice power of the states." 2
Upon this subject Chief -Justice Fuller says: "The
power of the state to impose restraints and burdens upon
persons and property in conservation and promotion of
the public health, good order and prosperity, is a power
originally and always belonging to the states, not surren-
dered by them to the general government, nor directly
restrained by the Constitution of the United States, and
essentially exclusive. And this court has uniformly rec-
ognized state legislation, legitimately for police purposes,
as not, in the sense of the Constitution, necessarily in-
fringing upon any right which has been confided express-
ly or by implication to the national government. The
Fourteenth Amendment, in forbidding a state to make or
enforce any law abridging the privileges and immunities
of citizens of the United States, or to deprive any per-
1 Barbier v. Connolly, 113 U. S. 27; Minneapolis v. Beckwith,
129 Id. 26.
2 Slaughter House Cases, 16 Wall. 30.
FOURTEENTH AMENDMENT. 169
son of life, liberty or property without due process of
law, or to deny any person within its jurisdiction the
equal protection of the laws, did not invest, and did not
attempt to invest, Congress with power to legislate upon
subjects which are within the domain of state legisla-
tion." 3
Chief-Justice Taney, in License Cases, 4 said of the po-
lice powers: "They are nothing more or less than pow-
ers of government inherent in every sovereignty. Wheth-
er a state passes a quarantine law, or a law to punish
offenses, or establish courts, or to record instruments, or
regulate commerce within its territory, in every such case
it exercises the same power to govern men and things."
Indeed, this police power is so essential to state gov-
ernment that it has been held that it is not within the
power of a state to grant it away to a corporation, or
embargo itself from its future exercise, or otherwise re-
linquish or bargain it away. 5 A state could not be a
government, could not give protection to its people in re-
turn for their allegiance and taxes did it not possess this
police power ; for upon it rests her entire criminal law, all
law to protect life, limb, property, health, order, morals
all the highest behests and wants of organized society.
The Supreme Court said : 6 "It is thoroughly established
in this court that the inhibitions of the Constitution of
the United States upon impairment of contracts or dep-
rivation of property without due process of law, or equal
3 In re Rahrer, 140 U. S. 554.
*5 How. 583.
5 Beer Co. v. Massachusetts, 97 U. S. 25 ; Stone v. Mississippi,
101 U. S. 814; Railroad Co. v. Transportation Co. 25 W. Va. 324.
N. Y. & N. E. R. R. Co. v. Bristol, 151 U. S. 567.
170 RIGHTS AXD PRIVILEGED UXDER
protection of law by the states, are not violated by the
legitimate exercise of legislative power in securing public
safety, health and morals. The governmental power of
self-protection can not be contracted away, nor can the
exercise of rights granted, nor the use of property, be
withdrawn from the implied liability in particulars es-
sential to the preservation of the community from in-
jury," citing many cases.
"The police power is as broad and plenary as the tax-
ing power (as defined in Coe v. Errol, 116 U. S. 517),
and property within the state is subject to the operation
of the former so long as it is within the regulating re-
strictions of the latter." 7
"All rights are subject to the police power of a state;
and if public safety or morals require the discontinuance
of any manufacture or traffic, the legislature may provide
for its discontinuance, notwithstanding an individual or
corporation may suffer inconvenience." 8
"The settled rule of this court is that the mere fact
of pecuniary injury does not warrant the overthrow of
legislation of a police character." 9
Criminal Law Rests on Police Power There is no other
- warrant for it. Indeed, a large part of the civil law, that
giving right of action for torts and contracts, rests on
this police power. "Undoubtedly the authority to deter-
mine what crimes are punishable, and to provide for
their punishment, is a part of the general police power
of a sovereign and independent state, and, not being con-
Kidd v. Peirson, 128 U. S. 1.
Beer Co. v. Massachusetts, 97 U. S. 25.
L'Hote v. New Orleans, 177 U. S. 587.
THE FOURTEENTH AMENDMENT. JJ1
ferred by the Constitution of the United States upon the
federal government, remains with the separate states of
the Union." 10
It is impossible and dangerous to lav down an iron-
bound, inflexible definition of the police power. It is
elastic, changing with time and need. "How far the po-
lice power goes must be left for decision in each case as
it arises." 11
Wide as is this power, everything and anything done
under state authority can not be justified under it. The
act done must fall within the legal bounds- of the police
power. If it exceeds those bounds, and prejudices life,
liberty, property, equality before the law, or privilege
or immunity, it justifies federal intervention under the
Fourteenth Amendment, because it violates that amend-
ment. 12
"Under pretense of police regulation the state can not
be permitted to encroach upion any of the just rights of
the citizen, which the Constitution intended to secure
against abridgement." 13
Definition of Police Power. Practically I have above
given such definition. "Police power, in its broadest
acceptation, means the general power of a government
to preserve and promote public welfare, even at the ex-
pense of private right." 14
10 1 McClain's Crim. Law, Sec. 23.
11 Allgeyer v. Louisiana, 165 U. S. 578.
^State v. Goodwill, 33 W. Va. 179, 25 Am. St. R. 863, and
note; Ruhstratt v. People, 185 111. 133; Frost v. Chicago, 178 111.
250, 49 L. R. A. 657 ; State v. Johnson, 61 Kan. 803, 49 L. R. A. 662.
is Field, J., in Slaughter House Cases, 16 Wall. 87.
i* Cooley, Con. Lira. 707 ; Tiedman's Police Limitations, Sec. 1.
172 RIGHTS AXD PRIVILEGES UNDER
In Lawton v. Steele 15 is an opinion by Justice Brown
which I consider one of the very best statements of the
nature and extent of the police power to be found any-
where. He says: "It is universally conceded to include
everything essential to public safety, health and morals,
and to justify destruction or abatement by summary pro-
ceedings of whatever may be regarded as public nuisances.
Under this power it has been held that the state may or-
der the destruction of a house falling to decay or other-
wise endangering the lives of passers-by; the demolition
of such as are in the path of conflagration ; the slaughter
of diseased cattle; the destruction of decayed or unwhole-
some food; the prohibition of wooden buildings in cities;
the regulations of railways and other means of public
conveyance, and of interments in burial-grounds; the
restriction of objectionable trades to localities; the com-
pulsory vaccination of children; the confinement of the
insane or those afflicted with contagious disease; the re-
straint of vagrants, beggars and habitual drunkards; the
suppression of obscene publications and houses of ill
fame; and the prohibition of gambling-houses and places
where intoxicating liquors are sold. Beyond this, how-
ever, the state may interfere wherever the public inter-
ests demand it, and in this particular a large discretion
is necessarily vested in the legislature to determine, not
only what the interests of the public require, but what
measures are necessary for the protection of such inter-
ests. To justify the state in thus interposing its author-
ity in behalf of the public it must appear, first, that the
15152 U. S. 133.
TUB FOURTEENTH AMENDMENT. 173
interests of the public generally, as distinguished from
those of a particular class, require such interference;
and, second, that the means are reasonably necessary for
the accomplishment of the purpose, and not unduly op-
pressive upon individuals. The legislature may not, un-
der guise of protecting public interests, arbitrarily inter-
fere with private business, or impose unusual and un-
necessary restrictions upon lawful occupations. In other
words, its determination of what is a proper exercise of
the police power is not final or conclusive, but is subject
to the supervision of the courts."
The police power of a state is the power to prescribe
laws and regulations for the good order, peace, protec-
tion, safety of person, character and property, comfort,
convenience, morals of the community, and to accomplish
these ends it may do anything not trenching on the like
powers of the federal government. 16
"It is the inherent and plenary power of the state which
enables it to prohibit all things hurtful to the comfort
and welfare of society." 17
"As soon as any part of a person's conduct affects preju-
dicially the interests of others, society has jurisdiction
over it." 18
"It is within the general power of the state to promote
the public welfare and health, even at the expense of pri-
vate right, and this power may be delegated to private
corporations. It rests solely with the legislative discre-
iN. O. Gas Co. v. Hart, 40 La. Ann. 474, 8 Am. St. R. 544, 20
Am. & Eng. Corp. Cas. 258; Western Union Co. v. Pendleton, 122
U. S. 359, 18 Am. & Eng. Corp. Cas. 18.
"Hale v. Lawrence, 1 Zabriskie, 714, 47 Am. D. 190.
"Mills on Liberty, Ch. 4.
174 RIGHTS AND PRIVILEGES UNDER
tion, inside of constitutional limits, to determine when
public safety and welfare require the exercise of the police
power. Courts can interfere only when such exercise
conflicts with the Constitution ; with the wisdom, policy
or necessity of such exercise they have nothing to do." 19
In the case just cited, and such is certainly law, it
is said that a municipal corporation can not treat as a
nuisance a thing that can not be such; but when from
its nature or surroundings it does or may become such,
the corporation may so treat it; and in doubtful cases de-
pending on a variety of circumstances, which require the
exercise of discretion, the decision of municipal authori-
ties is conclusive and binding on the courts. But the
action of the municipal council declaring a thing a nui-
sance is judicial in nature and subject to review by the
courts. 20
"All property, all business, every private interest may
be affected by it and brought within its influence. Under
it the legislature regulates the use of property, prescribes
rules of personal conduct, and in numberless ways,
through its pervading and ever-present authority, su-
pervises and controls the affairs of men in their relation
to each other and to the community at large, to secure
the mutual and equal rights of all, and promote the in-
terest of society. It has limitations; it can not be arbi-
trarily exercised to deprive the citizen of his liberty or
his property. But a statute does not work such a depriva-
tion in the constitutional sense simply because it imposes
is Walker v. Jameson, 140 Ind. 591, 49 Am. St. R. 222.
20 Town of Davis v. Davis, 40 W. Va. 464 ; Cole v. Kegler, 64 la.
59, 19 N. W. 843; Teass v. City, 38 W. Va. 1.
TUB FOURTEENTH AMENDMENT. 175
burdens or abridges freedom of action, or regulates oc-
cupations, or subjects individuals or property to restraints
in matters in difference, except as they affect public in-
terests or the rights of others. Legislation under the po-
lice power infringes the constitutional guaranty only when
it is extended to subjects not within its scope and pur-
view, as that power was defined and understood when
the Constitution was adopted. The generality of terms
employed by jurists and publicists in defining the power,
while they show its breadth and the universality of its
presence, nevertheless leave its boundaries and limitations
indefinite, and impose upon the court the necessity, as
each case arises, to determine whether the particular stat-
ute falls within or outside of its appropriate limits." 21
To the same effect is State v. Moore. 22 I think the
above definition sound. It has been criticised 23 as endan-
gering the irretrievable loss of the Fourteenth Amend-
ment "in the illimitable or indescribable bounds of the
police power' 7 ; but I am unable to see how that amend-
ment wrought the slightest change in the police power
of the state. It surely was not designed to take from
the states the wonted necessary powers of government till
then inherent in their sovereignty for governmental pur-
poses. It created nothing new, defined nothing; simply
required that state action be governed by due process
of law; and acts legitimately within the police power
are clearly due process. The sole question in each case
i-. Ts this act one in its nature and character an act of
21 People v. Budd, 117 N. Y. 1, 15 Am. St. R. 460.
22 104 X. C. 714, 17 Am. St. R. 69C.
23 Note, 25 Am. St. R. 883.
176 RIGHTS AND PRIVILEGES UNDER
police \ If so, the Fourteenth Amendment does not affect
it. If it does, the state is virtually expunged as a govern-
ment.
The case of Railroad Company v. Husen 24 admits this
wide power in the states, and says that under it "the
state may protect the lives, limbs, health, comfort and
quiet of all persons and their property," according to the
maxim, sic utere tuo ui non alienum laedas, which, be-
ing of universal application, must be within the range of
legislative action to define the mode and manner in which
everyone may so use his own as not to injure others ;
that under the police power persons and property are
subjected to all kinds of restraints and burdens, in order
to secure the general comfort, health and prosperity of
the state ; of the perfect right to do which no question
ever was, or upon acknowledged principles ever can be,
made, so far as natural persons are concerned. It may
also be admitted that the police power of a state justifies
the adoption of precautionary measures against social
evils. Under it a state may legislate to prevent the
spread of crime, pauperism or disturbance of the peace.
It may exclude from its limits convicts, paupers, idiots
and lunatics and persons likely to become a public charge,
as well as persons affected with contagious disease, a right
founded, as said in the Passenger Cases, 7 How. 283,
in the sacred law of self-defense. The same principle
would justify the exclusion of animals having contagious
or infectious diseases."
2* 95 U. S. 465. See Austin v. Tennessee, 179 U. S. 343.
THti FOURTEENTH AMENDMENT. 177
Notwithstanding all this, the court held in the case
just cited that a statute prohibiting Texas, Mexican or
Indian cattle from entering the State of Missouri for a
period of three years, except in cars and boats not to be
unloaded in the state, was void. On principles conceded
by the court it is somewhat difficult to concur in this de-
cision, except on the ground that the act was more than
a quarantine regulation, and was not a legitimate exer-
cise of the police power, as it prohibited entry of the cat-
tle into the state absolutely, whether diseased or not,
without inspection to ascertain the fact. The case denies
absolute power in the legislature to judge whether the
necessity of the police regulation exists. The case is
probably decided rightly; but it goes very far to trench
upon the police power of the state. Note, however, that
it was not held that the Missouri act was forbidden by
Amendment Fourteen, but that it was contrary to the com-
merce clause. The court admitted that even that clause,
giving Congress power, as an affirmative grant of original
jurisdiction, to pass laws covering the whole field of in-
terstate commerce, does not forbid the exercise of police
power in a proper case.
Commerce Clause The power to regulate commerce be-
tween the states is conferred on the Congress by the origi-
nal Constitution, not by the Fourteenth Amendment,
as the latter has no relation to it. This grant is not
merely prohibitive, supervisory or corrective, but is an
original affirmative grant of power, excluding power of
the states on that subject; and whenever Congress makes
a regulation touching it, state regulation must yield. Un-
til Congress does make a regulation the state may enact
178 RIGHTS AND PRIVILEGES UNDER
police laws touching interstate commerce. 25 Indeed, it
is not easy to see why the state may not make what is a
proper police regulation, one really within the police
power, as to prevent contagion, pestilence or any dire
public disaster, though it impair interstate commerce, arid
this seems granted in Railroad v. Husen; 26 still some de-
cisions go to the effect that the powers of Congress are
here entirely paramount, the grant of power exclusive,
and that any regulation, even police, interfering with
interstate commerce is void, not under the Fourteenth
Amendment, but under Article 1, Section 8. 27
The Illinois court held that an act prohibiting anyone
from bringing into the state or owning Texas or Chero-
kee cattle was a valid exercise of the police power, and
that as the act was properly such, it did not raise the
question of constitutionality under the commerce clause. 28
I would think so. It can not be supposed that the states,
in adopting the Constitution, gave up to any extent this
function so essential to their very existence and health
and well-being.
Police Power can not be Granted Away. A strong argu-
ment for the position just stated is that it seems settled
that a state can not effectually grant or contract away,
or in anywise relinquish, its police power. 29 Certainly
25 Lake Shore v.-Ohio, 173 U. S. 285, 297.
2605 U. S. 465. Full discussion, Austin v. Tennessee, 179 U. S.
343.
27 Mobile v. Kimball, 102 U. S. 691, 697.
28Yeazel v. Alexander, 58 111. 254.
29 N. Y. Co. v. Bristol, 151 U. S. 567; Chicago & c. v. Chicago,
166 U. S. 266. See also Beer Co. v. Massachusetts, 97 U. S. 25;
Commonwealth v. Douglass, 100 Ky. 116, 66 Am. St. R. 328; People
v. Squires, 1 Am. St. R. 893; 3 Ell. R. R., Sec. 1082, N. 5; New-
buryport Co. v. City, 103 Fed. 584.
THE FOURTEENTH AMENDMENT. 179
it is there asserted that the provisions prohibiting states
from impairing the obligation of contracts, and from de-
priving of life, liberty and property without due process
of law are subject to this police power.
State Control of Property and Title. "The several states
possess power to regulate tenure of real property within
their respective limits, the modes of its acquisition and
transfer, the rules of descent, and the extent to which a
testamentary disposition of it may be exercised by its
owner." 30 This is under the police power.
Is Police Power Confined to States? The general rule
is stated to be that the police power belongs to the states,
not to the nation, except as to the District of Columbia
and the territories. 31 Does this mean that the nation has
no police powers at all ? If so, I doubt its correctness.
When the states granted the Union its powers, they grant-
ed police power to suit those functions. The nation pre-
scribes penalties for offenses against the mails and the
pension laws, counterfeiting national notes and coins, and
for many other criminal and penal acts. I do not see how
it can be said that as to functions committed to its charge,
but not further, the nation has no police power.
Act Making Railroad Liable to Passengers for injuries,
regardless of negligence on the part of the railroad, or
passengers, is a valid exercise of police power, and does
not violate the Fourteenth Amendment in depriving the
railroads of property without due process of law, and does
not deny them the equal protection of the laws. 32
30 U. S. v. Fox, 94 U. S. 315; Arndt v. Griggs, 134 U. S. 316; Clarke
v. Clarke, 178 U. S. 186; Abraham v. Casey, 17ft U. S. 210.
si U. S. v. De Witt. 9 Wall, 41.
32 Clark v. Russell. C. C. A. 97 Fed. 900.
130 RIGHTS AND PRIVILEGES UNDER
Act Making Railroad Liable for Fire from locomotives
absolutely has been held valid, and consistent with the
Fourteenth Amendment, because justified by the state's
police power. 33
Act Making Railroad Liable to Servants for negligence of
fellow servants held valid under the Fourteenth Amend-
ment, and due process, and does not deny equal protection
of the law. 34
Act Compelling Corporations to Pay Wages Every Month
held valid as due process, and not a denial of the equal
protection of the laws. 35
Act Requiring Railroads to Pay Railroad Commissioners.
The South Carolina act, requiring salaries and expenses
of a state railroad commission of regulation to be borne
by the railroad companies has been held to be not in con-
flict with the Fourteenth Amendment, either as depriv-
ing the corporations of property without due process, or
denying them the equal protection of the laws. 36 In the
first case cited the court said that the commission was
designed to render railroads safe and efficient as common
carriers, to protect life, to redress evils committed by cor-
porations holding special franchises from the state and
performing, not merely private functions and business,
but public functions and business in touch with public
interest, thus bringing them under the state power of
33 Railway Co. v. Mathews, 165 U. S. 1; same v. same, 174
U. S. 96.
s* Railroad v. Mackey, 127 U. S. 205; Tullis v. Lake Erie, 175
U. S. 348, 20 Sup. Ct. R. 136.
ss Skinner v. Garrett, 96 Fed. 735.
36 Charlotte, etc., Co. v. Gibbes, 142 U. S. 386; People y. Budd,
145 U. S. 175.
THU FOURTEENTH AMENDMENT. 181
police regulation pro bono publico; so that it could not
be charged that there was a deprivation of property with-
out due process; and that, as the act applied to all rail-
roads alike, it did not deprive them of equal protection
of the law.
Railroad Rates. Can a State Regulate Charges by rail-
roads and other agencies of public business consistently
with the Fourteenth Amendment ? To make such regula-
tions is clearly in nature an act of police. Even where
charters have impaired this power of police in the state,
as by licensing a lottery for a consideration paid for its
incorporation, and the grant of its privileges, it has been
held that "all agree that the legislature can not bargain
away the police power of the state. Irrevocable grants of
property and franchises may be made, if they do not im-
pair the supreme authority to make laws for the right
government of the state ; but no legislature can curtail the
power of it successors to make such laws as they may
deem proper in matters of police." It was held that the
state could annul the charter of the lottery. 37
There is a great difference, under the head now being
considered, between a private individual or a private
corporation using his property in carrying on a purely
private business, and a person or corporation carrying
on a public business, that is, one concerning and affecting
the public. The powers of police are in the latter case
much wider than in the former case. This police power in
government to regulate and control in charges and other
37 Stone v. Mississippi, 101 U. S. 814; Douglass v. Kentucky,
168 U. S. 488; Commonwealth v. Douglass, 100 Ky. 29, 66 Am.
St. R. 324, n. p. 333; Newburyport Co. v. City, 103 Fed. 584; Lake
*. & M. S. Ry. Co. v. Smith, 173 U. S. 684.
132 RIGHTS AND PRIVILEGES UNDER
respects in the latter case is very ancient, born of old com-
mon law, brought over the Atlantic by our forefathers,
and fully established and inherent in the states prior to
the Fourteenth Amendment. Lord Hale, more than two
hundred years ago, said that when private property was
"affected with a public interest, it ceases to be juris pri-
vati only." See his treatise, De Portibus Marls, 1 Ear-
grave's Law Tracts, 78. In his treatise, De Jure Marls, 1
Hargrave's Law Tracts, 6, Lord Hale said : "He [a pri-
vate person] may make a ferry for his own use, but not
for the common use of all the king's subjects pass-
ing that way; because it doth in consequence tend
to a common charge, and it becomes a thing of
public interest and use, and every man for his pas-
sage pays a toll, which is a common charge, and every
ferry ought to be under a public regulation, viz., that it
give attendance at due times, keep a boat in good order,
and make but reasonable toll, for if he fail in these he is
finable." In De Portibus Marls, 1 Hargrave's Law
Tracts, 78, Lord Hale further says: "A man, for his
own private advantage, may, in a port or town, set up a
wharf or crane, and take what rates he and his customers
can agree for cranage, wharfage, houselage, peasage; for
he doth no more than is lawful for any man to do, viz.,
makes the most of his own. ... If the subject have a
public wharf into which all persons who come to that
port must come and unload, or load their goods, because
there is no other wharf in that port ; in that case there can
not be taken arbitrary and excessive duties for cranage,
wharfage, peasage, etc., neither can they be enhanced to
an immoderate rate; but the duties must be reasonable
THE FOURTEENTH AMENDMENT.
and moderate, though settled by the king's license or char-
ter. For now the wharf and crane and other conveniences
are affected with a public interest, and they cease to be
juris privati only; as if a man set out a street near a
building on his own land, it is no longer bare private
interest." This old law makes the true test on which
modern decisions proceed. Is the business one purely pri-
vate, or is it in touch with the public weal and interest?
This doctrine was approved by Lord Kenyon. 38
Lord Ellinborough held the same. 39
These principles have been followed in America, The
Alabama court 40 was called upon to say whether a power
granted the city of Mobile to regulate the weight and price
of bread was valid, and it was contended that it interfered
with the right of the citizen to follow his lawful trade in
the mode his judgment might dictate ; but the court said :
"There is no motive . . . for this interference on the part
of the legislature with the lawful action of individuals,
or the mode in which private property should be enjoyed,
unless such calling affects the public interest, or private
property is employed in a manner which directly affects
the body of the people. Upon this principle, in this
state, tavern-keepers are licensed . . . and the county
court is required at least once a year to settle the rates
of inn-keepers. Upon the same principle is founded
the control which the legislature has always exercised
in the establishment and regulation of mills, ferries, turn-
pikes, roads and other kindred subjects."
ss Bolt v. Stennett, 8 L. R. 606.
312 East, 537.
*o Mobile v. Yuelle, 3 Ala. N. S. 140. See Inter-Ocean Pub. Co. T.
Asso. Press, 184 111. 438, 48 L. R. A. 568; People v. W. U. Tel. Co.
166 111. 15, 36 L. R. A. 637, 46 N. E. 731.
134 RIGHTS AND PRIVILEGES UNDER
On principles stated in several places in this work the
Fourteenth Amendment did not come to destroy the ex-
isting fabric of government, or to innovate upon and
derange it, but to defend rights existing according to the
established order of things, and did not abrogate this
healthful power of the state to fairly and reasonably,
for the public good, prevent extortion and abuse of fran-
chise, and to supervise and control persons or corpo-
rations carrying on business deeply concerning the pub-
lic, or business done under public grant of license, per-
mit or corporate franchise intimately and. widely affect-
ing public weal.
In Railroad v. Transportation Company 41 this grave
subject is fully discussed with signal ability and research
by the great Judge Green, and the court held that railroad
companies are common carriers in public business affect-
ing public interests, and subject to legislative control as
to rates of fare and freight, just as a natural person who
is a common carrier is ; that the company devotes its prop-
erty to public use, and thus grants the public an interest
in that property, we may say, and to the extent such in-
terest goes, the company must submit to public control
for the public good; that there is a marked difference be-
tween such corporations and purely private corporations.
The former may be called quasi-public corporations, and
the legislature has over their employment of property, so
devoted to a use in which the public has an interest, a
control which it would not have over the employment of
property of a purely private corporation.
"25 W. Va. 324.
THE FOURTEENTH AMENDMENT. 185
The legislature can generally exercise no control for-
bidden by the charter of a purely private corporation.
Though a railroad corporation is by a charter given
"power to contract in reference to its business as private
individuals," or to demand such rates for transportation
and storage as it deems reasonable, or, though its char-
ter fixes rates for it, and declares that they shall not be
reduced by the legislature, and though no right to re-
peal or alter the charter be reserved in the act grant-
ing the charter, still the legislature has right subsequently
to establish, "by general act," maximum rates and make
it applicable to railroads already operating under pre-
vious charter.
The said case further holds that "irrevocable grants of
franchises to corporations, which impair the supreme au-
thority of the state to make laws for the right government
of the state, must be regarded as mere licenses, not con-
tracts which bind future legislatures; for no legislature
can sell or give away the discretion of subsequent leg-
islatures in respect to matters the government of which
must, from the very nature of things, vary in varying cir-
cumstances." The case declares very broadly the in-
herent power of the legislature on the subject. I can
safely refer to that opinion as a lucid and sound analysis
of the subject, discussing its various phases. That case
largely followed the leading case of Munn v. Illinois 42
and the several cases called "The Granger Cases". 43 In
the Munn Case the holding is:
94 U. S. (4 Otto) 113.
"Chicago v. Iowa, and Peik v. Chicago Co. 94 U. S. (4 Otto.)
155 to 187.
186 RIGHTS AND PRIVILEGES UNDER
''Under the powers inherent in every sovereignty, a
government may regulate the conduct of its citizens to-
ward each other, and, when necessary for the public good,
the manner in which each shall use his own property. In
the exercise of these powers it has been customary in Eng-
land from time immemorial, and in this country from its
colonization, to regulate ferries, common carriers, hack-
men, bakers, millers, wharfingers, inn-keepers, etc., and
in so doing to fix a maximum of charges to be made for
services rendered, accommodations furnished and articles
sold. Down to the time of the adoption of the Fourteenth
Amendment to the Constitution of the United States it
was not supposed that statutes regulating the use, or even
the price of the use, of private property necessarily de-
prived the owner of his property without due process of
law. Under some circumstances they may, but not all.
The amendment does not change the law in this particu-
lar. It simply prevents the state from doing that which
will operate as such deprivation. When an owner of prop-
erty devotes it to a use in which the public has an in-
terest, he in effect grants to the public an interest in
such use, and must, to fhe extent of that interest,
submit to be controlled by the public, for the common
good, as long as he maintains that use. He may with-
draw his grant by discontinuing such use. Rights of prop-
erty and, to a reasonable extent, compensation for its
use, created by common law, can not be taken away with-
out due process; but the law itself, as a rule of conduct,
may, unless constitutional limitations forbid, be changed
at the will of the legislature. The great office of statutes
is to remedy defects in the common law as developed, and
THE FOURTEENTH AMENDMENT.
to adapt it to the change of time and circumstances. The
limitation by legislative enactment of the rate of charge
for services rendered in a public employment, or for the
use of property in which the public has an interest, estab-
lishes no new principle in the law, but only gives effect
to an old one. Where warehouses are situated and their
business is carried on within a state exclusively, she may,
as a matter of domestic concern, prescribe regulations for
them, notwithstanding they are used as instruments by
those engaged in interstate, as well as in state, commerce ;
and until Congress acts in reference to their interstate re-
lations, such regulations can be enforced, even though
they may indirectly operate upon commerce beyond her
immediate jurisdiction."
The court held an act of Illinois providing for inspec-
tion of warehouses for storage of grain, and making regu-
lation as to their business, and fixing maximum charges
for storing and handling grain, valid under the Fourteenth
Amendment, and as not depriving of liberty and property
without due process of law. In Chicago, etc., Co. v.
Iowa 44 it was held that "railroad companies are common
carriers for hire. Engaged in public employment affect-
ing the public interest, they are, unless protected by char-
ter, subject to legislative control as to rates of fare and
freight. The Burlington and Missouri Railroad Com-
pany has, within 'the scope of authority conferred by its
charter, and subject to the limitation thereby imposed, the
power of a natural person to contract in reference to
its business. Like such person it, or its assignee, is, under
94 U. S. 155.
138 RIGHTS AND PRIVILEGES UNDER
the same circumstances, at all times subject to such, laws
as the general assembly of the state may from time to time
enact."
It held the act fixing railroad rates valid, though the
charter gave the company right to fix rates.
In the case of Peik v. Chicago, etc., Company 45 the
court held valid acts fixing charges, deciding that "where
property has been clothed with a public interest the legis-
lature may fix that which shall in law be reasonable for
its use."
In Georgia Banking Company v. Smith 46 it is decided
that the grant by a state to a .railroad company of a fran-
chise giving it special privilege to condemn land, and the
obligation assumed by it to carry at reasonable rates, af-
fect it with public use, and gave the state legislative con-
trol, which may extend to fixing rates. These doctrines
have been often asserted by the Supreme Court. 47
A. railroad corporation must serve all alike. It can
give no preference as to serving in the line of its business.
It can not carry for one and refuse another. It may be
compelled to perform proper and equal service for all
by mandamus, and it is not thus deprived of property
without due process of law or denied equality before the
law. 48 So must other corporations. 49
But while these and other cases clearly and properly
give the state power by its legislature, notwithstanding
45 94 U. S. 164.
46 128 U. S. 174.
47 Dow v. Biedelman, 125 U. S. 680; R. R. Commission Cases,
116 U. S. 307; Wabash Co. v. Illinois, 118 U. S. 557, 569; Chicago
Co. v. Wilman, 143 U. S. 339, 344.
48 State v. Pacif. Co. 52 La. Ann. 28 So. 284.
40 Inter-Ocean Pub. Co. v. Asso. Press, 184 111. 438, 48 L. R. A. 568.
THE FOURTEENTH AMENDMENT.
the Fourteenth Amendment, to regulate, control and fix
charges for railroads or other corporations carrying on bus-
iness touching the general public, the power can not be
exercised tyrannically, oppressively, arbitrarily; it must
be exercised purely for the public good, and that in a
manner not destructive of the adverse interest; for, as
elsewhere stated, great as is the police power of a state,
everything done under its name can not be justified, but
must be a legitimate, necessary act of police, and must
pass under judicial review. The cases above cited have
been construed by some as giving the legislature unlimited
power to fix rates, and that only it, not the courts, had
right to say what rates are reasonable, and that the leg-
islative judgment was final. It is said that the later de-
cisions have seriously qualified Munn v. Illinois, and im-
paired the right of the states to protect the public against
wrong and extortion by railroad and other corporations. 49
It is not, can not be, claimed that the power to regulate
and fix rates has been withdrawn by later decisions; but
it is said that they do modify Munn v. Illinois in the point
of the finality of the judgment of the legislature as to
what are reasonable rates, the Munn Case and others above
cited making the legislative action final and conclusive.
The case is capable of such construction, but does not in
words say so. That was not the question before the
court. If such can be given as the true construction of
those cases, later cases have modified them. The case of
St L. & San Francisco Co. v. Gill 50 holds that an act
of railroad tariff rates so unreasonably low as to practi-
ce Note, 62 Am. St. R. 289.
so 156 U. S. 649.
190 RIGHTS AND PRIVILEGES UNDER
cally destroy the value of the property may be held by
the courts as a judicial question, and adjudged contrary
to the federal Constitution, because depriving the rail-
road company of property without due process of law. In
another case 51 an act fixing rates so low as to deny a rea-
sonable profit on the railroad investment was held viola-
tive of the Fourteenth Amendment in depriving the com-
pany of property without due process of law, and in deny-
ing it equal protection of the law.
It was held that the power to fix reasonable rates un-
doubtedly existed in the states; but that the claim that
any legislature, state or federal, "can conclusively deter-
mine for the people and the courts that what it may en-
act in the form of law, or what it authorizes its agents to
do, is consistent with fundamental law, is in opposition to
our institutions, as the duty rests on all courts, federal
and state, when their jurisdiction is properly invoked,
to see to it that no right secured by the supreme law of
the land is impaired or destroyed by legislation. The
reasonableness or unreasonableness of rates prescribed by
a state for the transportation of persons or property wholly
within its limits must be determined without reference to
the interstate business done by it or the profits from that
business. The state can not justify unreasonably low
rates for domestic transportation, considered alone, upon
the ground that the carrier is earning large profits on its
interstate business, over which, so far as rates are con-
cerned, the state has no control; nor can the carrier
justify unreasonably high rates on domestic business on
Is
siSmjth v. Amcjs, 169 U. S. 466; So. Western Union Co. v.
Wyatt, 98 Fed. 335.
THE FOURTEENTH AMENDMENT. 191
the ground that it may be able only in that way to meet
losses on its interstate business. A railroad is a public
highway, none the less so because constructed and main-
tained through the agency of a corporation deriving its
existence and powers from the state. Such a corpora-
tion was created for a public purpose. It performs func-
tions of the state. Its authority to exercise the right of
eminent domain and charge tolls was given primarily for
the benefit of the public. It is, therefore, under govern-
mental control subject, of course, to constitutional guar-
anties for protection of its property. It may not fix
rates with a view solely to its own interest, and ignore
the rights of the public ; but the right of the public' would
be ignored if rates were exacted without reference to the
fair value of the property used for the public or of the ser-
vices rendered, in order simply that the corporation may
meet operating expenses, pay interest on its obligations,
and declare a dividend to stockholders. If a railroad cor-
poration has bonded its property for an amount exceeding
its value, or if its capitalization is largely fictitious, it
can not impose upon the public the burden of such in-
creased rates as may be required to realize profits on such
excessive valuation or fictitious capitalization; and the
apparent value of the property and franchises used by
the corporation, as represented by its stock, bonds and ob-
ligations, is not alone to be considered when determining
reasonable rates. The basis of all calculations must be the
fair value of the property used by it for the convenience
of the public ; and to ascertain the value, the original cost
of construction, the amount expended in permanent im-
provements, the amount and market value of the bonds
192 RIGHTS AND PRIVILEGES UNDER
and stock, the present as compared with the original
cost of construction, the probable earning capacity under
the particular rates prescribed by statute, and the sum re-
quired to meet operating expenses, are all matters of
consideration and given such weight as may be just and
right in the case. What the company is entitled to ask
is a fair return on the value of that which it employs for
the public convenience; and what the public is entitled
to demand is that no more be exacted from it for the use
of a public highway than the services rendered by it are
reasonably worth/'
This denial of power in the state to deny rates which
will give a fair return on the investment is asserted in
other cases. 52
Can there be Exemption from Rate Regulations? This
sovereign right of a state by police power to regulate,
control and fix charges on railroads and other agencies
can not likely be relinquished in charters. 53 But in an-
other case it is assumed that the right of the state may be
thus restrained; 54 and in still another case 55 it is held
that if the exemption from legislative regulation as to rates
is clear and explicit in the charter, and inconsistent with
any power reserved by the state to that effect, it is a valid
exemption. The author would humbly suggest that it is a
very grave holding, one detrimental to the highest pub-
lic interests, one which may in process of years be dis-
52 Railway Co. v. Minnesota, 134 U. S. 418; San Diego Water
Works v. City, 118 Cal. 556, 62 Am. St. R. 261.
53R U ggles v. Illinois, 108 U. S. 526, 542; Chicago, etc., Co. v.
Minn. 134 U. S. 418.
54 Chicago, etc., Co. v. Iowa, 94 U. S. 155.
56 Georgia Bank v. Smith, 128 U. S. 174.
TEE FOURTEENTH AMENDMENT. 193
astrous to the public welfare, to say that a government can
thus barter away its highest powers of sovereignty, can
tie its hands forever from legislation necessary for the
public good ; that one legislature may forever put a rein
on the otherwise legitimate power of all succeeding leg-
islatures. The West Virginia case of Railroad Company
v. Transportation Company, 56 a well-considered one,
holds principles as to this point, different from the cases
just cited from the Supreme Court.
The doctrine of Munn v. Illinois, so far as it goes
to say that the power of the state to regulate rates is
consistent with the Fourteenth Amendment, has been
uniformly followed and insisted upon in many subsequent
decisions in the U. S. Supreme Court and in state courts.
In one case 57 it was held to apply to an act of the legis-
lature fixing rates for elevating, receiving and discharging
grain at an elevator owned by private individuals, as in
the Munn Case, because the private property was de-
voted to a business in which the public had an interest
Waterworks. In Spring Valley Waterworks v. Schlot-
ler 58 it was held that a town might fix water rates for
a waterworks company, when not forbidden by consti-
tutional limitations or contract obligation. The charter
allowed the corporation to take part in the choice of a
board of commissioners to fix rates, and the constitution
and law were amended so as to deprive the corporation of
this right. Held not to violate the Constitution of the
United States.
R6 25 W. Va. 324 ; Newburyport Water Co. v. City, 103 Fed. 584.
ST Budd v. New York, 143 U. S. 517. See also Brass v. Stoeser,
153 U. S. 391. Janvrin, petitioner, 174 Mass. 514.
ss 110 U. S. 347 ; see Janvrin Case, 174 Mass. 514; see Los An?ole
v. Los Angeles Co., 177 U. S. 558; Freeport Co. v. City, 186 111. 170.
194 RIGHTS AND PRIVILEGES UNDER
In Chicago Company v. Minnesota 59 an act estab-
lishing a railroad and warehouse commission, and making
the rates of transportation fixed by it final and conclu-
sive, was, because of that conclusive feature, held re-
pugnant to the Fourteenth Amendment as depriving the
company of property without due process of law and
denying it equal protection of the law. A later case
so holds. 60 But another case 61 holds that the case of
Chicago Company v. Minnesota, supra, does not antag-
onize or qualify Munn v. Illinois (94 IT. S. 113).
In a later case 62 an act required railroad thousand-
mile tickets to be sold at a fixed rate, and to be good
to the purchaser and wife and children, valid for two
years, and to be redeemed, so for as unused, within
thirty days after the two years. The act was held void
under the Fourteenth Amendment as taking property
without due process and denying equal protection of the
law, the court saying that while the state had right by gen-
eral and equal law to fix maximum rates, this was an act
applicable only to wholesale purchasers at lower rates,
leaving other people liable to the usual higher rate fixed
by the general law, interfering with the management of
the affairs of the company by fixing the running time of
tickets at double the former period and lower rates, and
making the tickets good to all the members of the family.
It was adjudged to be not a reasonable exercise of the
police power. Still, the court is careful to say that the
59134 U. S. 418.
eo Regan v. Farmers Loan, 154 U. S. 362.
61 Budd v. New York, 143 U. S. 517.
62 Lake Shore v. Smith, 173 U. S. 684.
TUB FOURTEENTH AMENDMENT. 195
act which it passed upon was exceptional in character
owing to its peculiar features, and the court further
said that it was not intended to interfere with the power
of the legislature over railroads as corporations or com-
mon carriers, "to so legislate as to fix maximum rates
to prevent extortion or undue charges, and to promote
safety, health, convenience or proper protection of the
public; but it only says that the particular legislation
under review in the case does not partake of the character
of legislation fairly or reasonably necessary to attain any
of those objects, and that it violates the federal Constitu-
tion as above stated."
The Court of Appeals of New York in Beardly v. N".
Y. L. E. & W. Company, 63 held a similar act void, saying
that it yielded to the power of the federal Supreme Court
as expressed in the case of Lake Shore v. Smith, just
above cited.
Rate Regulation must not Destroy Company Control.
The power above stated of a state legislature to regulate
rates of transportation and the like can not carry with it
the right to invade the lawful power of the company to
manage, conduct and control its own business, to hamper
or restrict its general control of its property in the trans-
action of its legitimate business. The said power of reg-
ulation includes only powers reasonably necessary and
calculated to promote public welfare in furthering the
objects above specified. Whenever, forgetful of these
high public, impartial behests, the legislature acts out of
mere prejudice against a corporation, ignoring all idea
s 56 N. E. R. 488 ; 162 N. Y. 230.
196 RIGHTS AND PRIVILEGES UNDER
that it has any rights which the legislature is bound to
respect, it is not constitutionally exercising salutary police
powers, but only unfair, arbitrary power.
Power to Regulate, not Power to Destroy. The cases
above cited, as also Railroad Commission Cases, 64 declare
that this power to regulate is not power to destroy. They
hold that power in a state to limit the amount of rail-
road charges can not be granted away by its legislature,
except by positive words, or their equivalent, in the grant ;
that a grant to a company from "time to time to fix, reg-
ulate and receive tolls and charges," does not deprive
the state of power, within the limits of its general author-
ity, as controlled by the federal Constitution, to act on
the reasonableness of tolls so fixed; but from what has
been said it is not to be inferred that this power of limi-
tation or regulation is itself without limit. This power
to regulate is not a power to destroy, and limitation is
not the equivalent of confiscation. Under pretence of reg-
ulating fares and freights the state can not require a
railroad corporation to carry persons and property with-
out reward; neither can it do that which in law amounts
to a taking of private property for public use without
just compensation or without due process of law. This
doctrine is held also in Reagan v. Farmers Loan. 65
What are Reasonable Rates? This question is largely
at^sea. It would seem that the power of the state to fix
rates being once conceded, its action by its legislature on
mere amount ought to be conclusive, the legislative judg-
ment seeming to be as good as that of judges on such a
6*116 U. S. 307.
65 154 U. S. 399.
THE FOURTEENTH AMENDMENT. 197
subject. The nature of the function is purely legislative.
The Supreme Court admits that no court can fix the rates,
though it can overthrow those fixed by the state legislature.
It seems to me that there is an inconsistency here. With
great deference I would think that the question of amount
of rates is solely for the legislature, not for the courts,
as is strongly stated by Justice Bradley for himself and
Justices Brewer and Lamar in the case cited in the foot-
note. 06 But it is said that the fabric of our government
implies, and the general understanding is, that as the leg-
islature usually proceeds ex parie, without hearing the
ether side, the great maxim of justice, Audi alteram par-
iem, is" controlling, and that where two grave adverse in-
terests are involved, their rights must be brought to ju-
dicial hearing and test. Such is the decree in this mat-
ter of our courts, federal and state. But while the rates
fixed by the legislature are not absolutely conclusive, they
are well-nigh so; 67 they must be transparently unreason-
able to be overthrown ; they are more than prima facie
reasonable.
"Courts assume that the legislature intended to pro-
mote the public interests, and where the act admits of
two constructions, one making it in furtherance of those
interests, that will be given it." If it may serve such in-
terest, it is enough. 68
"Courts will not inquire into the motives of legisla-
tors in enacting laws, except as they are disclosed on
the face of acts, or be inferable from their operation,
c Chicago, etc., Co. v. Minnesota, 134 U. S. 461.
e? People v. Budd, 117 N. Y. 25.
s People v. Warden, 144 N. Y. 529.
198 RIGHTS AND PRIVILEGES UNDER
considered with reference to the condition of the country
and existing legislation. The motives of legislators, con-
sidered as to the purposes they had in view, will always be
presumed to be to accomplish that which follows as the
natural and reasonable effect of their acts." 69 On this
principle I would think the presumption would be that a
fair, impartial motive in fixing railroad rates to promote
the public weal as well as accord the railroad its rights
existed. The courts can not establish rates ; but may enjoin
the enforcement of unjust rates, and call for their rees-
tablishment by the legislature, or the state board charged
with the duty. 70 In the Reagan Case the court says that
it would not declare that there might not be a case where
rates not allowing any return on investment might be
tolerated, as in cases where money had been wasted in con-
struction, or in inordinate salaries or other profligacy. The
cases seem to say that where the rates fixed by the legis-
lature secure some return on the investment, the legisla-
tion is valid. Where the legislation goes further than
mere regulation, and deprives the company of its legit-
imate control, or has other features than mere amount of
charge, which take from it the cast of legitimate police
action, it is not valid.
Board to Fix Rates The legislature may itself by its
act fix rates of freight or passage, or, as is done in most
states, constitute a board or commission to adjust rates,
and make legitimate, general regulations for railroads.
69 Soon King v. Crowley, 113 U. S. 703.
70 Reagan v. Farmers Loan, 154 U. S. 400; San Diego Water Co.
v. City, 62 Am. St. R. 261.
THE FOURTEENTH AMENDMENT. 199
Such board is an administrative body, not legislative,
constituted to carry out the will of the legislature. 71
This doctrine of state power to control railroads and
fix rates is asserted by many state cases. 72
State Regulation of Rates Applies to Other Companies
besides Railroads. It will not be out of place to repeat,
for emphasis, that this power of the state to make rates
and other regulations bona fide for public good is not only
applicable to railroads, but applies to individuals, with
or without state license, or to corporations devoting prop-
erty to public use, so that the general public has an inter-
est in such use, in any business not in nature private,
but closely in touch with the public. The public weal
demands this power. It is justified under the police
power, and is consistent with the Fourteenth Amend-
ment. Munn v. Illinois 73 and other Supreme Court
cases so hold. So do state cases. 74
This subject, especially as to railroads, is of grave and
daily importance, and therefore I have devoted consider-
Ti Reagan v. Farmers Loan, 154 U. S. 362.
72 Railroad Co. v. Transport Co. 25 W. Va. 324; Rugglea -
People, 91 111. 256; Railway v. Railway, 30 Ohio St. 604.
"94 U. S. 113.
74 San Diego Water Co. v. City, 62 Am. St. 2bl (Waterworks) ;
People v. N. Y. 145 U. S. 175 (Electric Works) ; Missouri Co. v.
Maekey, 127 U. S. 205 (Fellow-servants); Spring Valley Co. v.
Schlotler, 110 U. S. 347 (Waterworks) ; State v. Columbus, 34
Ohio St. 572, 32 Am. R. 390; Nash v. Page, 80 Ky. 539, 44 Am. R.
490 (Tobacco Warehouse) ; Hacket v. State, 105 Ind. 250, 55 Am.
R. 201 (Telephone) ; Parker v. Metrop. Co. 109 Mass. 507 (Ferry) ;
State v. Gadner, 58 Ohio St. 599, 51 N. E. 136; Dent v. W. Va. 129
U. S. 114 (Physicians) ; State v. Webster, 50 X. E. 750, 41 L. R. A.
212 (Physician); 14 L. R. A. 581 (Dentists); The Bread Case,
Mayor v. Yuille, 3 Ala. 37 (Regulating price of bread and requir-
ing license to sell it).
200 RIGHTS AND PRIVILEGES UNDER
able space in the effort to outline the general principles
laid down by the courts touching it.
Private Business not Subject to such Regulation. Con-
ceding the right to the states to enact police regulations
where private property is devoted to public use, so far as
to give an interest to the public in that use, yet where the
business is purely private this wide police power does
not exist. While guarding the public right and welfare,
we must not forget the person's right; we must not sub-
merge the right of the individual in the ocean of public
right. There must not be too much government interven-
tion. Where such is the case, government is not free, but
tyrannic. Was it Jefferson who said, "The world is gov-
erned too much" ? Government was not originated to be
either tyrannic or merely paternal. All men are free by
nature. They have certain inalienable rights, says the
Declaration of Independence. When they enter into the
body politic they do not give up these rights. They have
not done so in words, and no mere implication arising
simply from their membership in the civil organization
should be indulged in to divest them of these rights.
They have right of life, right of property, and with
the aid of property as a handmaid to earn a livelihood in
their own ways, not harming others. They have right
to labor, right to contract, right to do business. These are
rights of liberty, inhering in and sheltered by the word
"liberty" expressed in the Constitution, as above shown.
Legislation for the high public behest of public safety
and welfare can justly detract from those rights, but not
otherwise. No call but a necessary public want can do so.
The public must have, in the instance of the particular act
THE FOURTEENTH AMENDMENT. 201
of government, a right to demand it. All the law of police
as shown in preceding pages, tells us this. As Webster
said, every act of the legislature, though such in form,
is not due process of law; so every act claiming to be an
act of police, is not necessarily one of legitimate police.
I have elsewhere cited authority for this. 75 Many acts
sought to be justified by the police power, when brought
to judicial test, have been overthrown because wanting
the true quality of police. I have elsewhere given in-
stances of this (p. 173). Take the West Virginia act
prohibiting persons engaged in coal-mining from is-
suing in payment of wages any order on a store or
paper payable in anything else than money. In
State v. Goodwill 76 it was held violative of the
Fourteenth Amendment, because it forbade certain
contracts by coal operators, thus bearing not on others,
and denying equality before the law, and infringing upon
the liberty of both employer and employee to purchase
and sell labor for what the contracting parties might
choose. The court held: "It is not competent for the
legislature, under the constitution, to single out owners
and operators of mines and manufacturers of every kind,
and provide that they shall bear burdens not imposed on
other owners of property or employers of labor, and pro-
hibit them from making contracts which it is competent
for other owners of property or employers of labor to
make. Such legislation can not be sustained as an act
of the police power." The opinion by the eminent Judge
Snyder is a lucid exposition of constitutional law.
75 See cases cited in Palmer v. Tingle, 55 Ohio St. 423.
7fl 33 W. Va. 179, 25 Am. St. R. 863.
202 RIGHTS AND PRIVILEGES UNDER
In another West Virginia case 77 an act prohibiting
persons engaged in mining and manufacturing, and inter-
ested in selling merchandise, from selling to employees at
greater percent than to others, was held contrary to the
Fourteenth Amendment, because it was class legislation,
and an interference with the freedom of contract, both in
employer and employee. The court said: "The statute
is a Procrustean bed. It consigns all sizes and conditions
to the same measure of treatment, regardless of their dif-
ferences. It excludes all freedom in trade, and all con-
siderations of mutual benefit, and even charity. If the
employer sells goods to the family of some friend in in-
digent circumstances at less than cost, then, under this
statute, he must sell at the same price to all his employees.
But it is unnecessary to illustrate the vices, the crudities
and the injustice of the statute. That it is an attempt to
do for private citizens, under no physical or mental dis-
ability, what they can best do for themselves, is appar-
ent. It selects miners and manufacturers as a class, and
denies to them privileges which are not only proper and
legitimate in themselves, but also to some extent neces-
sary and unavoidable in the conduct of business; privi-
leges which concern private affairs solely, and which are
enjoyed by all other classes of citizens. It is an attempt
on the part of the legislature to do what, in this country,
can not be done; that is, prevent persons who are sui
juris from making their own contracts. The act is an
infringement alike of the right of the employer and the
employee. More than this, it is an insulting attempt to
77 State v. Fire Creek Co. 33 W. Va. 188, 25 Am. St. R. 891.
Tilt} FOURTEENTH AMENDMENT. 203
put the laborer under legislative tutelage, which, is not
only degrading to his manhood, but subversive of his
rights as a citizen of the United States. Godcharles v.
Wigeman, 113 Pa. St. 431, 6 Atl. E. 354." Such acts
violate principles of liberty, as heretofore explained
(p. 00). They deny equality before the law. They vio-
late the state constitution; they violate the Fourteenth
Amendment.
In a later case 78 similar principles were involved.
One act forbade the issue of scrip, token or draft not
payable in money in payment of wages. Unlike the act
involved in the Goodwill Case, it applied, not to coal
operators only, but to all. Thus it was not class legisla-
tion. The other act required coal operators to weigh coal
and pay for it weighed in the rough before being
"screened" for market. , The case is erroneously pub-
lished. It is published as if the syllabus were law in
West Virginia. It is not, the court being equally divided,
and therefore the case is not law except in the particular
case by affirmance of the judgment below. The author
took part in the decision of the case, and denied the valid-
ity of the acts on the ground that the business acted upon
by the "screening act" was private business, not so in
touch with the public as to justify regulation in its con-
duct under the police power; and also because both acts
infringed upon the right of private contract, impairing
the right essential to both employer and employee to con-
78 State v. Peel Splint Coal Co. 36 W. Va. 802, 15 S. E. 1000.
See Harding v. People, 160 111. 459, 52 Am. St. R. 344, holding such
legislation void. See also lucid case, Harbison v. Knoxville Iron
Co. 103 Tenn. 421. In re Preston (Ohio. Nov. 1900), 59 N. E. 101,
holds screening act void.
204 RIGHTS AND PRIVILEGES UNDER
tract for labor on such terms and payment as might be
agreed, and denying liberty and depriving of the use of
property without due process. The right of lawful con-
tract in the conduct of lawful business, by persons com-
petent to contract, can not thus be infracted. Every
business is to a degree public; the coal operator's not
more so than, not as much as, the farmer's ; and who would
deny the farmer privilege to contract in the conduct of his
business ? Such legislation has been held invalid in some
states, valid in others.
The acts against paying wages in orders on stores re-
deemable not in money, but in commodities, spring from
the English "Truck Act" of 1831, or rather from old
acts commencing as early as 1464, first touching one kind
of manufacture, then another, then many. They are
born of the good motive of protecting men of small means
dependent upon their labor for bread, and placed in the
power of wealthy employers, and therefore compelled to
contract for the sale of their labor at a disadvantage ; and
the acts go upon the theory that they are legitimate police
regulations, because the business they touch "is affected
with a public interest," and that where this is so, the legis-
lature may legislate for the general weal, as in the case
of railroads and other common carriers, or gas or water
companies for public supply, or hotels, mills, warehouses
and the like, under principles stated above (p. 185) from
Munn v. Illinois. 79
On the other hand, it is asserted for the other view
that coal-mining or other like private business is by com-
794 U. S. 113.
THE FOURTEENTH AMENDMENT. 205
inon law not like common carriers and others just named;
that it is not monopoly; that the public is not compelled
to resort to those who sell coal, wood, grain or animals,
though they do deal with the public in things necessary
for subsistence or convenience, as all in any business must
do. License from the public is not necessary to carry
on these vocations. And they say, moreover, that this is
a free government, where everybody has a right to earn
a living and pursue happiness by selling his labor or his
goods, or making any legitimate contract, a right of
liberty and a right of property embedded in the Consti-
tution. They say that in a free government all these
rights must exist, and that mere accidental hardships
can not be relieved by infraction of fundamental prin-
ciples of equality before the law. Locke stated the rule
for legislators now incorporated in the equality clause v
of the Fourteenth Amendment: "They are to govern
by promulgated, established laws, not to be varied in
particular cases, but to have one rule for rich and poor,
for the favorite at court and the countryman at the plow."
In Commonwealth v. Perry 80 an act that the employ-
er should not deduct from wages for bad weaving, as
per contract, was held void as a denial of the right "of
acquiring, possessing and protecting property." The act
made a man pay for bad weaving, though he would not
have to pay for a badly-built house class legislation.
In Frorer v. People 81 an act requiring wages to be
paid in money, prohibiting those engaged in mining and
manufacturing from having "truck stores" for selling or
so 155 Mass. 117, 31 Am. St. R. 533.
si 141 111. 171.
RIGHTS AND PRIVILEGES UNDER
furnishing to laborers groceries, clothing, tools, etc., was
held unconstitutional as class legislation, placing bur-
dens on some persons not imposed on others, and impair-
ing the right of contract; but as to matters wherein min-
ing and manufacturing differed from other industrial
branches they were subject to legislative regulation; but
keeping a store was a lawful business, not connected with
mining or manufacturing; that the right to contract is
both liberty and property, and denial of it a deprivation
of both; that if A is denied right to contract and acquire
property as before, and others are left free to do so, A
is deprived of both liberty and property; that the police
power is limited to the protection of comfort, safety and
welfare of society, but under it one can not be deprived
of a constitutional right, such as the right of an adult
of sound mind to make contracts as to labor and acqui-
sition of property, under pretence of giving such person
protection. In Ramsey v. People 82 an act requiring coal
to be weighed before screening and the mining to be paid
for on such weight, was held to deprive of liberty and
property and right of contract without due process.
In Bracewell v. People 83 an act requiring weekly pay-
ment of wages by corporations was held violative of liber-
ty, class legislation, deprivative of right to contract and
acquire property.
So an act declaring void all contracts for mining coal
in which weighing coal at mines was dispensed with was
held unconstitutional. 84
82 142 111. 380. So In re Preston, 59 N. E. 101.
ss 147 111. 66, 37 Am. St. R. 206.
s* Millet v. People, 117 111. 294, 57 Am. R. 869.
THE FOURTEENTH AMENDMENT. 9QJ
In another case 85 an act prohibiting any persons or
corporations engaged in manufacturing or mining from
paving wages in any order not redeemable in money, but
in goods at the store of the person or corporation issuing
it, was held to violate due process of law.
An act forbidding any payment of wages by a manu-
facturer in anything but money was held void "inasmuch
'as by it an attempt is made to do what in this country
can not be done, that is, prevent persons who are sui
juris from making their own contracts." 86
"The legislature can not interfere with the right of par-
ties to contract on matters purely and exclusively private,
unaffected by any public interest or duty to society, to
person or government." 87
The Fourteenth Amendment does not guarantee the
right to contract within the state contrary to its laws. 88
I hardly think that Shaffer v. Union Company 89 can
be said to hold squarely against the above principles,
the main question in it being the prohibition of the as-
signment of wages by employees; a doubtful decision,
as it seems to me, because it took away from a certain
class of people the right to sell a debt, that is, property,
leaving the right open to others.
An Indiana statute prohibited a contract in advance
to receive wages in anything but money, and it was held
valid as protecting and maintaining lawful national
85 State v. Loomis, 115 Mo. 307.
se Goodcharles v. Wigeman, 113 Pa. St. 431.
8?Leep v. Iron Mountain Co. 58 Ark. 407, 23 L. R. A. 264.
See Whito Preast Co. v. People, 175 111. 51.
*s Hooper v. California, 155 U. S. 648; Williams v. Fears, 179 U.
S. , 21 Sup. Ct. 230.
855 Md. 74.
208 RIGHTS AND PRIVILEGES UNDER
money. 90 That was given as the reason of the judgment.
I should doubt the rationale of the decision. Plainly,
the thing prohibited by the act could not appreciably
militate against the government credit or the efficacy of
its circulating medium. It is not certain whether the
decision does or does not contest the general principles
above stated.
In State v. Wilson 91 is a very able opinion holding
valid an act which prohibited the screening of coal before
weighing, as regards payment for mining, in cases where
it is mined at a certain rate per ton or quantity.
Dayton v. Barton 92 holds an act requiring store or-
ders issued for wages to be paid in money not contrary
to the Fourteenth Amendment.
The Kansas act above adverted to, making it unlawful
to pay wages in scrip, token or credit order, redeemable
in anything else than money, was again held consistent
with the Fourteenth Amendment by the Kansas Court
of Appeals; 93 but the decision was reversed in the Su-
preme Court of the state. 94
An act which prohibited railroad and mining corpora-
tions, their officers or agents, doing business in a county
from having a store, or any interest in a store, in such
county, was held to violate the Fourteenth Amendment,
in denying equal protection of the law, and such classi-
o Hancock v. Yaden, 121 Ind. 366, 16 Am. St. R. 396.
9i7 Kan. App. 428, 58 Pac. 981.
9253 S. W. R. 970. Also Harbison v. Knoxville Iron Co. 103
Tenn. 421.
3 Haun v. State, 54 Pac. 130, 7 Kan. App. 509.
4 State v. Haun, 59 Pac. 340, 61 Kans. 146.
TH& FOURTEENTH AMENDMENT. 209
fication of corporations and persons as interfered with
their liberty. 95
A late Tennessee case 96 holds that an act requiring
those issuing such store orders in payment of wages to
redeem the same in money does not violate the Fourteenth
Amendment in taking property without due process of
law.
The question in such cases as those referred to above
is, What is a business "affected with a public interest,"
so as to justify legislative regulation under the police
power? This is a very difficult question. As has just
appeared, the courts divide upon it. It is very easy to
state general principles, in this instance as in others, but
the practical application of those principles to particular
cases as they arise is a matter of perplexity and produc-
tive of variant decisions.
Inspection and Ventilation of Coal Mines Legislation
requiring this at the hands of coal operators is very gen-
eral in the states of the Union, and is designed for the
protection of both the lives and health of the thousands of
those who toil in the deep, dark coal-mines, amid great and
constant dangers from deadly gas that infests them and
the foul air in them. The great police power has its
plainest application in regulations necessary or expe-
dient for the preservation of the lives and health of the
people. It is very plain that this power will vindicate
abundantly the enactment of such legislation. It is true
that coal-mining is a private business, and so far merely
as that feature of it is concerned, some of the ablest
ssLuman v. Kitchens, 44 Atl. R. 1051 (Md.)
6 Harbison v. Knoxville Iron Co. 53 S. W. R. 955, 103 Tenn. 421.
210 RIGHTS AND PRIVILEGES UNDER
courts of the land have sternly maintained, by decisions
given in the last preceding pages, that the legislature has
no constitutional power to so interfere with such business
as to deprive coal operators and their employees of free-
dom of contract; but that is an entirely different mat-
ter from the power of the legislature to so far interfere
in such business, private though it be, as to protect the
many thousands of people in their health and their lives.
Such is the legislation of which we now speak. Nor is
the fact that hundreds of thousands of people work in
these mines night and day the justification of such leg-
islation. Some have appealed to that consideration 'to
justify the legislature in dictating what shall be the char-
acter of contracts between coal operators and their em-
ployees, what contracts between them shall be void, how
wages shall be paid, saying that the business is so wide-
spread as to touch public interest, and thus justify in-
tervention; but that is no valid argument the mere size
of the business. We must look at the purpose of the
legislation, the evil to be remedied or avoided, to test
whether given legislation is a legitimate exercise of the
police power. Legislation must allow people to make a
living; it does not actively help them to do so by inter-
vening between persons competent to contract in favor of
the one over the other; but the legislature has the clear-
est right to legislate to protect the health and lives of
the many thousands. Under these principles there has
been very little question of the validity of legislation for
the inspection and ventilation of coal-mines. An act re-
quiring coal-mines to be inspected and ventilated to pro-
tect miners from the foul air and dangerous gases, and
TUB FOURTEENTH AMEXDUEXT. 211
requiring mine-owners to pay the inspection fees, was
held to be a valid exercise of the police power, and that
such payment of inspection fees was for services beneficial
to the owners of the mines. 97
It has also been held that legislation requiring the in-
spection of grain and the payment of fees therefor by
the grain-owners was lawful legislation. 98
Delegation of Police Power. The great police power
resides in the state; but it is impossible that the state
should itself be present in every instance to enforce police
regulations, or that it should provide for the multitudi-
nous instances of its exercise by legislative acts. The
whole time of the legislature would be thus consumed;
its acts would be endless; the thing would be utterly im-
practicable. Hence the necessity of the delegation of
some of this power to cities and other municipal corpo-
rations, and to counties, districts or townships. They are
parts of the state government for this purpose. They
represent the state in making and enforcing laws proper
and appropriate to execute the functions assigned to them
as agencies of the state in the administration of govern-
ment. The delegation of authority to make and enforce
such laws is entirely within the competency of the legis-
lature, provided the delegation empowers such municipali-
ties and other subdivisions of the state to exercise only
such functions as are appropriate to them. In such case
no one who is affected by the ordinances of such munici-
pal corporations or counties, or their enforcement, can
7 Chicago, etc., Co. v. People, 181 111. 270; Consol. Coal Co. v. Peo-
ple, 186 111. 134.
People v. Harper, 91 111. 357.
212 RIGHTS AND PRIVILEGES UNDER
complain that he is deprived of his property or liberty
contrary to the Constitution without due process of law."
Municipal Ordinances, to be valid as an exercise of police
power, are presumed to be reasonable and necessary, and
to make them invalid, he who asserts that they are not
a reasonable exercise of the power, must show it; but if
unreasonable or oppressive and destructive of private
right, and such ordinances do not reasonably tend to car-
ry out the purposes of the municipal corporation, for
which it exists, do not tend in any degree to execute its
lawful functions, the courts may hold such ordinances
void. 100
Municipal Corporations can not Delegate Their Power.
Whilst a state may, in certain cases, as just shown, confer
on municipal corporations, and other subdivisions of the
state, power to enact and enforce ordinances and resolu-
tions within the scope of their assigned authority, they
can not again delegate to any of their officers or others
such powers as are legislative in their nature. Here ap-
plies the maxim, Delegata potestas non potest delegari,
delegated power can not be redelegated. The municipal^
ity may commit to certain officers the performance of
mere ministerial functions, or judicial functions in the
enforcement of its laws ; but it can not delegate the power
to make law. The powers of a municipal corporation
9 Walker v. Jameson, 140 Ind. 591, 49 Am. St. R. 222; Town
V. Davis, 40 W. Va. 464; 32 Am. & Eng. Corp. Gas. 374.
iao Town v. Davis, 40 W. Va. 464 ; Teass v. St. Albans, 38 W. Va.
1; Mayor v. Dry Dock, 133 N. Y. 104, 28 Am. St. R. 609; Note
34 Am. Dec. 633; Steffy v. Monroe, 41 Am. St. R. 436; Noel v. People,
187 111. 587.
THE FOURTEENTH AMENDMENT. 213
can not be exercised vicariously. 101 Such an ordinance
would not be due process.
Screens before Saloon Windows Ordinances Requiring
Their Removal Held Void. 102
Cigarettes. An act forbidding the sale of cigarettes
made in or out of the state is valid. 103 This legislation is
based on the police power of the state to protect and pre-
serve the public health. If the act had made the sale of ciga-
rettes manufactured outside of the state, in original pack-
ages illegal, it would likely be void under the commerce
clause.
"Later I observe that the Supreme Court, in November^
1900, in Austin v. Tennessee, holds that the Tennessee
act forbidding sale of cigarettes wherever made valid, and
that the small packages of cigarettes, about two by four
inches, loosely thrown into baskets uncovered, brought
from another state, were not original packages."
Ordinance against Collecting and Storing Old Rags and
Paper in thickly settled parts of a city held a valid exercise
of police power for the public health. 104
City Sanitary Regulations. Under principles above
stated municipal corporations have unquestionable power
to make any reasonable sanitary regulation, and declare
things public nuisances, if essentially so in nature, and
abate them. It can require householders to store garbage
101 Richards v. Clarksburg, 30 W. Va. 491, 20 Am. & Eng. Corp.
Cas. Ill; City v. Trotter, 32 Am. & Eng. Corp. Cas. 372, and
full note.
102 Steffy v. Monroe, 41 Am. St. R. 436.
103 Austin v. State, 101 Tenn. 563, 70 Am. St. R. 703, 179 U. S:
343.
104 Commonwealth v. Hubley, 172 Mass. 58, 70 Am. St. R. 242.
214 RIGHTS AND PRIVILEGES UNDER
in proper places and in proper receptacles convenient for
removal, so as not to breed disease or offend the public. 105
Hours of Labor in Mines. A statute limiting hours of
labor in mines was held invalid, because not an act of
police to protect the health of the public at large, but
only miners. 106 How do these cases harmonize with Hoi-
den v. Hardy? 107 Such a law was held valid in an-
other case. 108
Barbers Closing Sunday. An act requiring barbers to
close their places of business on Sunday has been held
to be not contrary to the Fourteenth Amendment. 109
Whilst the cases above so hold, yet I observe that similar
legislation has been held not constitutional. 110 An act
prohibiting barbers from keeping open their bathrooms
on Sunday was held unconstitutional, for the reason that
it applied to no one else, and denied to the barbers equal-
ity before the law, and was class legislation. 111
Laundries. An ordinance regulating laundries violates
the Fourteenth Amendment, if it confers on municipal
authorities arbitrary power, at their own will, without
regard to discretion in a legal sense, to give or withhold
105 Walker v. Jameson, 140 Ind. 591, 49 Am. St. R. 222.
106 l n re Morgan (Colo.), 58 Pac. 1071; In re Eight Hour Labor
Bill, 21 Colo. 29; Low v. Rees Printing Co. 41 Neb. 127. (Full
discussion) ; Ritchie v. People, 154 111. 98, 29 L. R. A. 79.
107169 U. S. 366; and Petit v. Minnesota, 177 U. JS. 164.
108 Short v. Bullion, 45 L. R. A. 603.
io Petit v. Minnesota, 177 U. S. 164; 20 Sup. Ct. 666; People
v. Bellet, 99 Mich. 151, 57 N. W. 1094, 22 L. R. A. 696; People v.
Havnor, 149 N. Y. 195, 31 L. R. A. 689; Judefind v. Maryland, 22
L. R. A. 721; Breyer v. State, 102 Tenn. 103. See Hennington v.
Georgia, 163 U. S. 299.
no Eden v. People, 161, 111. 296, 32 L. R. A. 659.
mRagio v. State, 86 Tenn. 272.
THE FOURTEENTH AMENDMENT. 215
consent, to carry on laundries, as to persons or places,
without regard to the competency of the person or pro-
priety of the place. Administration of an ordinance for
carrying on lawful business violates said amendment if it
makes arbitrary and unjust discrimination founded on
race between persons otherwise in similar circumstan-
ces. 112 But an ordinance requiring laundries to be oper-
ated only between certain hours in certain districts was
held valid. It was said that it was no objection to the
ordinance that other business might be carried on with-
in the same hours. 11S
Stated Period for Payment of Wages. An act requiring
the payment of wages weekly was held valid as an act of
police by an opinion of all the Massachusetts supreme
judges. 114 An act requiring corporation to pay wages
monthly was likewise held valid. 115
Nuisance. Property may be destroyed. The powers
of a municipal corporation for the abatement of public
nuisances are very large. We may say that all muncipal
corporations are vested with such power under state stat-
utes. They are more essential to municipal corporations
than to other agencies of the government. The good or-
der, safety, health, morals, growth and general well-being
of cities and towns could not be protected, promoted or se-
cured without this great power. Even without statute a
ii2Yick Wo v. Hopkins, 118 U. S. 356: Soon Hing v. Crowley,
113 U. S. 703; 7 Am. & Eng. Corp. Cas. 646; Ex parte Sing Lee,
31 Am. St. R. 218. 24 L. R. A. 195.
ii3Barbier v. Connolly, 113 U. S. 27, 7 Am. & Eng. Corp. Gas.
640; Soon Hing v. Crowley, 113 U. S. 703, 7 Am. & Eng. Corp. Caa.
646.
in 163 Mass. 589.
us Skinner v. Garnet. J)0 Fed. 735.
216 RIGHTS AND PRIVILEGES UNDER
town may abate a public nuisance; but the power is almost
universally in words conferred by statute. A town may
abate a public nuisance pursuant to an order of its coun-
cil, without recourse to any judicial proceeding for the
purpose, and this is due process of law warranted through
centuries by the police power, and therefore no violation
of the Fourteenth Amendment. And, if necessary for
the abatement or removal of the nuisance, the town may
destroy the thing which creates such nuisance, and it is
not a taking of property without due process of law.^ 16
The property constituting the nuisance must not be de-
stroyed further than necessary. The summary proceed-
ing here spoken of is warranted by law, and the party
is not entitled to a jury in it. 117 Whilst this power of
summary abatement without judge or jury exists in a
municipal corporation, for prudential reasons the city
or town may prefer to appeal to a court of justice for
the abatement of a public nuisance, and it is often the
better course. If the nuisance is not a plain nuisance per
se, or if there be reasonable question whether it is an abat-
able nuisance, or where no circumstances of emergency
call for hasty action; in such cases, it is the judicious
course, and, as elsewhere stated (p. 147), a court of equity
neMugler v. Kansas, 123 U. S. 623; Lawton v. Steele, 152 U. S.
133; Bank v. Sarlis, 28 Am. St. R. 185; Cheek v. City, 4 Am.
& Eng. Corp. Gas. 512; City of Cleveland v. C. C. & St. L. Co.
93 Fed. 119; Easton R. R. Co. v. Easton, 133 Pa. 505; Cook v.
Harris, 61 N. Y. 448; Baumgartner v. Hasty, 8 Am. & Eng. Corp.
Cas. 353.
117 Hart v. Mayor, 9 Wend. 571, 24 Am. D. 165; Ex parte Keeler,
55 Am. St. R. 785.
TUB FOURTEENTH AMENDMENT. 217
is open for relief. 118 If a dwelling, it must do so. 119
The city or town may cause an indictment to be found,
and upon it judgment of abatement may be rendered. 120
But it must be remembered, as elsewhere stated (p. 173),
that a city or town council can not, by its mere declaration
that a thing is a public nuisance, make a nuisance of
that which is not essentially such. 121 The question of
nuisance or no nuisance is one for judicial review.
Fencing Railroads. Acts requiring this are valid acts
of police, not depriving the companies of the equal pro-
tection of the law secured by the Fourteenth Amendment.
They are intended not only to save stock from being de-
stroyed, but also to save passengers from accident. 122
This case holds valid an act giving land-owner pay for
watching stock to keep it off the track.
An act making railroad companies liable for double
the value of stock killed at a point where the company
ought to fence the track, but does not, was held not re-
pugnant to the Fourteenth Amendment. 123
Slaughter-Houses. As elsewhere stated (p. 82), the
police power of a state is so great that an act of the leg-
islature of Louisiana creating a corporation and giving
nsWeston v. Ralston, 47 W. Va. 36 S. E. 446; Cheek v. City
of Aurora, 4 Am. & Eng. Corp. Gas. 652; Ralston v. Weston, 46
W. Va. 544, 33 S. E. 331 ; Woodward v. Seely, 50 Am. D. 453, cit-
ing 1 Pom. Eq. Sec. 248 note, 2 Story Eq. Sec. 859.
iiTeass v. St. Albans, 38 W. Va. 1.
120 Denver v. Mullen, 4 Am. & Eng. Corp. Cas. 304; City of
Cleveland v. R. R. Co. 93 Fed. 119.
121 North Chicago Co. v. Lake View, 2 Am. & Eng. Corp. Cas. 6 ;
Town v. Davis, 40 W. Va. 464; Arkadelphia v. Clark, 27 Am. &
Eng. Corp. Cas. 586; Teass v. St. Albans, 38 W. Va. 1.
122 Minneapolis Co. v. Emmons, 149 U. S. 364.
123 Minneapolis v. Beckwith, 129 U. S. 26.
218 RIGHTS AND PRIVILEGES UNDER
it a monopoly for twenty-five years to maintain slaughter-
houses, stockyards and landings for cattle, in three par-
ishes, covering the city of Xew Orleans, and prohibiting
all others from doing so within that district, and re-
quiring all cattle intended for sale to be brought there,
was held not contrary to the Fourteenth Amendment. 12
Stopping Railroad Trains. An act requiring railroad
trains to stop at county seats long enough to take up and
discharge passengers was held valid, though the railroad
was engaged in interstate commerce. 125
Dogs. A statute enacting that dogs not on the assess-
ment roll are not entitled to protection, and that for kill-
ing them the owner can not recover beyond their value
specified in the last assessment of them, and that for kill-
ing unruly dogs, and those with no collar on, and those
not assessed, was held not to violate the Fourteenth
Amendment as destroying property without due pro-
cess. 126 The opinion contains a fine discussion of the
right of property in dogs, and the extent of police power
over them.
Oleomargarine. This much-abused article of food is
much better than it has been represented to be. It is set-
tled beyond question that it is a legitimate, merchant-
able article of commerce, and that a state can not inter-
dict its transportation into it from points outside of it,
and the sale of the article in original packages. 127
124 Slaughter House Cases, 16 Wall. 36.
i25Gladson v. Minnesota, 166 U. S. 427; Lake Shore v. Ohio,
173 U. S. 285; Wisconsin, etc., Co. v. Jacobson, 179 U. S. 287.
126 SenteU v. N. Orleans, 166 U. S. 698.
127 Schollenberger v. Pennsylvania, 171 U. S. 1; Fox v. State,
89 Md. 381.
THE FOURTEENTH AMENDMENT. 219
This is because of the commerce clause, not the Four-
teenth Amendment.* But in Powell v. Pennsylvania 128
it was held that the Fourteenth Amendment was not "de-
signed to interfere with the exercise of the police power
by the state for the protection of health, the prevention
of fraud, and the preservation of public morals," and that
an act prohibiting the manufacture out of oleaginous
substances other than unadulterated cream or milk, of
any article designed to take the place of butter, or any
imitation or adulterated butter or cheese, or selling it, or
offering it for sale, was a lawful police act to protect pub-
lic health, neither denying equal protection of law, nor
depriving of property without due process of law con-
trary to the Fourteenth Amendment. In Plumley v. Mas-
sachusetts 129 was involved an act to "prevent deception
and fraud in the manufacture and sale of imitation but-
ter," in its application to the sale of oleomargarine colored
so as to cause it to look like yellow cream butter, and
the act was held to be a valid exercise of police power on
the theory that it was to prevent fraud in the sale of a
false article. The case was based on the prevention of
deception in selling an adulterated article, and it con-
tains an able discussion of the police power. On this
theory goes the cases of State v. Myers, and Wright v.
State. 130 But I do not understand that legislation to pre-
vent the sale of oleomargarine in its true state and ap-
pearance, without anything connected with it to deceive
as to its true character, would be constitutional.
i2s 127 U. S. 678, 23 Am. & Eng. Corp. Cas. 18.
i2155 U. S. 461.
13042 W. Va. 822, 35 L. R. A. 844; 88 Md. 436. See State v.
Sherwood, 83 N. W. 527 ; Cook v. State, 110 Ala. 40.
220 RIGHTS AND PRIVILEGES U\D1JJI
The definition of oleomargarine as a legitimate article
of interstate commerce, as given in the Act of Congress,
August 2, 1886, is an article "made in imitation and sem-
blance of butter." As such it is a lawful article of com-
merce, and no state can prohibit its introduction or sale,
as held in Schollenberger v. Pennsylvania, 171 U. S. 1.
But the state may prohibit the manufacture of it with-
in the state or prohibit the sale within it of such oleo-
margarine as is manufactured within the state. Fox v.
State, 89 Md., 381, 73 Am. St. 194. Still, the state may
adopt police regulations to prevent the fraudulent sale
of oleomargarine as genuine butter.
Protection of Servants. The State of Arkansas passed
an act providing that if a corporation or person operating
a railroad or bridge, or constructing works, discharged,
with or without cause, or refused to further employ an
employee, his unpaid wages should be due at discharge
or refusal to employ, and that if such wages should not
be paid, imposing as a penalty that the wages should con-
tinue for sixty days at the same rate, and giving action
for discharge without cause. The act was held to be con-
sistent with the United States Constitution, and that it
did not deny the operator of the railroad the equal pro-
tection of the law. 131
Protection of Fish. A state may preserve fish in its
streams from extinction by prohibiting exhausting meth-
ods of fishing, and may authorize the destruction by any-
one of nets set in violation of law, and such legislation
does not deprive one of property without clue process of
131 St. Louis Co. v. Hall, 173 U. S. 404.
THE FOURTEENTH AMENDMENT. 221
law. 132 The legislature may limit the season for catch-
ing fish, and the manner of catching them, and may make
it an offense to have certain nets in possession. 133
Water-Rent Lien. An act making water rent of a city
a lien on land prior to all incumbrances, like taxes, does
not violate the Fourteenth Amendment in giving a lien
prior to mortgages in existence before the furnishing of
the water, as the law prior to the mortgage so provided,
ami the mortagee took his rights with an eye to that law,
in legal contemplation. 134
Pollution of Streams. Acts to prevent the pollution of
streams by the deposit of sawdust or other vitiating arti-
cle therein, spoiling the water for domestic and other
uses necessary to society, do not violate the Fourteenth
Amendment. 135
Removal of Railroad Grade Crossings. Crossings of pub-
lic highways over railroads on a level grade with the
railroad are exceedingly dangerous to the lives and limbs
of those traveling the common highway, as well as to the
employees, passengers and property on the trains upon
the railroad, and legislation calculated to save life at
such crossings, reasonably calculated for such purposes,
is beneficial to both interests, and is valid under the po-
lice power. Even an act requiring the removal of such
grade crossings by a railroad company at its expense has
!>< MI held consistent with the Fourteenth Amendment.
Condemnation of property for the purpose, is not taking
132 Lawton v. Steele, 152 U. S. 133.
iss state v. Lewis (Ind.), 20 L. R. A. 52.
is* Provident v. Mayor, 113 U. S. 506.
' "- State v. Griffin, 41 L. R. A. 177. See State v. Wheeler, 44 N. J.
L. 88.
222 RIGHTS AND PRIVILEGES UNDER
of property without due process, though, tracks be in-
creased at expense of city. 136
Eight-Hour Labor Law. A statute fixing a day's labor
in underground mines or workings at eight hours, except
in emergency, where life or property is in imminent dan-
ger, and imposing a penalty for violation of the law, was
held a valid exercise of the police power not violative
of the Fourteenth Amendment by denying equal protec-
tion of the law, or depriving of property without due pro-
cess of law. 137 Cases holding contra. 138
Waste of Natural Gas. Natural gas is a gift of nature
for the comfort, convenience and welfare of man. It be-
hooves all to preserve it from waste, as it is believed to
be, or perhaps known to be, stored in limited quantities
within the earth, and therefore exhaustible. The power
of the legislature to prevent its waste would seem, there-
fore, to be clear, and it has accordingly been held that
an act prohibiting its use for illumination in flambeau-
lights is no violation of the Fourteenth Amendment in
depriving of liberty, property or equality before the
law. 139
Food Adulteration, Bad Milk, etc. Under the police
power of the state, as elsewhere in this work defined, it
is very plain that the state may protect the public health,
comfort and safety by prohibiting the adulteration of arti-
ise New York, etc., Co. v. Bristol, 151 U. S. 556; Wheeler v. R. R.
178 U. S. 321.
isiHolden v. Hardy, 169 U. S. 366; Short v. Bullion (Utah),
45 L. R. A. 603.
138 City v. Smyth, 60 Pac. 1120; Re Morgan, 58 Pac. 1071 (full) ;
Low v. Rees Printing Co. 41 Neb. 127.
isTownsend v. State, 147 Ind. 624, 62 Am. St. R. 477.
TEE FOURTEENTH AMENDMENT.
cles of food, or the furnishing of inferior and deleterious
articles hurtful to health and destructive of life, and may,
for the prevention of imposition and fraud, regulate the
sale of such articles. The Fourteenth Amendment in
no wise prevents such salutary legislation, and the legis-
lation may cover a very wide scope. Of the necessity of
legislation upon this matter the legislature is almost the
sole judge, with the proviso that its action is subject to
judicial review. 140 As an instance of the exercise of this
police power, an act requiring milkmen to register their
stock with the sanitary board of a city, and prohibiting
the sale of milk from unsanitary places, was held to be
consistent with the Fourteenth Amendment. 141 So an act
prohibiting anyone from having in his possession adul-
terated milk with intent to sell it, was held to be consti-
tutional in State v. Smith. 142
Adulterated articles of food may be destroyed by a pub-
lic inspector acting under authority of state legisla-
tion. 143
It will not do to say that such legislation as this, though
sometimes severe, can be held to be unconstitutional, as
being destructive of liberty, property or equality before
the law, because ancient common law fully authorized
indictment for such adulteration, made the thing unlaw-
ful; and statutes as far back as 51 Henry III, pro-
hibited the sale of corrupted wine or unwholesome
flesh. 144 Thus, long before the advent of the Fourteenth
1*0 State v. Campbell, 64 N. H. 402, 23 Am. & Eng. Corp. Cas. 12.
1*1 State v. Broadbelt (Md.), 45 L. R. A. 433; 89 Md. , 73 Am.
St. R. 201.
1*2 14 R. I. 100, 51 Am. R. 344; State v. Schlenker, 84 N. W. 698.
1*3 Deems v. Baltimore, 80 Md. 164, 26 L. R. A. 541.
i**4 Bl. Com. 162.
224 RIGHTS AND PRIVILEGES UNDER
Amendment this adulteration of food was condemned
by law as an evil, and legislation in England and Amer-
ica was widespread for its prevention; and, as frequently
stated in this work, what was due process of law when
this amendment came continues such under it. Accus-
tomed, ordinary legislation and process for remedy of
acknowledged evils are not prohibited by it.
Ardent Spirits. The state or its subordinate agencies
may grant or refuse license to sell ardent spirits, as it
chooses. Municipal corporations may grant or refuse just
as enabling statutes authorize. 145 The license may be
taxed as the state or municipality chooses for their sev-
eral purposes. 146 A city or town may limit the number
of saloons in it. 147
Diseased Fruit Trees may be destroyed under authority
of a statute, without judicial inquiry and compensation,
if they have disease, such as "yellows" in peach trees,
spreading such disease. 148
Poisons. Statutes forbidding anyone other than phy-
sicians and pharmacists from having opium or other poi-
sons in possession are constitutional. 149 The basis of
this legislation is the danger to the public. The health
of the public is the supreme law. To it individual right
must often yield. There is no state that has not legisla-
tion to regulate and restrict the keeping and sale of poi-
v. Christensen, 137 U. S. 86, 34 Am. & Eng. Corp.
Gas. 160; Mugler v. Kansas, 123 U. S. 623, 18 Am. & Eng. Corp.
Cas. 614.
i46Giozza v. Tiernan, 148 U. S. 657.
nTDecie v. Brown, 167 Mass. 290.
"8 state v. Main, 69 Conn. 123, 36 L. R. A. 623.
i* Ex parte Mon Luck, 29 Ore. 421, 44 Pac. 693, 32 L. R. A. 738.
TUB FOURTEENTH AMENDMENT. 225
son. The police power plainly covers it, and did so long
before the date of the Fourteenth Amendment. When
that amendment came.it found this particular power in
full life. 150
Compulsory Vaccination. Legislation or ordinance re-
quiring it as a prerequisite to attend the public schools,
in the absence of the prevalence of smallpox or imminent
danger of it, has been held not a valid exercise of the
police power. 151 But the presence of danger of the dis-
ease has been held in another case not necessary to au-
thorize a school board to require vaccination. Its order
to that effect was held not contrary to the Fourteenth
Amendment. 152
Beating Drums on the Street. A town ordinance against
this as a public nuisance was held valid. 153
Municipal Liability for Mobs. A municipal corporation
is not liable, by common law, for damage to persons and
property done by a mob; but in some states legislation
makes them so liable. Such legislation is justified by
that large power which the state legislature may exer-
cise to control, regulate and govern cities and towns,
and it has been held valid. 154 If the right to lay enough
taxes to pay the judgment is denied by the legislation,
the case secondly cited shows that the owner of the judg-
ment is not deprived of his property contrary to the
iso gee note as to keeping dangerous property, 20 L. R. A. 52 ;
State v. Hay, 35 S. E. 459 ; Morris v. City, 30 S. E. 850, 42 L. R. A.
175.
isi Potts v. Brown, 107 111. 67.
"zBissell v. Davisson (Conn.), 29 L. R. A. 251.
iss Re Flaherty (jComi.), 27 L. R. A. 529.
1*4 City v. Manhattan, 178 111. 372; State v. Mayor, 109 U. S.
285: Board v. Caldwell (Ohio, 1900) : Champaign Co. v. Church, 62
Ohio St. 318.
226 R1GHT8 AND PRIVILEGES UNDER
Fourteenth Amendment. There need be no jury to fix
mere amount of damages, as held in last-cited case, if
the main fact is found by jury.
Cemetery Lots and Disinterments. Owners of lots in
cemeteries hold the lots subject to the police power of
the state, and interment may be forbidden therein, and
bodies already therein interred may be removed by au-
thority of the legislature, 155 It seems that municipal
corporations have the like power without enabling
act. 156
City Ordinance against Drumming for patronage for
hotels, boarding and bath-houses, physicians, quacks and
venders of nostrums, held void as to competent physicians,
and as to hotels, boarding and bath-houses, they being law-
ful business. 157
Estrays. A statute authorizing the impounding of es-
trays is a long-used common law proceeding, and statutes
authorizing and regulating it are sustained by the police
power, and do not violate the Constitution. Municipal
corporations may make regulations as to what animals
may run at large in the streets, and for impounding those
running at large in violation of such regulations or ordi-
nance, without notice to the owner, without its being con-
trary to the requirement of due process of law. The sub-
ject is well discussed by Judge English in the West Vir-
ginia case of Burdett v. Allen. 158
IBS Humphreys v. Church, 109 N. C. 132, 13 S. E. 793, 37 Am. &
Eng. Corp. Cas. 489.
ise People v. Pratt (N. Y.), 38 Am. & Eng. Corp. Cas. 201.
is? Thomas v. Hot Springs, 34 Ark. 553; 36 Am. R. 24.
iss Burdett v. Allen, 35 W. Va. 347, 13 S. E. 1012, 37 Am. & Eng.
Corp. Cas. 468; Welch v. Bowen, 11 Am. & Eng. Corp. Cas. 334;
Folmar v. Curtis (Ala.), 27 Am. & Eng. Corp. Cas. 578.
THE FOURTEENTH AMENDMENT. 227
Opium Smoking. A strong and signal instance of the
extent of the police power is the sustaining of the statute
of Washington making the act a penal offense. 159 The
decision seems to me to be questionable.
Laundries. The carrying on of laundries is a lawful,
reputable and necessary business, not at all hurtful to,
but highly beneficial to, the public, and of great public
benefit. In some cases or instances they have been brand-
ed absolutely to be nuisances, perhaps owing to some lo-
cal prejudice against the Chinese, who are largely engaged
in this business. Every person within the jurisdiction of
the United States has liberty to make a living in a law-
ful business. He has a right to apply his labor and prop-
erty to it. This is the clearest right, protected by the
Fourteenth Amendment. Laundering is a lawful busi-
ness, and an ordinance prohibiting it in certain locali-
ties simply because it was deemed a nuisance per se was
held invalid, because repugnant to the Fourteenth Amend-
ment. 160 This holding does not antagonize the decisions
already adverted to (p. 215), holding valid statutes or
municipal ordinances reasonably regulating the business
of laundering. I refer here to ordinances absolutely de-
claring the business a nuisance.
Removal of Diseased Persons. A statute or city ordi-
nance authorizing persons affected with smallpox or other
contagious or infectious disease to be removed to a sepa-
rate house apart from the community, called a "pest-
house," or "lazaretto," does not violate the Fourteenth
Amendment in depriving of liberty. Nor does the quar-
159 Territory v. Ah Lira, 9 L. R. A. 395.
io i n re Hong Wah, 82 Fed. 623.
228 RIGHTS AND PRIVILEGES UNDER
antiniug of such persons within their own homes, though
this prevents the exercise of the right of locomotion.
Neither does a quarantine against the entrance into a city
or town of any person, diseased or not, coming from a
place infected with smallpox or dangerous contagious dis-
ease. Seemingly this is a great invasion of natural, per-
sonal right; but it springs from the maxim, Solus populi
suprema lex est. Necessity, the demand of self -preser-
vation, justify the exercise of this power. It is based
on the police power, which, as held in Barbier v. Con-
nolly, 161 is not impaired by the amendment, because it
rests on that maxim above quoted, which is of the high-
est import and unquestioned authority. But this doc-
trine applies only to persons having contagious disease, or
infectious disease. If this is not the case, no one, though
diseased otherwise, can be sent to a hospital, though for
medical aid and humanity, unless he consents. 162
Act Requiring Locomotive Engineers to be examined as
to capacity to distinguish between color signals, and es-
tablishing a board therefor, and requiring the railroad
company to pay the examination fees, was held not to de-
ny equal protection of the law, or to take property without
due process of law. 163
Removal of Dead Animals. An ordinance of a city giv-
ing one person exclusive right to remove dead animals
from a city, not removed by their owner in a given time.
"I 113 U. S. 27, 7 Am. & Eng. Corp. Cas. 640.
162 Tiedman, Police Power, Sec. 42 ; Harrison v. Baltimore, 1 Gill.
264; Haverty v. Bass, 66 Me. 71.
163 Nashville Co. v. Alabama, 128 U. S. 96.
THE FOURTEENTH AMENDMENT. 229
does not deprive the owner of property without due pro-
cess. 164
Railroad Speed It seems that municipal corporations,
under police power, to save life and property, may reg-
ulate the speed of railroad trains within their limits, and
such regulation has been held not obnoxious to the Four-
teenth Amendment, as impairing a vested right of the
railroad company. 165
Privies and Water-Closets. A city or town may adopt
these principles is, that every state possesses exclusive
reasonable regulations controlling them for the public
health and comfort, may compel connection with sewers,
and may prohibit privies from being located near win-
dows and doors of a dwelling, and may fill them up or
destroy them, without hearing, consistently with the Con-
stitution under the police power. 166 The last case is a val-
uable discussion of police power.
Railroads in Street. A strong instance of the force of
municipal police power is furnished by the case of Rail-
road Company v. Richmond, 167 where a city ordinance
forbade one railroad company to run cars by steam on a
part of only one street, and it was held valid, and that
it did not deprive that company of property without due
process, and that it did not deny equal protection of the
law. Though the ordinance applied to only one road and
one street, yet the court said that this street occupied by
this railroad might be very different from all others, and
ie* National Fertilizer Co. v. Lambert, 48 Fed. 458.
les Herb v. Morash (Kan.), 54 Pac. 323; Wisconsin Co. v. Jacob-
son, 179 U. S. 287.
166 Comth. v. Roberts, 155 Mass. 281 ; Harrington v. Board, 20 R.
I. 233.
16796 U. S. 521.
230 RIGHTS AND PRIVILEGES UNDER
municipal legislation might exclude that railroad from
one street, though not from all, as the public need re-
quired, of which the city war, to judge.
Changing Conditions Enlarge Police Power. It must not
be thought that this great police power is bound to rec-
ognize a condition or state of things existing to-day as
beyond change at its hands in time to come, when changed
conditions occur and public welfare demands alteration
and increased exercise of police power in restraint of
privileges once established. This increased police power,
or rather the extended exercise of the sleeping police
power, may affect, nay, may destroy, rights vested, even
contract rights, under certain circumstances. As stated
at another place (p. 170), a business once harmless and
lawful, vested even under chartered rights, which later
becomes hurtful to the public under an altered condition
of things, may be restricted in its transactions, or indeed
utterly prohibited under the action of state or municipal
legislation touching it. The case of Fertilizing Company
v Hyde Park Company 168 is a strong instance to mani-
fest this general principle of the law of police. A com-
pany was chartered by a legislative act and empowered
to make chemicals from the carcasses of dead animals
and other refuse and offal, with express right to so do at
a place which was then a swamp several miles from Chi-
cago. The company accepted this charter, spent much
money in the erection of a plant and was engaged in its
legitimate corporate business. In process of time the
town of Hyde Park grew to be an important residential
i897 U. S. (7 Otto), 659.
THE FOURTEENTH AMENDMENT. 231
place. Then this lawful business became a flagrant nui-
sance of decided type, hurtful to the public. The charter
of this town of Hyde Park gave it power, necessary to all
cities and towns, without which they could scarcely ex-
ist, to abate public nuisances. The town passed an or-
dinance that no carcasses or offal should be brought into
it on railroad cars, and that no public nuisance should
be carried on, and imposed a penalty therefor. This was
extremely detrimental to the rights and business of the
fertilizing company, which had seated itself in that place
when it was far removed from habitations, and only a
dismal swamp, and the dwellers seated themselves there
long after its establishment. We might say they sought
proximity to this nuisance by their own act. Still, the
Supreme Court held that the town ordinance was a valid
exercise of the police power, notwithstanding the charter
rights of the corporation. The court fully discusses the
police power and the municipal function to abate public
nuisance. The court said also that the fact that the cor-
poration had long exercised its right would not protect it
from the ordinance, because the business carried on was
a public nuisance. The language of the court is but thb
application of an old principle: "In such cases pre-
scription, whatever the length of time, has no application.
Every day's continuance is a new offense."
Second Sentence after Reversal. Suppose one sen-
tenced under an unconstitutional act, or an erroneous
judgment, takes an appeal and reverses the sentence ; will
it harmonize with due process of law to try him over again
and resentence him? Suppose even that he has served
a part of his sentence; can he be retried and resentenced
232 RIGHTS AND PRIVILEGES UNDER
for a full term, regardless of his former sentence and par-
tial punishment under it, if he procures its reversal ? I
can answer that he can be retried and resentenced, except
so far as some statute may relieve him. The former sen-
tence goes for naught. There is no second jeopardy, as
he procured a new trial. It is well settled that when a
party gets a new trial on his own motion, he may be
tried again. It is consistent with the demand of due pro-
cess of law. 169
Charges for Use of Public Sewers. An act authorizing
a city to fix charges for the use of its public sewers does
not deprive those using them by draining into them, of
property without due process of law, though no hearing
is given them. 170
Unlawful Gaming. Statutes everywhere, of centuries'
standing, prohibit gaining with cards and other devices,
and not only that, they allow the loser to recover back
from the winner money lost at gaming, and they often
declare contracts or promises made in consideration of
gaming to be void. Do such statutes infringe upon lib-
erty of civil right and action, and right to contract, in
violation of the liberty and property clause of the Four-
teenth Amendment? Do they infringe upon the right
of contract? They do not. It may be said that this
money won has become the property of the winner by
contract with the loser. So with the promissory note or
verbal promise. It would seem to be a restraint on lib-
169 Murphy v. Massachusetts, 177 U. S. 155; Trezza's Case, 142
U. S. 160; McElvaine v. Brush, 142 U. S. 155; State v. Crop, 44
W. Va. 315; Livingston Case, 14 Grat. 592, 606.
ITO 56 N. E. 1.
TUB FOURTEENTH AMENDMENT. 233
erty, and on the right of contract, and a taking of prop-
erty without due process of law. But under the police
power of the states, long before the amendment came, such
statutes were in vogue for the promotion of morals. The
police power vindicates this stringent legislation, and mu-
nicipal ordinances to suppress gaming. Contracts in gam-
ing are made void, and the recovery back of money lost
is a means of enforcing the law. 171
Usury . What has just been said as to gaming applies
largely here. Statutes vacating contracts tainted with
usury, and placing usury under penalty, have been in
existence for centuries, have been approved by mankind,
and are justified by the police power, and are not in vio-
lation of the Fourteenth Amendment. 172
Registry of Voter. An act requiring such registry as
a prerequisite to vote does not deprive a citizen of the
United States of his privileges contrary to the Fourteenth
Amendment. The state prescribes the qualification of
voters, and makes regulations for elections, as already
stated (p. 73). 173
Railroad Terminal Facilities. An act compelling a rail-
road company to admit another company to terminal fa-
cilities at a union station and fixing rate for privileges
was held not to deprive the former company of property
without due process of law. 174
Log-Boom Charges A statute giving a lien for inspect-
ing and scaling logs run through a chartered boom in
"I Harris v. Runnels, 12 How. 83; Gofer v. Riseling, 55 S. W.
235; Xiemeyer v. Wright, 75 Va. 239.
172 Kreibohm v. Yancey, 55 S. W. 260; Adler v. Corl, 15 Mo. 149.
173 State v. Mason, 55 S. W. 636 ; Mason v. Missouri, 179 U. S. 328.
174 State v. Jacksonville Terminal (Fla.), 27 So. R. 225.
234 RIGHTS AND PRIVILEGES UNDER
favor of the survejer general for his lawful fees and
charges, and making the lien on such logs enforcible
against them, was held not 'to deprive their owners of
property without due process of law. 175
Possession Pendente Lite of Property Sued for. Statutes
are to be found like that in the West Virginia code 176 in
actions of detinue and replevin for the recovery of spe-
cific personal property, and also in actions of unlawful
entry for the recovery of realty, providing that the claim-
ant may get from his adversary, and hold pending the
suit, possession of the property in controversy, such pos-
session to abide the result of the suit, by giving bond.
This takes from the defendant actual possession of prop-
erty prior to judicial ascertainment of the right, thus
materially detracting from the right of the other party,
and it might therefore be thought to deprive him of prop-
erty, and that without due process of law; but it has
been held not to be so. 17 -" 1
Preferred Lien for Labor. A statute giving servants
and laborers a preferred lien for compensation on the
property of their employers sold under execution for debt,
such lien not to exceed one hundred dollars for services
rendered within sixty days, has been held not to take
property without due process of law. 178
Patented Articles, Sale of. We must not think that be-
cause the United States under its patent laws has granted
a patent right upon any article, that it may be sold in the
ITS Lindsay & Phelps Co. v. Mullen, 176 U. S. 126, 20 Sup. Ct. 325.
nsCh. 102.
ITT state v. Prather, 19 Wash. 336.
ITS Gleason v. Tacoma, 16 Wash. 412.
THE FOURTEENTH AMENDMENT. 235
states regardless of its character as calculated to injure
the public as to health, morals or otherwise. The patent
is granted only in the interest of the patentee, to give
him a reward for his invention by way of a monopoly
against competition for a number of years, and was never
designed to adjust any rights between the patentee and the
public interests under the police power. Hence a state
may, by an act of police, that is a legitimate exercise of
police power, prohibit the sale of any patented article,
if in anywise deleterious to the public. 179
Privilege Clause prohibiting states from abridging the
privileges and immunities of citizens of the United States,
like the clauses in relation to life, liberty and property
and the equal protection of the law, is subject to the
rightful police power of the state, and was not designed
to restrict that power. 180
Inspection of the Body. Can a plaintiff in a civil, per-
sonal action suing for injury to his person be required,
against his will, on motion of defendant, for purposes of
evidence on the trial, to submit to a surgical or other
examination of his body ? In Union Pacific Railway
Company v. Botsford 1S1 this power is denied in the hold-
ing that "A court of the United States can not order a
plaintiff in an action for injury to the person, to sub-
mit to a surgical examination in advance of the trial."
The opinion by Justice Gray enunciates the principle
that no right is more sacred or more carefully guarded
ITS Patterson v. Kentucky, 97 U. S. 501.
iso U. S. v. Cruikshank, 92 U. S. 542; In re Kemmler, 136 U. S.
436.
isi 141 U. S. 250.
236 RIGHTS AND PRIVILEGES UNDER
by the common law than the right of every individual to
the possession and control of his own person, free from
all interference by others, quoting Cooley on Torts, 29,
"The right of one's person may be said to be a right of
complete immunity ; to be let alone." Not only wearing ap-
parel, but a watch or jewel, worn on the person, is for the
time being privileged from being taken under distress
for rent or attachment or execution. 182 The court said
that inviolability of person is as much invaded by com-
pulsory stripping and exposure as by a blow ; that to com-
pel any one, especially a woman, to lay bare the body, or
submit it to the touch of a stranger, without lawful
authority, is an indignity, an assault and trespass, and no
order or process commanding such exposure was ever
known to the common law in the administration of justice
between individuals, except in a very small number of
cases based upon special reasons, and upon ancient prac-
tice, coming down from ruder ages, now mostly obsolete
in England, and never, "so far as we are aware," intro-
duced into this country. Justice Gray then refers to the
old practice of inspection of the body without jury to
test infancy or identity of person; or, to test maihem or
no maihem in an action of trespass for maihem or atro-
cious battery, on the motion of the plaintiff himself after
verdict to increase damages. He said that these inspec-
tions were not for submitting the results to a jury. He
also instanced the practice in divorce cases of inspection
to determine impotency, as resting on the public interest
in upholding or dissolving marriage, and he said this
182 3 Bl. Comm. 8.
THE FOURTEENTH AMENDMENT. 237
was civil law as administered in ecclesiastical courts, not
common law. Justice Gray also spoke of the instance
of the writ de venire inspiciendo to ascertain whether a
condemned woman was pregnant, and he stated that this
was based on the public interest that the life of an un-
born child should not be taken. These instances were
treated in the opinion as not forming the rule, as not call-
ing for the enforcement as a means of evidence in civil
cases of such inspection of the body. The opinion re-
fered to a number of state decisions holding the contrary,
and expressed strong dissent from them. The opinion said
that the state decisions in this mere matter of practice
and evidence would not control federal courts. The ma-
jority of the court condemned the rule prevalent in many
of the state courts. Justices Brewer and Brown dissented.
All conceded that if the plaintiff refused to yield to such
inspection for purposes of evidence to the jury, the fact
of refusal might be legitimately made a subject of com-
ment before the jury to the prejudice of the plaintiff's
cause. A later case in the Circuit Court of Appeals 183
follows the case just mentioned, going further in the re-
spect that it holds that such inspection will not be allowed
either before or during the trial. The contention in favor
of this right of inspection is quite plausible. It is based
on the theory that when a man comes into a court of jus-
tice asking at the hands of the law reparation for an in-
jury done him by his fellow-man, justice demands that he
make a full breast of his case, suppressing nothing, ex-
posing all for the attainment of truth and justice. The
iss Illinois Central v. Griffin, 80 Fed. 278.
238 RIGHTS AND PRIVILEGES UNDER
state cases are conflicting. Jones on Evidence 184 asserts
the true rule to be contrary to the decision of the Supreme
Court and Circuit Court of Appeals above stated, citing
the cases. 185 I observe that the late case of Wanek v.
City of Winona 180 takes the power to allow such inspec-
tion as well settled, but does not discuss the subject or
cite authorities.
This subject is one of importance. My own view
would be that the subject is one concerning "liberty" as
used in the federal and state constitutions, and immunity
from such corporeal inspection is what Blackstone would
call "liberty of person/ 7 a great immunity inseparably
annexed to the personality of a human being, sacred un-
to him, which no call of even justice can invade under the
Constitution, and I would think that the principles stated
by the Supreme Court of the United States are sound as
an original question. If Justice Gray is right in stat-
ing that the common law did not accord this right of in-
spection, as I think he is, then we can not say that common
law practice precedent to the adoption of the American
constitutions or the Fourteenth Amendment gave this
right of inspection, and as this right of exemption from it
is one of liberty, it would be protected by the Fourteenth
Amendment, as well as by the state constitutions, and the
enforced inspection would take away liberty without due
process of law. But we must be careful here. We must
remember the Supreme Court was only laying down a
"4 Vol. 2, Sec. 398.
iss Graves v. Battle Creek, 95 Mich. 266, 19 L. R. A. 641 ; White
v. Milwaukee, 61 Wis. 536, 50 Am. R. 154, note 14 L. R. A.; Side-
kum v. St. L. Co. 93 Mo. 400, 3 Am. St. R. 549 and note.
18680 N. W. R. 851.
THE FOURTEENTH AMENDMENT. 239
rule of practice and evidence for national courts, though,
as I read the opinion, it stated general, fundamental prin-
ciples of constitutional law. In those states where the rule
of evidence established before the amendment came, al-
lowed such inspection, I suppose such rule would not be
interfered with by the amendment ; but in states where it
was not established as legitimate procedure, I would doubt
the power to enforce such corporeal inspection, though
the matter be one pertaining to mere evidence and pro-
cedure.
After writing the foregoing matter upon the subject, I
find the case of Camden Co. v. Stetson, 1 holding that if
there is a state statute allowing such inspection, a federal
court in that state will enforce inspection of the body.
The case seems to recognize the validity of the statute
impliedly, but does not discuss the constitutional question.
Kailroad Co. v. Childers 2 holds such a statute valid. But
such inspection can only be granted where the person to
be inspected is the plaintiff, and only by dismissal of the
case. 3
Osteopathy. This new word is composed of two Greek
words, literally meaning the restoration of bone. It is
practiced by some for the cure of ailment by a process
which rejects the use of drugs or medicine, and substitutes
a system of rubbing and kneading of the body. Does
this practice fall under those statutes like that involved in
Dent v. West Virginia, 187 prohibiting the practice of med-
1 177 U. S. 173.
282 Ga. 719.
s Bagwell v. Atlanta, 109 Ga. 611, 34 S. W. 1018.
187 129 U. S. 114.
240 RIGHTS AND PRIVILEGES UNDER
icine and surgery without a certificate of authority from
the medical board constituted under the police power by
state statute for the regulation of such practice for the
public welfare? Both are for the cure or treatment of
human ailment. Incoinpetency in the one is as deadly as
in the other. Do those who follow the practice of faith
cure or Christian science or spiritual healing fall under
these laws? There has been great controversy in the
various states upon these matters. Those who practice
such healing claim that the right is of the highest import,
one of liberty, the right to make a living, the right to con-
tract, the right to pursue a calling and secure happiness.
It is very clear that under the high behests of public
health and safety of life the state may, under its police
power, regulate such practices, or, under proper circum-
stances, prohibit them. Whether osteopathy and other
practices mentioned fall under such statutes is dependent
upon the phraseology of the statute. In Ohio is a statute
providing that one practicing medicine or surgery must
have a certificate of authorization from a state board, and
that anyone should be, under the statute, deemed to prac-
tice medicine or surgery who signed himself M. D., or
prescribed or recommended "any drug or medicine or other
agency for treatment." It was held in State v. Lef-
f ring 1 ss j. na {. osteopathy was not "an agency" under the
statute, and that an osteopath was not amenable to the
statute. On the other hand, it was held that to treat
or operate upon a person for physical ailment by rubbing
the affected part is a treatment or operation for physical
18855 N. E. E. 168.
THE FOURTEENTH AMENDMENT. 241
ailment, and is practicing medicine within the meaning
of the act to regulate the practice of medicine, which
provided that anybody shall be regarded as practicing
medicine who shall treat, operate on or prescribe for any
physical ailment. 189
Free Passage on Railroads. An act requiring it of rail-
roads for shippers of stock was held contrary to the Four-
teenth Amendment as depriving the railroad company
of property without due process of law and as denying
equal protection of the law, in Atchison, Topeka & Santa
Fe v. Campbell, 190
Penalty on Injunctions. An act imposing a penalty of
fifty percent interest for an injunction against taxes not
sustained was held not contrary to the constitution as
depriving the party of property without due process. 191
Taking Water Without Pay. A municipal corporation
taking the water from another's land without compensa-
tion takes property without due process of law, con-
trary to the constitution. 192
City Assessment. A statute providing that it should be
a first lien on property, and that bonds issued therefor
should be conclusive evidence of the validity of the lien,
deprives the owner of property without due process of
law. As stated elsewhere (p. 194)-, it was that feature
of the statute which made the assessment conclusive evi-
dence of the lien, and thus foreclosed inquiry upon the
189 Jones v. People, 84 111. App. 453 ; Little v. State, 84 N. W. 248.
So is Christian Science, State v. Buswell, 40 Neb. 158.
19059 Pac. 1051 (Kan.).
191 Missouri, K. & T. R. Co. v. Board, 59 Pac. 383, 9 Kans. App.
545.
192 Fisher v. City (Utah), 59 Pac. 520.
242 RIGHTS AND PRIVILEGES UNDER
question, which put the brand of unconstitutionally upon
the statute. 193
Curative Act for Taxes. The mode in which property
shall be appraised for taxes, by whom and when, what
certificate of their action shall be furnished by the person
or board doing it ; when the parties may be heard for cor-
rection of errors, are all matters of legislative discretion,
and it is within the power of the state legislature to cure
omission or defective performance of such of the acts re-
quired by law to be performed in the assessment as could
have been in the first place omitted from the requirement
of the statute, or might have been required to be done at
another time than that named in it, provided intervening
rights are not impaired. 194
Bank Officer Receiving Deposits, knowing of bank's in-
solvency, may be held guilty of a crime, and the act mak-
ing it crime does not violate the Fourteenth Amend-
ment. 195
Enticing Away Servants. A statute forbidding, under
civil and criminal penalty, any person from interfering
with a tenant or laborer of another during the contin-
uance of a lease or contract, was claimed to deny liberty,
the liberty to sell labor and to contract, and as class leg-
islation; but it was held not to violate the Fourteenth
Amendment. 196
This decision of the Mississippi Court might at first
be doubted; but as common law makes it actionable for
193 Ramish v. 'Hartwell, 58 Pac. 920.
is* Williams v. Supervisors, 122 U. S. 154.
195 State v. Darragh, 54 S. W. 226.
196 Hoole v. Dorroh, 75 Miss. 257.
THE FOURTEENTH AMENDMENT. 243
one man to entice away a servant of another, or to induce
the violation of a subsisting contract, the decision is cor-
rect. 197
Solitary Confinement. A law imposing solitary con-
finement until execution of death sentence violates the
Fourteenth Amendment in its requirement of due process,
because it is ex post facto as regards offenses committed
before the enactment of such law; 198 but it is due pro-
cess as to offenses committed after the act. 199
197 i Bl. Cora. 429.
198 Medley's Case, 134 U. S. 160.
i99Holden v. Minnesota, 137 U. S. 483; McElvaine v. Brush, 142
U. S. 155.
RIGHTS AND PRIVILEGES UNDER
Chapter 13.
JUDGMENT WITHOUT SEKVICE OF
PKOCESS.
I shall not discuss generally judgments and decrees
and orders of courts and their effect, because that is an
extensive field aside from the purposes of this work. I
shall speak of them only as to the question whether they
conform to the demand for due process of law contained
in the Fourteenth Amendment, and generally in the state
constitutions under some phraseology. Frequently this
is an important question. Is this judgment or decree
binding upon the person and his property, or certain of
his property? Or does it so far depart from due and
regular procedure as to be without due process of law
and void?
Upon principles of justice and authority, no judgment
or decree for money, to have the force of a personal
judgment or decree, known in law as a judgment in per-
sonam, that is, one conclusive for all purposes, as res
judicata, establishing finally between the parties and their
privies the existence, the amount and the justness of a debt
against the person, enforceable against any and all his
property liable under the law for debt, and which is a
THE FOURTEENTH AMENDMENT. 245
finality, not only in the state where the judgment is
rendered, but which shall have in other states, under
Article IV of the federal Constitution, the same full faith,
credit and effect as it has in the state where rendered
no such judgment or decree can be rendered without serv-
ice of process upon the person unless he appears in the
suit. Such a judgment would be void under the state
constitution everywhere, and would take the property of
the debtor without due process of law, contrary to the
Fourteenth Amendment of the federal Constitution. A
state can not usurp this power. 1 Justice Field in the great
case of Pennoyer v. ]N"eff, 2 which is a notable landmark
case under this head, in delivering the opinion of the court
very ably and lucidly expounded the general principles
of law upon this very grave and important subject. "The
several states of the Union are not, it is true, in every re-
spect independent, many of the rights and powers which
originally belonged to them being now vested in the gov-
ernment created by the Constitution. But, except as re-
strained by that instrument, they possess the authority
of independent states, and the principles of public law to
which we have referred are applicable to them. One of
jurisdiction and sovereignty over persons and property
within its territory. As a consequence, every state has
the power to determine for itself the civil status and ca-
pacities of its inhabitants; to prescribe the subjects up-
on which they may contract; the forms and solemnities
with which their contracts shall be executed; the rights
and obligations arising from them, and the mode in which
1 Fowler v. Lewis, 36 W. Va. 112.
2 95 U. S. 714.
246 RIGHT 8 AND PRIVILEGES UNDER
their validity shall be determined and their obligation
enforced; and also to regulate the manner and conditions
upon which property situated within such territory, per-
sonal and real, may be acquired, enjoyed and transferred.
The other principle of public law follows from the one
mentioned ; that is, that no state can exercise direct juris-
diction and authority over persons and property without
its territory. Story, Confl. L. Ch. 2; Wheat. Internal.
Law, pt. 2, c. 2. The several states are of equal dignity
and authority, and the independence of one implies the
exclusion of powers from all others. And so it is laid
down by jurists as an elementary principle that the laws
of one state have no operation outside of its territory ex-
cept so far as is allowed by comity, and that no tribunal
established by it can extend its process beyond that ter-
ritory so as to subject either persons or property to its
decision. 'Any exertion of authority of this sort beyond
this limit/ says Story, 'is a mere nullity and incapable
of binding such persons or property in any other tribu-
nal'. But as contracts made in one state may be enforce-
able only in another state, and property may be held by
non-residents, the exercise of jurisdiction, which every
state is admitted to possess over persons and property with-
in its own. territory, will often affect persons and property
without it. To any influence exerted in this way by a
state affecting persons resident or property situated else-
where, no objection can be justly taken ; whilst any direct
exertion of authority upon them, in an attempt to give
extra-territorial operation to its laws, or to enforce any
extra-territorial jurisdiction by its tribunals, would be
deemed an encroachment upon the independence of the
TED FOURTEENTH AMENDMENT. 247
state in which the persons are domiciled or the property
is situated, and may be resisted as usurpation. Thus, the
state, through its tribunals, may compel persons domiciled
within its limits to execute, in pursuance of their contracts
respecting property elsewhere situated, instruments in
such form and with such solemnities as to transfer the
title, so far as such formalities can be complied with;
and the exercise of this jurisdiction in no manner inter-
feres with the supreme control over the property by the
state within which it is situated. Penn v. Lord Balti-
more, 1 Yes. 444; Massie v. Watts, 6 Cranch 148; Wat-
kins v. Holman, 16 Pet. 25; Corbett v. ISTutt, 10 Wall.
4G4. So the state, through its tribunals, may subject
property situated within its limits owned by non-residents
to the payment of the demands of its own citizens (and
others) against them ; and the exercise of this jurisdiction
in no respect infringes upon the sovereignty of the state
where the owners are domiciled. Every state owes pro-
tection to its own citizens, and when non-residents deal
with them, it is a legitimate and just exercise of authority
to hold and appropriate any property owned by such non-
residents to satisfy the claims of its citizens. It is in
virtue of the state's jurisdiction over the property of the
non-resident situated within its limits that its tribunals
can inquire into that non-resident's obligations to its own
citizens, and the inquiry can then be carried only to the
extent necessary to control the disposition of the property.
If the non-resident have no property in the state, there is
nothing upon which the tribunals can adjudicate. . . .
If without personal service judgments in personam ob-
tained ex parte against non-resident and absent parties,
248 RIGHTS AND PRIVILEGES UNDER
upon mere publication of process, which, in a great ma-
jority of cases, would never be seen by the parties, could
be upheld and enforced, they would be the constant in-
struments of fraud and oppression. Judgments for all
sorts of claims upon contracts and for torts, real or pre-
tended, would be thus obtained, under w r hich property
would be seized, when evidence of the transaction upon
which they were founded, if they had any existence, had
perished. Substituted service by publication, or in any
other authorized form, may be sufficient to inform parties
of the object of proceedings taken where property is once
brought under the control of the court by seizure or some
equivalent act. The law assumes that property is always
in possession of its owner, in person or by agent, and
proceeds upon the theory that its seizure will inform him,
not only that it is taken into the custody of the court, but
that he must look to any proceeding authorized by law up-
on such seizure for its condemnation and sale. Such serv-
ice may also be sufficient in case where the object of the
action is to reach and dispose of property in the state, or
some interest therein, by enforcing a contract or lien re-
specting the same, or to partition it among different own-
ers, or, when the public is a party, to condemn and appro-
priate it to a public purpose. In other words, such serv-
ice may answer in all actions which are substantially
proceedings in rem. But where the entire object of the
action is to determine the personal rights and obligations
of the defendant, that is, where the suit is merely in per-
sonam, constructive service in this form upon a non-
resident is ineffectual for any purpose. Process from
tribunals of one state can not run into another and sum-
THU FOURTEENTH AMENDMENT. 249
mon persons there domiciled to leave its territory and re-
spond to proceedings against them. Publication of pro-
cess, or notice within the state where the tribunal sits,
can not create any greater obligation upon the non-resident
to appear. Process sent to him out of the state, and pro-
cess published within it, are equally unavailing in pro-
ceedings to establish his personal liability. . . . Since
the adoption of the Fourteenth Amendment to the fed-
eral Constitution the validity of such judgments may be
directly questioned, and their enforcement in the state
(of rendition) resisted, on the ground that proceedings
in a court of justice to determine the personal rights and
obligations of parties over whom that court has no juris-
diction do not constitute due process of law. Whatever
the difficulty of giving those terms a definition which
will embrace every permissible exertion of power affect-
ing private rights, and exclude such as are forbidden,
there can be no doubt of their meaning when applied to
judicial proceedings. They then mean a course of legal
proceedings according to those rules and principles which
have been established in our system of jurisprudence for
the protection and enforcement of private right. To give
such proceedings any validity, there must be a tribunal
competent by its constitution that is, by the law of its
creation to pass upon the subject-matter of the suit ; and
if that involves merely a determination of the personal lia-
bility of the defendant, he must be brought within its
jurisdiction by service of process within the state or his
voluntary appearance."
"A court of chancery acting in personam may well
decree the conveyance of land in any other state, and may
250 RIGHTS AND PRIVILEGES UNDER
enforce the decree by process against the defendant. But
neither the decree itself, nor any conveyance under it,
except by the person in whom the title is vested, can oper-
ate beyond the jurisdiction of the court." 3
Under these principles the case of Pennoyer v. Neff 4
held a personal judgment on mere publication void, so
as not to warrant an execution to sell property under it;
and that a sale under it conferred no title ; and that prop-
erty must be attached, as against a non-resident, at the
commencement of the suit in order to confer jurisdiction.
Likewise a later case. 5
Cross-action and Set-off. In Massachusetts is a statute
providing that if a non-resident sues there, a cross-action
may be brought against him by service of its process on
the attorney in his action, if the cross-action is for such
a demand as may be set off. Held not against the due
process clause of the Fourteenth Amendment. 6 In states
where statutes allow sets-off in the same action this must
be so ; but is it so in a separate action ? Even in such
states can there be personal judgments for surplus against
the non-resident ? It is not supposed that Dewey v. City 7
contradicts this. In that case a state act assessing on lot
owners in a city costs of local improvements and mak-
ing the owner personally liable was involved. In a suit
to sell the lot for such costs the non-resident owner ap-
peared to ask relief against the assessment, and it was re-
sWatkins v. Holman, 16 Pet. 25; Dickinson v. Hoomes, 8 Grat.
410; Wilson v. Braden, 47 W. Va., 36 S. E.
*95 U. S. 714.
B Overby v. Gordon, 177 U. S. 221.
Aldrich v. Blatchford, 56 N. E. 700.
7 173 U. S. 193, 19 Sup. Ct. 379.
THE FOURTEENTH AMENDMENT. 251
fused and personal judgment was given against him. It
was held that the act, while good to charge the lot, was not
due process to fix personal liability, and that by appear-
ance for relief the non-resident did not submit himself
to jurisdiction for purposes of personal judgment. But
that was not a set-off; not the case where the non-resi-
dent comes into the court of a state, thus availing him-
self of its process to get judgment against his debtor, who,
in his turn, has a lawful set-off cognizable in that action
under state law.
Refusal of Defense. Though there be service of pro-
cess, yet if the defendant is not allowed to make his de-
fense, it is a withdrawal of the summons, "a denial of
the benefit of a notice, and would in effect be to deny that
he was entitled to notice at all, and the sham and decep-
tive proceeding had better be omitted altogether," because
judgment without hearing is void. 8 A court can not
strike out an answer and then decree on the merits of the
case against the defendant, without such answer, merely
because he was held to be in contempt in failing to pay
into court the money in controversy.*
Judgments In Rem. But while to warrant judgments
in personam there must be service of process in the
state or voluntary appearance, yet in all actions in the na-
ture of cases called in admiralty proceedings in rem,
such as attachments of property of non-residents, or suits
to recover property, or suits to foreclose liens on prop-
erty, and the like in short, any proceedings of such na-
8 Windsor v. McVeigh, 93 U. S. 274; Underwood v. McVeigh, 23
Grat. 409; McVeigh v. U. S. 11 Wall. 267.
*Hovey v. Elliott, 167 U. S. 409, 39 L. R. A. 449.
252 RIGHTS AND PRIVILEGES UNDER
ture personal service is not requisite to obtain juris-
diction and give the full relief properly pertaining to the
nature of the case; but there may be publication of the
process or notice of the proceeding, or service of notice
outside the state, such as the state law may prescribe, and
the judgment will be conclusive and binding as to the
particular property or subject attached or operated upon
in the proper way in the case. For reasons above quoted
from the Supreme Court, this is just as well settled as is
the rule that for personal judgment there must be per-
sonal service of process. The proceedings here referred
to are not technically proceedings in rem, as technical
proceedings in rem are those where the thing is seized in
admiralty, and the adjudication binds all mankind, par-
ties or not ; but the proceedings just spoken of are properly
denominated proceedings quasi in rem,, binding only the
parties interested in the property or subject before the
court, and binding them only as to that property or sub-
ject, except some proceedings to settle personal status,,
as divorce, or in probate of wills, which bind the world.
It makes no difference what is the form of the pro-
ceeding, whether by attachment, action to recover prop-
erty, real or personal, to partition land, to remove cloud
over title, or settle title to land, to probate a will, for
divorce, to enforce liens, so it be in nature and substance
a proceeding in rem f the rule applies. Though not tech-
nically in rem, it is quasi in rem, operative upon the res,
or thing or matter before the court. 9
Roller v. Holly, 176 U. S. 398; Arndt v. Griggs, 134 U. S. 316;
Cooper v. Reynolds, 10 Wall. 308.
TUB FOURTEENTH AMENDMENT. 253
"Jurisdiction is acquired in one of two modes: First,
as against the person of the defendant, by the service of
process; or, Second, by a proceeding against the prop-
erty of the defendant within the jurisdiction of the court.
In the latter case, the defendant is not personally bound
by the judgment beyond the property in question." 1
Divorce Suits and Others Affecting Personal Status or
requiring the execution of deeds. In these cases there
may, consistently with the amendment, be judgment or
decree without personal service, on publication, as the
proceeding is in nature in rem; but the law prescribing
such constructive notice in place of personal notice mast
be closely complied with, else the proceeding is void. 11
Though upon publication there can be a decree of divorce,
there can be no decree for alimony. That part of the
decree would be void, because a personal decree for
money. 12
If the law of the state of the actual domicile of the hus-
band or wife allows a divorce on publication or other
constructive service of process, without personal service,
the decree of divorce is effectual the world over, and is
due process, though the other party was never in the
state. 13 But this is not so, unless the statute as to publi-
cation of notice is complied with. If it is not complied
with, then the decree is void. 14 The actual domi-
lofioswell v. Otis, 9 Ho\v. 348.
nCheever v. Wilson, 9 Wall. 108; Harding v. Alston, 9 Me. 140;
Laney v. Garbee, 105 Mo. 355, 24 Am. St. R. 391.
i2Bunnel v. Bunnel, 25 Fed. 214; Turner v. Turner, 44 Ala. 450;
Coger v. Coger, 35 S. E. K. 823.
is Story, Confl. L. Sec. 230 ; Cheever v. Wilson, 9 Wall. 108.
i*Cheely v. Clayton, 110 U. S. 701.
254 RIGHTS AND PRIVILEGES UNDER
cile of either party will make the decree of divorce
good, if the law of that state allows a divorce there on
publication. 15 If neither party has a domicile in the
state, appearance in the suit does not make the decree
good. 16
If a party leave his domicile in one state and go into
another, only to get a divorce, and thus acts in fraud of
the law to obtain unlawful jurisdiction for his suit, the
wife not being served with process, but absent in the for-
mer state, the decree is void ; it is not by due process. It
will not be recognized in another state. To give juris-
diction for divorce, the party asking it must have actual
bona fide domicile in the state of the suit when the suit
begins, as no state has lawful power over citizens of an-
other state or their status. 17
Such divorces on constructive notice merely are in rem
final only on the personal status, dissolving the marriage,
making the parties no longer man and wife; but the de-
cree must not allow alimony or costs or make provision
as to the custody of children or property, and in so far
as it does so, it would be void elsewhere, likely in the state
itself, because not according to due process ; but where the
decree is rendered on personal service of process, it is
in personam and binding as to alimony, costs and custody
of children. 18
is Story, Confl. L. Sec. 230a.
ie Harrison v. Harrison, 20 Ala. 629, 56 Am. D. 227.
17 Cheever v. Wilson, 9 Wall. 123 ; Hood v. State, 56 Ind. 263, 26
Am. R. 21 ; Hoffman v. Hoffman, 7 Am. R. 299 ; Anderson v. Ander-
son, 57 N. E. 333 (full).
isfiunnel v. Bunnel, 25 Fed. 214.
THE FOURTEENTH. AMENDMENT. 255
Condemnation of Land. In this proceeding for con-
demnation of land for public use, publication of notice
to the land-owner, if non-resident, is sufficient, and is due
process of law; but if resident in the state, he must have
personal service of notice. 19
Settlement of Special Administrator. A statute allowing
a special administrator to make a settlement of his ac-
counts, and providing that it shall be conclusive on dis-
tributees without notice, held not repugnant to the Four-
teeth Amendment. He is like a special receiver in a
suit, 20
Denial of Jurisdictional Facts. Whilst a judgment in
one state on personal service of process or appearance
is a finality everywhere on the merits, establishing a debt
and precluding new inquiry into the merits of the cause
of action, in the courts of another state, not by common
law, but only by reason of Article IV of the Constitution
and the Act of Congress under it giving the judgment the
same faith and credit in other states as it has in the state
where rendered, yet when it comes up in another state,
it may be denied such force by proof that in fact there
was no personal service or appearance, even though the
record of the judgment assert that there was. It is set-
tled that the provision of the Constitution giving the
judgment in all states the same faith and credit which
it has in the state of its rendition does not preclude in-
quiry into Jurisdictional facts; and this on the prin-
ciple lying at the root of all judicial proceedings binding
v. Kaw Valley Co. 130 U. S. 559.
2oR Bard v. Lamb, 127 U. S. 58.
256 RIGHTS AND PRIVILEGES UNDER
the person, that we must see that the court had jurisdic-
tion of the subject-matter and the person. 21
Process on One Partner will not give right to a per-
sonal judgment against another, whether the firm is ex-
istent or dissolved, and such judgment is void as to him,
even if his copartner authorized an appearance for him. 22
Where a statute allowed a judgment against the firm
assets only, but to have no personal effect as to the partner
not served with process, the statute was held not to con-
travene the Fourteenth Amendment. 23
Escheat, Decree of, on mere publication of notice under
a statute allowing it, is valid against all interested in
the land, because it is an in rem proceeding. 24
Appearance to Question Jurisdiction. A statute con-
verted such appearance into a general appearance, and a
judgment in such case was held to be according to due pro-
cess, and not void under the Fourteenth Amendment. 25
Injunction Against a Citizen restraining him from pros-
ecuting a suit in another state, held lawful under the
federal Constitution. 26
Administration Granted for a Live Man as Dead is not
due process of law as to him, and is void. 27
21 Thompson v. Whitman, 18 Wall. 457; Stewart v. Stewart, 27
W. Va. 167; Gilchrist v. Land Co. 21 W. Va. 115; Bowler v. Huston,
30 Grat. 266, 32 Am. R. 673.
22 Hall v. Lanning, 91 U. S. 160; Ferguson v. Millender, 32 W.
Va. 30; Boiler v. Huston, 30 Grat. 266; 32 Am. R. 673.
23 Sugg v. Thornton, 132 U. S. 524.
24 Hamilton v. Brown, 161 U. S. 256.
25 York v. Texas, 137 U. S. 15.
2eCole v. Cunningham, 133 U. S. 107.
27 Scott v. McNeal, 154 U. S. 34.
THE FOURTEENTH AMENDMENT. 257
Attachment on Property Both In Rem and In Personam.
This may be the case. It is in rem if there is only attach-
ment of property ; but both in personam and in rem where
the defendant is personally served with process or appears,
and his property is attached. In the latter case, a judg-
ment that is both personal and also one subjecting the at-
tached estate may be entered otherwise only the prop-
erty can be sold. To make it valid as an in rem proceeding
there must be levy or seizure of the property; to make
it in- personam, there must be service personal, or appear-
ance in the suit, to be consistent with the demand of due
process of law. The judgment is not a personal one,
even in its own state, if without personal service or ap-
pearance, but affects only the property attached. 28
Ejectment or Other Suit to Recover Land, or partition it,
or a suit to remove cloud over it, or to quiet its title, or can-
cel a deed for mistake or fraud, or to set aside a deed as
fraudulent against creditors, or to foreclose a mortgage on
the land, or to subject land to judgment liens or mechan-
ic's liens, and the like, may go upon constructive service
of process by publication, as provided in the case by state
law, and it will be due process of law under the Fourteenth
Amendment, because it is the usual process in such cases,
and gives jurisdiction to the court over the subject-mat-
ter, and affects the property and its title alone, and im-
poses no personal liability on the defendant. There can
not be a personal judgment for costs in such a case. 29
The proceeding is in rem, not in personam in such cases.
This jurisdictional efficacy of the state courts must nec-
2? Cooper v. Reynolds, 10 Wall. 308.
2 Freeman v. Alderson, 119 U. S. 185.
258 RIGHTS AND PRIVILEGES UNDER
essarily be so, else a state would have no right to act
upon or settle title to land within it, where a non-resi-
dent claims it, and will not submit himself to its juris-
diction. A state must have power to act upon the title
to land within it and subject it to debt or other lawful
claim of its own people, or of others asking relief of it.
Such proceedings do not violate the Fourteenth Amend-
ment by depriving of property without due process of
law. 30
In Arndt v. Griggs, just cited, it is held : "A state may
provide by statute that the title to real estate within its
limits shall be settled and determined by a suit in which
the defendant, being a non-resident, is brought into court
by publication. The well-settled rule that action to quiet
title is a suit in equity; that equity acts on the person;
and that the person is not brought into court by publica-
tion alone does not apply when a state has provided by
statute for the adjudication of titles to real estate within
its limits as against non-residents, who are brought into
court only by publication." In the case is a full general
discussion of the principle as applicable to the classes of
cases above stated to be valid procedure under publication.
A late signal decision sustains, probably exceeds, the just
power of the state to settle and quiet title to lands without
regular suit on publication. An act of the legislature
established a Court of Registration. Application could
so Witten v. St. Glair, 27 W. Va. 762 ; Pennoyer v. Neff, 95 U. S.
714; Perkins v. Wakeham, 86 Cal. 581, 21 Am. St. R. 67; Young
v. Upshur, 42 La. Ann. 362, 21 Am. St. R. 385; U. S. v. Fox, 94
U. S. 315; Arndt v. Griggs, 134 U. S. 316; Adams v. Cole, 95 Mo.
501, 6 Am. St. R. 74; Mellen v. Moline Iron Works, 131 U. S. 352;
Wunstel v. Laundry, 39 La. Ann. 312.
THE FOURTEENTH AMENDMENT. 269
be filed with it specifying the land, stating outstanding
known interests in it, the name of the occupant of the land,
and names of occupants of adjoining land. A descrip-
tion of the land should be filed in the registry of deeds.
The case is then sent to an examiner to investigate and re-
port to the court. If that examiner reports that the ap-
plicant has good title to the land, or if adverse claim ex-
ists, a publication is made in a newspaper to all known to
have an interest to come forward and claim, and also to
adjoining owners "and all whom it may concern"; and
a copy is mailed to every known one named in the notice,
and a copy is posted on the land. The act declared that
the decree of registration "shall bind the land and be con-
clusive upon and against all persons," named or not in the
notice. It was said to deprive owners of property without
due process of law; but the court said that the proceed-
ing was in nature in rem, "and that if it did not satisfy
the constitution, a judicial proceeding to clear title against;
all the world is hardly possible ; for the very meaning of
such proceeding is to get rid of unknown as well as known
claims indeed, certainly against the unknown may be
said to be its chief end and unknown claims can not
be dealt with by any service on the claimant." The court
said that the fact that the proceeding had never before
been heard of made no difference as to due process ; that it
was in rem to clear title, and a valid procedure. The opin-
ion is strong and well deserves to be read for its perspic-
uous presentation of the subject under discussion. The act
was assailed as violative of the Fourteenth Amendment,
but the court strongly asserts that ancient remedies are
not impaired by that amendment. The case goes quite
260 RIGHTS AND PRIVILEGES UNDER
far, but I suppose it is tenable under principles above
stated. 31
The Supreme Court of Ohio apparently took another
vieAv in a case 32 before it involving what is known as the
-"Torrens Law/ 7 a statute to quiet title and simplify reg-
istration by a short registry. It provided for filing with
the recorder an application for registration, giving de-
scription of the land, naming adverse claimants, incum-
brancers, occupants and adjoining occupants, and for pub-
lication in a newspaper of notice "To whom it may con-
cern 77 of the filing of the application and a warning
to appear before the court and make claim, which notice
was served on those persons resident in the county, and
mailed to others elsewhere. When registry was ordered,
it cut off all adverse claim to the land. The court held
the act unconstitutional as depriving persons of property
without due process of law.
Forfeiture of Land for Taxes. Upon the same princi-
ples of proceedings quasi in rem may be based and vin-
dicated the West Virginia legislation providing for the
sale of land as forfeited for failure to enter it for
taxation, or to pay taxes actually assessed thereon, through
a suit in equity with publication to all persons interested,
the legislation declaring that the decree condemning the
the land as forfeited and subject to sale shall bind all
claimants. The legislation referred to will be found in
Chapter 105 of the West Virginia Code of 1891, reenacted
in Acts of 1893, page 57. It was attacked as violating
the state constitution and the Fourteenth Amendment of
siTyler v. Judges of Registration (Mass.), 55 N. E. 812.
32 State v. Gilbert, 56 Ohio St. 575; People v. Simon, 176 111. 165.
contra.
THE FOURTEENTH AMEXDMENT. 261
the federal Constitution in depriving land-owners of
property without due process of law; but the attack
upon the said legislation has been overruled, and the leg-
islation held to be consistent with state and federal con-
sti tut ions by the state and national Supreme Courts. 33
In both courts emphasis was placed, as going far to val-
idate the statute procedure, upon the fact and feature of
the statute that the sale to enforce the forfeiture was by
a chancery suit inter paries, and that notice was given of
the proceeding by service of process and and publication,
so that the parties had opportunity to defend their rights
and resist the alleged forfeiture. Justice Harlan, in de-
livering the opinion of the Supreme Court of the United
.States, laid great stress upon that feature of the case.
There has been much question about the constitutionality
under the Fourteenth Amendment of the provisions of
the West Virginia constitution and statute forfeiting lands
for failure of the owner to have them charged with taxes
on the land books, it being alleged that the state consti-
tution and statutes ipso facto from such non-entry for-
feited the land and vested the owner's title in the state,
without any judicial ascertainment of the delinquency of
its owner, and that this forfeiture was a deprivation of
his property without due process of law. But this con-
tention has been met in the cases cited by the answer that
under the process adopted by the state through a chancery
suit for the declaration of the forfeiture and the sale of
the land, the owner has his day in court to contest the
fact of forfeiture and exculpate his land from it. So this
33 State v. Sponaugle, 45 W. Va. 415, S2 S. R 283 ; King v. Mul-
lin>. 171 U. S. 404.
262 RIGHTS AND PRIVILEGES UNDER
matter has been set to rest. Both forfeiture and sale pro-
cess have been held valid. Legislation in Virginia many
years prior to the Fourteenth Amendment existed in re-
peated acts forfeiting large areas of land for the non-
payment of taxes assessed thereon, or for the failure of
owners to enter it for taxation. The proceeding for the
sale of such land as forfeited was not a proceeding by
suit inter paries, but simply an ex parte proceeding to
sell the land, without any provision for hearing the own-
er; indeed, it. was he]d that he had no right to a hear-
ing. 34 The Virginia courts in several cases 35 held that
the Virginia statutes proprio vigore, without office found
or any inquisition judicial in its nature, forfeited the land
and invested the state with its title, and that such statutes
were constitutional. It is true that those decisions ante-
dated the Fourteenth Amendment, but there was in the
Virginia constitution the provision that no one should be
deprived of his property without due process of law. As
stated in the cases of State v. Sponaugle and King v. Mul-
lin, supra,, such forfeiting statutes had been long and fre-
quently resorted to by the state of Virginia as a means
and ordinary process for the enforcement of payment of
her taxes, and under the strong powers of a state on the
subject of taxation those statutes were ancient, ordinary,
usual and due process for the enforcement of her rights
against delinquent taxpayers long before 'the coming of
s* McClure v. Maitland, 24 W. Va. 561 ; McClure v. Mauperture,
29 W. Va. 633.
35 Wild v. Serpell, 10 Grat. 405; Statts v. Board, 10 Grat. 400;
Levasser v. Washburn, 11 Grat. 572; Usher v. Pride, 15 Grat. 190.
See Armstrong v. Morrill, 14 Wall. 120.
THE FOURTEENTH AMENDMENT. 263
the Fourteenth Amendniert, and were not impugned
by it.
Judgment against Corporations on Leaving Summons with
Register of Deeds, though authorized by statute, is not by
due process under the Fourteenth Amendment. 36
Alimony, Decree for, without service of process inside
of the state, though service be made outside of the state,
is void, and not due process under the Fourteenth Amend-
ment. 37
Specific Performance of Contract to Convey Land may be
decreed against a non-resident, without personal service
of process, on mere publication of notice, and the pro-
ceeding is valid and due process. This is so upon prin-
ciples fully stated above, it being a proceeding in rent, a
suit to recover the land sometimes, and at any rate, a suit
to secure title to the land within the state. 38
Probate of Wills is an action in rem, and though entirely
ex parie, and without service of process, and even without
publication, is due process in such case; was so held
long before the Fourteenth Amendment, and the order of
probate is binding on the world. 39 It might seem that r
probate sentence for or against the validity of a will for*
ever binding anyone interested, who being absent in dis- 1
tant parts, never heard of the motion for probate, would
be undue process; but the authorities hold that a sen-
tence either probating or refusing to probate a will is
final and conclusive upon everybody, whether adults or
v. Providence Co. (Wis.), 82 N. W. 308.
STElmendorf v. Elmendorf, 44 Atl. 164; Coger v. Coger, 35 S. E.
823: Bunnel v. Bunnel, 25 Fed. 214.
sBoswell v. Otis, 9 How. 336.
soGaines v. Fuentes, 92 U. S. 21.
264 RIGHTS AND PRIVILEGES UNDER
infants, married women or others, unless statute law other-
wise provide. The authorities say that this is so, because
the proceeding is one in rem. I cite, in addition to the
authorities given above, others in the footnote. 40
Estrays. Statutes giving estrays to the finder are valid.
The proceeding is an ancient one under the common law,
and is in nature in rem. 41
Judgment in one State no Lien in Another, even where
process was personally served, and the judgment is one
in every respect binding and constitutes a lien in the state
where rendered. If it were a lien in another state, that
would be to give one state jurisdiction and power over
property in another, which can not be. 2s~or can execution
issue upon the judgment in the state where rendered to
run into and be levied in another state, as that would vio-
late the fundamental rule that judicial process of one
state can not have force in another, as the law and
adjudication of one state can have no extra-territorial
force, because that would infringe upon the sovereignty
of another state. The judgment is only a simple contract
debt in the second state. If it is desired to enforce that
judgment in other states, there must be suit in other states
on the judgment to obtain a judgment upon it, in order
to create a lien or have process of execution in other states.
The faith and credit given to the judgment by Article IV
in another state is, that if the court of the judgment had
jurisdiction, that judgment is conclusive evidence of the
4<>Schultz v. Schultz, 10 Grat. 358; Ballou v. Hudson, 13 Grat.
672; 3 Redf. on Wills, 63; Young's Will, 123 N. C. 358, 31 S. E.
626; Carpenter v. Bailey (Gal.), 60 Pac. 162.
4i Campbell v. Evans, 45 N. Y. 350.
THE FOURTEENTH AMENDMENT. 265
liability, and precludes a re-trial or re-investigation of
the merits of the cause of action. Beyond this it would
not be due process of law. 42
Publication as to Unknown Claimants of land in actions
to try adverse claims or quiet title, or to affect the land
itself binds them, and the decree or judgment is valid,
because the proceeding is in rent. 4 *
Decree for Execution of a Deed If the defendant is
personally before the court, a decree requiring him to
execute an instrument which will pass title to land situate
in another state is valid and due process. It is the deed,
not the decree, that operates on the property and passes
the title. 44 But it seems from the cases cited that the
deed must be made by the party himself, and not by a
commissioner or other agent of the court appointed by the
decree to make such deed, as that would be only the decree
operating beyond the state.
Service of Process Outside the State issuing it is ranked
simply as publication in a newspaper, or by posting, is
only in lieu of publication, has no more force than pub-
lication, and gives no right to enter personal judgment.
Process can not run outside of a state, and has no manda-
tory force to require the defendant to attend the court. 45
But it is "due process," as several times stated above, to
affect property in the state, as, for instance, a suit to en-
42McElmoyle v. Cohen, 13 Pet. 312; Carter v. Bennett, 6 Fla.
214.
Shepherd v. Ware, 46 Minn. 174, 24 Am. St. R. 212.
" Watkins v. Holman, 16 Pet. 67 ; Wilson v. Braden, 47 W. Va.
. ; Dickinson v .Hoomes, 8 Grat. 410.
45Harkness v. Hyde, 98 U. S. 476; York v. Texas, 73 Tex. 651.
266 RIGHTS AND PRIVILEGES UNDER
force a lien, or any in rem proceeding, if notice not too
short; not good if too short. 46
Garnishment in State of Debtor of a Debt due to a Kesi-
dent of Another State is valid due process to take the debt
from the garnishee's creditor, and protect the garnishee
from an action by his creditor. It is a proceeding in rem
in the state of garnishment, and is valid under the Four-
teenth Amendment as due process, and the judgment is
.entitled to the same force in other states which it has in
the state of garnishment, as to the debt, under Article IV,
Section 1, of the federal Constitution. 47 There are some
cases denying this proposition, holding that the situs of
the debt is not in the state of the garnishee, but in the
state of the other debtor, the garnishee's creditor, and
therefore there can be no proceeding in the state of the
residence of the garnishee that can affect the creditor of
that garnishee for want of jurisdiction. I think, how-
ever, that those cases just cited hold the better doctrine.
They hold that the situs of the debt is in the state where
the garnishee owing the debt resides, and that it is there
subject to garnishment in the courts of that state as prop-
erty located in it. The author expressed his views in a
dissenting opinion in Stewart v. Northern Company, 48
saying: "The justice in Ohio had jurisdiction and au-
thority under the law of Ohio to render the judgment
against the garnishee. This is not denied. This judg-
ment had the effect there to protect the defendant against
46 Roller v. Holly, 176 U. S. 398, 20 Sup. Ct. 410.
47 Chicago, etc. Co. v. Sturm, 174 U. S. 710; King v. Cross, 175
U. S. 396, 20 Sup. Ct. 131.
4845 W. Va. 734, 742, 32 S. E. 222.
TEE FOURTEENTH AMENDMENT. 267
a suit by Mrs. Stewart (resident in West Virginia) to
make him pay the money again. Having this force in
Ohio, it must have the same force in every state, under
the United States Constitution, providing that 'full faith
and credit shall be given in each state to the public acts,
records and judicial proceedings of every other state/
and the act of Congress under it that judgments in a court
of one state 'shall have such faith and credit given them
in every court within the United States as they have by
law or usage in the courts of the state from which they
are taken.' We do not go behind the Ohio judgment to
see on what contract in favor of the creditor it was ren-
dered, whether good or bad, void or not, because the only
question is: Had the court jurisdiction, and did it give
judgment protecting the garnishee there ? 1 Greenl. Ev.
548. 'It is a question of constitutional obligation, not
of state policy, whether our courts will enforce a judgment
of another state court of competent jurisdiction having
jurisdiction in the case. When a judgment or decree of
the court of another state is sought to be enforced in this
state the court in this state may inquire into the jurisdic-
tion of the court which rendered the judgment or decree ;
and if it appears that such court had no jurisdiction the
judgment or decree is void ; but if it had jurisdiction the
judgment or decree is valid and binding in this state/
Stewart v. Stewart, 27 W. Va. 167. 'The first question
to be determined in regard to a judgment of another state,
after jurisdictional inquiries have been satisfactorily an-
swered, is, what is its effect in the state whence it was
taken ? The effect which it has there is precisely the
effect which ihust be accorded to it in everv other state.
268 RIGHTS AND PRIVILEGES UNDER
It must not be given any greater effect than it had in the
state wherein it was rendered. If the judgment appear
on its face to be harsh and erroneous, it must be received
and enforced, irrespective of its harshness. The pleas
which might be made to it at home, and those only, can
be made to it in any other part of the Union.' 2 Freem.
Judgm. 575.
The law is that it is not the domicile of the owner of the
debt garnished that tests the place of jurisdiction for
garnishment, but the question whether the court had con-
trol over the garnished debtor within its territory. Moo-
ney v. Manufacturing Company, 34 U. S. App. 582; 18
C. C. A. 421; 72 Fed. 32; Douglass v. Insurance Co.,
138 K Y. 209 ; 33 K E. 938. Mrs. Stewart could sue the
company in Ohio, and therefore it could be garnished
there. 'Foreign corporations are subject to the process of
garnishment in all cases in which an original action may
be commenced against them in the courts of this state to
recover the debt in respect to which the garnishment pro-
cess is served. ... A foreign corporation doing busi-
ness within the state may generally be made a garnishee
in that state when, by the laws of the state, service of pro-
cess may be properly made upon it therein ; when accord-
ing to the jurisdictional rule, the debt is payable within
the state, or the corporation has within its control prop-
erty belonging to the principal defendant.' 2 Shinn,
Attachm. 493. 'When there is a seizure of the defend-
ant's property at the commencement of the action, or,
in garnishment, what is equivalent to seizure at that time,
namely, service of process upon the garnishee, accom-
panied in both cases by publication or other form of sub-
THb' POUttTtiFNTH AMENDMENT. 269
stituted service against a non-resident defendant, it is well
settled that such process is due process of law in attain-
ment suits, and that a judgment so rendered will divest
the defendant of his title to such property, and will pro-
tect the garnishee from the danger of double payment.' '
Keno, Xon-Res. 241. See Molyneux v. Seymour, 76
Am. D. 671.
2 Black, Judgment, 852, says: "The judgment of a
foreign court of competent jurisdiction, in a proceeding
in the nature of a garnishment, is binding and conclusive
and affords a complete protection to the garnishee, and the
money paid under it can not be recovered back by the
original owner of the debt in any action in another coun-
try." Garnishment is a proceeding in rem, binding every-
where (2 Shinn, Attach. 486; 76 Am. Dec. 671; 1
Gr^enl. Ev. 543) ; at least so far as the property gar-
nished and its owner are concerned. "The liability of
property belonging to non-residents to be attached and
sold under legal process is determined by the law of the
state in which the property is actually situated, and from
whose courts the process issues, and is not determined by
the law of the state in which the owner resides. Hence, in
case of conflict between the laws of these two state, the law
of the former governs." Reno, Xon-Res. 148. "Where,
however, the garnishee is a resident of the state, the fact
that the principal debtor is a non-resident will not affect
the validity of the garnishment proceedings, because at-
tachments are permitted against non-resident debtors. And
the fact that the principal defendant is served by publi-
cation only has no effect upon the jurisdiction of the court,
when the property or debt is within the power of the
270 RIGHTS AND PRIVILEGES UNDER
court; that is to say, where the property is within the
jurisdiction of the court, or the debt is payable therein. 77
2 Shinn, Attach. 861.
The majority of the court in the case of Stewart v.
Northern Assurance Company, just cited, held that the
contract of Mrs. Stewart was void under the laws of West
Virginia because she was a married woman, and there-
fore it could not be enforced against her by garnishment
of her debtor in Ohio. As to this feature the author
said: "This is no matter. The question is the force of
the Ohio judgment in Ohio. Eev. Stat. of Ohio, 4996,
5319, authorize judgments on married women's contracts.
Thus, the judgment is not void there. . . In West Va.,
in Black v. Smith, 13 W. Va.,780, held that 'when a court
of law in the state of Maryland, having jurisdiction of
the subject and person of the citizen, renders judgment
in a cause therein pending against such citizen for
money, the validity of such judgment can not be ques-
tioned in the courts of this state; nor will the courts of
this state look into the transaction upon which the Mary-
land judgment is founded, in order to ascertain if that
judgment ought not to have been rendered.' Johnson,
President, in Stewart v. Stewart, 27 W. Va. 173, said:
'But it is not on the ground that such suits have been
maintained in many states that we would enforce a de-
cree for such cause in our own courts, nor would we sus-
tain it because it agreed with our policy, nor refuse to
enforce it here, because it is hostile to our policy. The
reason why we would enforce a decree rendered by a court
of competent jurisdiction in another state is the fact that
THE FOURTEENTH AMENDMENT. 271
the Constitution of the United States requires us to do
so."
The author went on, in that opinion, to show that mere
personal disability would not affect the validity of the
judgment, unless it rendered the judgment void in the
state where it was rendered, citing 2 Black, Judg. 888,
and contended that the validity or invalidity of the judg-
ment in Ohio was the true test.
"Garnishment of a resident debtor to reach a debt due
to a non-resident defendant who has no property subject
to the jurisdiction of the court, does not deprive him of
property without due process of law." 49
Non-Resident Share-Holders. It has been held that in a
suit in a state court to ascertain and declare ownership
among conflicting claimants to shares in the capital stock
of a corporation, and to remove cloud over the title to
such shares, publication to non-resident claimants is suffi-
cient, and due process, as the proceeding is one in rem.
Criminal Process. Presence of Accused. Principles of
the common law, and most of the state constitutions and
and statutes, imperatively require, as an initial step, be-
fore any further one in the process of conviction of felony,
that the accused shall be personally present to answer the
indictment. He can not do so by counsel. He must be
so present at every step when anything material to his
interests is done in his case down to and including final
judgment. In any case not felony he may be tried upon
such service of process as the state allows, and judgment
may be rendered against him for pecuniary penalty,
King v. Cross, 175 U. S. 396, 20 Sup. Ct. 131.
sojellenix v. Huron Copper Co. 177 U. S. 1.
272 RIGHTS AND PRIVILEGES UNDER
though he be not personally present during trial or at
the judgment ; but if any corporal punishment is inflicted
he must be present at the judgment, though his presence
during the trial may be dispensed with, at least in the
Virginias and some other jurisdictions likely everywhere,
in the absence of a statute. If not present at the verdict
he is brought in to receive judgment by a writ of capias
ad audiendum judicium. There can be no judgment for
even pecuniary penalty on publication, without personal
service of process, to be good in the state where rendered
or elsewhere. 51 Of course, any judgment for felony or for
misdemeanor imposing corporal punishment without the
presence of the accused would deprive him of liberty
without due process of law, because the proceeding would
be undue and unusual, departing from the accustomed
procedure in such cases, and would violate the Fourteenth
Amendment. So would a judgment for a pecuniary fine
without personal service to answer the charge.
Presence of Accused, no matter what the grade of offense,
though necessary under circumstances just stated in the
original trial court, is not usual and is not required in an
appellate court when the sentence or judgment against
him is affirmed, in order to make that affirmance valid, due
process. This is so, because the case is not being tried
upon the facts upon the party's deliverance before a jury
of his country, as that has already taken place. The ap-
5i 1 Bishop, Grim. Proceed. Sec. 265 ; Wharton, Grim. PI. & Prac.
Sec. 540; Warren v. State, 19 Ark. 214; 68 Am. Dec. 214 and full
note; State v. Campbell, 42 W. Va. 246, 24 S. E. 875; Barclay v. Bar-
clay, 184 111. 471; Moundsville v. Fountain, 27 W. Va. 182.
THE FOURTEENTH AMENDMENT. 273
pellate court merely affirms the judgment already ren-
dered, and does not render a new judgment. 52
Municipal Offense is triable by the mayor of the city or
town without a jury, and is due process. A jury has never
been used in such cases. The Fourteenth Amendment
does not change this. 53
Limiting Number of New Trials by State Statute is not
in violation of the Fourteenth Amendment. It is mere
state regulation of procedure in its courts, which is al-
lowed to it.* 4
Governor IFixing Day of Execution of Death Sentence, pur-
suant to a state statute, does not take away life without
due process, contrary to the Fourteenth Amendment. It
is not the improper exercise by the executive of judicial
power. The court has rendered the judgment, the law has
adjudicated upon the rights of the state and the accused,
the court function has been performed, and the fixing of
a day for execution is simply ministerial action. 55
State Constitution Divesting Husband's Rights. A state
constitution or statute can not divest a husband of his
marital rights vested in him in his wife's property be-
fore the adoption of such constitution or statute, because
that would be to deprive him of his actual property with-
out due process of law; but such constitution or stat-
ute may provide that the wife's future-acquired property
shall be her separate estate, free from the control or debts
of her husband, although the marriage took place before
52 Schwab v. Bergren, 143 U. S. 442.
ssXatal v. Louisiana, 139 U. S. 621; Thesen v. McDavid, 16 So.
321, 34 Fla. 440; Moundsville v. Fountain, 27 W. Va. 182.
s* Louisville, etc. Co. v. Woodson, 134 U. S. 614.
B5Holden v. Minnesota, 137 U. S. 483.
274 RIGHTS AND PRIVILEGES UNDER
the adoption of such constitution or statute j and this is so,
because at that date the husband had no vested prop-
erty. 56
Statutes of Limitation. The right of the state to pass
statutes limiting the time within which actions and suits
shall be brought for the recovery of property, debt or dam-
age is power which for centuries has been exercised by the
legislature of the states and by the British Parliament
before American independence, and is therefore due and
ordinary process of law, cutting off rights, which but for
such statutes would continue to exist. Clearly, therefore,
the Fourteenth Amendment does not impair this right.
Suppose, however, the legislature shall repeal a stat-
ute of limitations as to any action, or lengthen its pe-
riod, and thus cut off defenses good before, under the
statute of limitations. Does such legislation violate
the Fourteenth Amendment by depriving the person of
property without due process of law ? The West Virginia
Supreme Court held 57 that "where title to property has
vested under the statute of limitations no act can, by ex-
tending the statute or reviving the remedy, impair such
title. It would be unconstitutional, because depriving
one of property without due process of law ; but where the
demand is on contract, or any class of actions where the
statute merely gives a defense, and does not vest property,
there is no vested right to such mere defense, and the leg-
islature may, by repeal of the statute or otherwise, revive
the action, and deprive one of such defense." The dis-
tinction there made is, I think, well founded, though, as
66 Allen v. Hanks, 136 U. S. 300.
"McEldowney v. Wyatt, 44 W. Va. 711, 30 S. E. 239.
TUB FOURTEENTH AMENDMENT. 275
stated in the opinion, perhaps the preponderance of au-
thority does not make that distinction, but goes to the
proposition that whether it is a case where title to prop-
erty has vested under the statute or is a mere defense
against action on contract or tort which has matured, that
defense can not thus be taken away. The United States
Supreme Court, however, makes such distinction, holding
that a repeal of the statute cutting off a defense against
a debt does not deprive of property contrary to the Four-
teenth Amendment. 58
The opinion by Justice Miller says : "By the long and
undisturbed possession of tangible property, real or per-
sonal, one may acquire a title to it, or ownership superior
in law to that of another, who may be able to prove an
antecedent and, at one time, paramount title. The su-
perior or antecedent title has been lost by the laches of
the person holding it, in failing within a reasonable time
to assert it effectively; as, by resuming the possession to
which he was entitled, or asserting his right by suit. What
the primary owner has lost by laches the other party has
gained by continued possession without question of his
right. This is the foundation of the doctrine of prescrip-
tion, a doctrine which, in the English law, is mainly ap-
plied to incorporeal hereditaments, but which, in the Ko-
man law, and the codes founded on it, is applied to prop-
erty of all kinds. . . .
Possession has always been a means of acquiring prop-
erty. It was the earliest mode recognized by mankind
of the appropriation of anything tangible by one person
"Campbell v. Holt, 115 U. S. 620.
276 RIGHTS AND PRIVILEGES UNDER
to his own use, to the exclusion of others, and legislators
and publicists have always acknowledged its efficacy in
confirming or creating title. The English and American
statutes of limitation have in many cases the same effect,
and if there is any conflict of decision on the subject, the
weight of authority is in favor of the proposition that
where one has had peaceable, undisturbed, open posses-
sion of real or personal property, with an assertion of
ownership, for the period which, under the law, would
bar an action for its recovery by the real owner, the former
has acquired a good title a title superior to that of the
latter, whose neglect to avail himself of his legal right
has lost him his title. It may, therefore, very well be
that, in an action to recover real or personal property,
where the question is as to the removal of the bar of the
statute by legislative act passed after the bar has become
v O ,
perfect, such act deprives the party of his property with-
out due process. The reason is that by the law in exist-
ence before the repealing act, the property had vested in
the defendant. . . But we are of the opinion that to re-
move the bar which statutes of limitation enable a debtor
to interpose to prevent the payment of his debt stands on
very different ground."
Suppose, next, that the legislature shortens the period
of limitation, and thus destroys a right to recover prop-
erty, or debt on contract, or damages for a tort, which
right was alive at the date of that act. The right to re-
cover in any one of the cases is a vested right of property.
The legislature can pass retrospective acts, and, it may be
said, can even destroy vested property, in the absence of
THE FOURTEENTH AMENDMENT. 277
hindrance by constitutional restraint; 59 but there is the
state constitution and the federal prohibiting any act to
impair a contract or to take away property without due
process of law. The Fourteenth Amendment does the
latter, and both federal and state constitutions prohibit
the impairment of a contract by law. Such an act short-
ening the period of limitation active upon existing rights
of action, if construed to be retroactive, or so in express
words, is a violation of the state constitutions and the
Fourteenth Amendment, unless it gives a reasonable time
within which to bring suit upon such existing causes of
action for property, for debt or other contract, or for dam-
ages for torts. The Supreme Court holds that consistently
with the Fourteenth Amendment the state legislature may
prescribe a limitation for an action where none was be-
fore, or shorten the time within which suits on existing
rights of action must be brought, "provided a reason-
able time, taking all the circumstances into considera-
tion, be given by the new law for the commencement of
suit before the bar takes effect." 60
Several former cases in the Supreme Court are there
cited. If the act does give such time for bringing suit,
it does not impair the obligation of a contract or deprive
of property without due process. Whether the time al-
lowed for suit before the bar of the new law applies is
reasonable, depends on the circumstances. "No one rule
can be laid down for determining as to all cases alike,
whether the time allowed was or was not reasonable ; that
5 Sedgwick, Stat. & Const. L. 166.
o Wheeler v. Jackson, 137 U. S. 245; Terry v. Anderson, 95 U. S.
628; Saranac L. Co. v. Roberts, 177 U. S. 318; 20 Sup. Ct. 645.
278 RIGHTS AND PRIVILEGES UNDER
fact must depend upon the circumstances in each case." 61
It has been held that several months between the passage
and the going into effect of the new law will not do ; that
the time between passage and taking effect of the act
can not be counted. 62
Validating Void Contracts. It seems that a statute vali-
dating an antecedent void contract is not open to the im-
putation that it impairs the obligation of a contract, con-
trary to the federal or state constitution, or that it de-
prives one of property without due process of law. An
act confirming previous loans by foreign corporations was
held not unconstitutional. 63
A void contract of a municipal corporation can be vali-
dated by the legislature. 64 But how if it is a private con-
tract? The legislature can not make a contract binding
on me which is not so in law. A legislature can do almost
what it pleases with a municipal corporation of the state ;
it can make it pay debts which otherwise would not bind
it, as the legislature can pay a debt of the state which
would not bind it, without such validation. Can it so act
on private corporations ? I doubt. But if it can it would
be on the theory that the corporation had received its fran-
chise from the state. It can not be done. 65
Dissolving Corporations by Judgment of State Court whero
the corporation had opportunity for full defense was held
not to deprive the corporation of franchise or property
ei Terry v. Anderson, 95 U. S. 628.
62 Gilbert v. Ackerman, 159 N. Y. 118, 45 L. R. A. 118.
63 Gross v. U. S. Mortg. Co. 108 U. S. 477.
64 Steel Co. v. Erskine, 98 Fed. (C. C. A.), 215.
65 Farmers' Bank v. Gunnel, 26 Grat. 131.
THE FOURTEENTH AMENDMENT. 279
without due process of law. 66 The power of courts, for
non-user or mis-user of franchise by a corporation, to dis-
solve it was well established long before the Fourteenth
Amendment.
Private Mill. An act granting right to a man to build
a mill on his own land, paying damages to owners of lands
flooded thereby, was held not to deprive such owners of
property without due process. 67
Act Regulating Contest for Election held not to take away
life, liberty or property without due process of law. 68
Jury Trial in State Court is not a "privilege or immun-
ity" of national citizenship protected under the Fourteenth
Amendment. 69
Disbarring Attorney. This is not a criminal case giv-
ing a right to a trial by jury, but is a proceeding to pro-
tect the court from official ministration of persons unfit
to practice as attorneys, and it does not invade the con-
stitutional provision that no person shall be deprived of
life, liberty or property without due process ; but the pro-
ceeding itself (by rule to show cause why the attorney
should not be disbarred) is itself due process, because long
used as usual procedure in such case. 70
Board to Assess Railroad Taxes. Such assessment need
not be made by a court, but may be made by officers of the
state or a board of persons constituted therefor expressly
by an act of the legislature. This process is due proc-
ess in such case, though the. act does not require notice to
6 Chicago Life, etc. Co. v. Needles, 113 U. S. 574.
67 Head v. Amoskeag, 113 U. S. 9.
s Kennard v. Louisiana, 92 U. S. 480.
\\alker v. Sauvinet, 92 U. S. 90; Chappell, etc., Co. v. Sulphur
Mines Co., 172 U. S. 474.
TO fa parte Wall. 107 U. S. 265.
280 RIGHTS AND PRIVILEGES UNDER
the railroad company before the assessment becomes final,
as the statute fixes the time and place of the meeting of the
board; nor though the act does not require the board to
grant a hearing for correction of errors, as by the con-
struction of the act by the state Supreme Court a right
to hearing is given; nor for want of notice to be heard
after determination by the board, as re-hearing is not nec-
essary. 71
Condemnation of Property for Public TIse. The Four-
teenth Amendment applies to proceedings for the condem-
nation of property for public use instituted after its adop-
tion, though under a statute passed before that amend-
ment. 72
Act Prescribing Additional Punishment on Second Convic-
tion. In almost all the states we find statutes leveled
against habitual criminals imposing additional punish-
ment on those convicted of crime more than once. Such
legislation has been held not to deny the equal protec-
tion of the law guaranteed by the Fourteenth Amend-
ment. 73
Imprisonment of Inebriates in Sanatarium, by virtue of a
statute for their treatment and reformation, where the or-
der of confinement is in the absence of the party and with-
out notice to him, is not due process of law, such commit-
ment being final and not temporary only to restrain the
person during period of danger. And it makes no differ-
ence that the statute reserves .the right to review the order
of commitment by habeas corpus, this not being due proc-
fiPittsburg, etc. Co. v. Backus, 154 U. S. 421, 438.
"Kaukana, etc. v. Green Bay, 142 U. S. 254.
73McDonold v. The Commonwealth, 173 Mass. 322.
THE FOURTEENTH AMENDMENT. 281
ess, as that term means process before final judgment. It
is not valid as a temporary commitment, as no investiga-
tion after such commitment to ascertain the party's con-
dition is directed by statute. It was held that there might
be temporary, summary commitment in the case of a dan-
gerous or incompetent person, as in the case of alleged
criminals held in confinement until they are tried; and
the constitutional provision for due process does not ex-
clude proper and reasonable police regulations as to tem-
porary confinement until trial. 74
Cigarettes, Sale of. A city ordinance may require li-
cense to sell cigarettes and prohibit their sale within two
hundred yards of a schoolhouse. Such an ordinance does
not deprive of liberty without due process of law. 75
Ticket Brokers. A statute prohibited the sale of pas-
sage tickets by anyone but common carriers, and it was
held violative of the Fourteenth Amendment under the
head of "liberty," because it took away liberty of con-
tract, liberty to sell a lawful article. Perhaps it was con-
trary to the equal protection clause also, because it al-
lowed common carriers only to sell such tickets. 76
Struck Jury. In 2sTew Jersey the law provides for the
ordinary jury and also a special jury formed in another
way, and under the ordinary jury the prisoner has twen-
ty peremptory challenges, but only five under the struck
jury. A party sentenced to be hanged for murder claimed
that his life was to be taken without due process of law,
74 People v. St. Saviour Sanitarium, 34 App. Div. 363. See
Evans v. Johnson, 23 L. R. A. 737, 39 W. Va. 299, 19 S. E. 623.
*5 Gundling v. Chicago, 176 111. 340, 177 U. S. 183, 20 Sup. Ct. 633.
re People v. Warden, 157 N. Y. 116, 43 L. R. A. 264.
282 RIGHTS AND PRIVILEGED UNDER
contrary to the Fourteenth Amendment, he having been
tried by a struck jury ; but the Supreme Court of the Unit-
ed States held that the highest state court had decided that
the statute for such a struck jury was valid under the state
constitution, which fact foreclosed that question in the
national Supreme Court. 77 The court said: "The state
has full control over the procedure in its courts, both in
civil and criminal cases, subject only to the qualification
that such procedure must not work a denial of fundament-
al rights, or conflict with specific and applicable provision
of the federal Constitution. Ex parte Keggel, 114 U. S.
642 ; Iowa, etc., v. Iowa, 160 U. S. 389 ; Chicago, B. & Q.
Co. v. Chicago, 166 U. S. 226. The Fourteenth Amend-
ment does not profess to secure to all persons in the United
States the benefit of the same laws and the same remedies.
Great diversities in these respects may exist in two states
separated only by an imaginary line. On one side of the
line there may be a right of trial by jury, and on the other
side no such right. Missouri v. Lewis, 101 U. S. 22, 31."
The conviction was affirmed.
Error in Trial Life Sentence It is well settled that a
regular trial, criminal or civil, in the due and orderly
course of state law, is due process under the Fourteenth
Amendment, even though there be error in the proceed-
ing, which would reverse it on appeal to a state court,
provided the judgment be not utterly void. Hence a fail-
ure to charge a jury that it could find the prisoner guilty
"Brown v. New Jersey, 175 U. S. 172; Leeper v. Texas, 130
U. S. 463.
THE FOURTEENTH AMENDMENT. 283
of murder either in the first or second degree was held
no violation of the Fourteenth Amendment. 78
Prima Facie and Conclusive Evidence of Guilt. Statutes
making certain evidence or facts conclusive evidence of
guilt of crime are held to violate the constitutional de-
mand for due process of law before life or liberty can
be taken ; but this is not so if the statutes make such evi-
dence of facts only prima facie evidence of guilt. In the
one case the party may repel before his country the force
of the state's case, in the other his fate is sealed, and he
can not answer such facts or evidence. 79
Curative Act of Void Criminal Proceedings is a violation
of the Fourteenth Amendment as depriving of life, liberty
or property without due process of law. 80 A void thing
can not be made whole.
Insane Convict. A state statute authorizing a sheriff to
summon a jury to try whether a convict became sane after
death sentence was held not contrary to the Fourteenth
Amendment. The Supreme Court said that the common
law did not give a trial before a court and jury in such
a case, and that as the highest state court had held the
statute to be valid state procedure, so would the United
States Supreme Court. 81
Mechanic's Liens. There is no doubt about the con-
stitutionality of the statutes found in almost every state
78 Davis v. Texas, 139 U. S. 651; Hallinger v. Davis, 146 U. S.
314: Lambert Barrett, 159 U. S. 660; Laidley v. Land Co. 159 U. S.
103.
79 State v. Bingham, 42 W. Va. 234, 24 S. E. 883; Wooten v. State,
24 Fla. 335, 1 L. R. A. 819; Castillo v. McConnico, 168 U. S. 674;
Meyer T. Berlandi, 39 Minn. 438, 12 Am. St. R. 663.
80 State v. Doherty, 60 Me. 504.
-i Xobles v. Georgia, 168 U. S. 398.
284 RIGHTti AND PRIVILEGES UNDER
of the Union giving mechanics and materialmen liens
for building and material furnished under contract with
the owner of the land; but how as to statutes giving sub-
contractors, laborers and others building, laboring or fur-
nishing material to the contractor under contract with him,
but without contract with the owner ? Can that owner's
property be charged with a lien and taken from him when
he made no contract with the subcontractor ? Does this
deprive him of liberty and property without due process
of law in taking away his right of contract, in refusing
him right to contract or not to contract as he pleases, and
the right, if he chooses not to contract, and has not con-
tracted, to be exempt from the imposition of a liability as
if he had contracted, and in rendering his property lia-
ble for such burden? Some cases hold such statutes void
for these reasons, and also because they are made, not to
subserve general public weal and want, but only for pri-
vate ends, and thus denying equal protection of the law.
The authorities, however, differ. Jones on Liens 82 says
that the constitutionality of those statutes is well estab-
lished, and cites many cases, their theory being that the
statutes annex the lien as an incident to the contract be-
tween the land-owner and the main contractor, that con-
tract being evidence of an authority of the contractor to
charge the owner's property with liabilities incurred ty
such contractor in performing the contract. This does
not seem to be a conclusive reason. It would seem that
a stronger reason, if there is any good reason, is that when
he contracts the owner knows, or is held to know, that the
law allows a lien to the subcontractor, and therefore the
82 Vol. 2, Sec. 1304.
THB FOURTEENTH AMENDMENT. 285
owner contracts with an eye to that law. But those cases
hold the land liable to the subcontractor without regard
to the state of accounts between the owner and the orig-
inal contractor, even if the owner's debt has been paid.
The rule seems questionable. Some cases hold such stat-
utes void. 83
No Jury in Equity. How comes it that the invariable
practice in chancery is for the chancellor to decide mat-
ters of fact, whereas matters of the very same nature are
tried in common law courts by a jury, and must be so tried
under the Constitution ? Is this practice in chancery due
process of law ? It would not be so in common law cases,
but it is in equity. It has been frequently above stated
that due process of law as required in the Fourteenth
Amendment is not a new departure, not a demand for any-
thing new, but that such law and procedure as were usual,
established, due and accustomed and applicable to all
alike who were similarly circumstanced when that amend-
ment came, is still due process under it. For centuries
before the amendment equity jurisprudence and chancery
courts, as they came from England, had existed, and those
courts tried matters of fact without juries, the chancellor
passing on both fact and law, unlike common law courts.
Chancery courts knew no jury, except in a few special
cases of issues out of chancery sometimes ordered to set-
tle doubtful questions of fact merely to "satisfy the con-
science of the chancellor," not that the party had absolute
right to demand it. That is a different matter from the
general jury right. Hence, there is no want of due proc-
ss Spry L. Co. v. Sault, etc. Bank, 77 Mich. 199, 18 Am. St. R. 396;
Palmer & Crawford v. Crawford, 55 Ohio St. 423.
286 RIGHTS AXD PRIVILEGES UXDER
ess in cases where, before a constitution providing for jury
trial, equity already had jurisdiction over the subject-
matter, as in cases for restraint and abatement of nuis-
ances, partition, fraud, fraudulent conveyance, mistake,
cancellation of instruments, specific performance, and
many other cases. 84 a Where already, at the adoption
of a constitution, equity exercised jurisdiction in certain
matters, the clause of the Constitution giving jury trial
does not relate to such matters, or deprive equity of juris-
diction therein to act without jury." 85 But these cases
show that where, at the adoption of a constitution giving
jury trial in common law cases, a matter was of such
nature as demanded a common law action with jury trial,
the legislature can not, by giving equity jurisdiction over
it, deprive a party of jury trial. The act giving such ju-
risdiction in equity would be void and inoperative if the
party objected. A late case 86 sustains the proposition
that where the controversy is purely of a legal nature,
there can not be jurisdiction in equity depriving a suitor
of a jury even a statute giving such equity jurisdiction
in such case would be void. The case just cited holds that
as there was a legal remedy for recovery of land, equity
could not assume jurisdiction, and thus deny a jury trial.
This doctrine is found in Loving v. Norfolk & Western
8*Mugler v. Kansas, 123 U. S. 623; Merrill v. Bowlen, 20 R, I.
226; Blanchard v. Rains, 20 Fla. 467; State v. Saunders, 66 N. H.
39.
ss Cecil v. Clark, 44 W. Va. 660, 30 S. E. 216; Davis v. Settle,
43 W. Va. 19, 26 S. E. 557, 563; Barlow v. Daniels, 25 W. Va. 512;
Eilenbeker v. Plymouth Co. 134 U. S. 31; In re Debs, 158 U. S.
564, 594; Pillow v. Improv. Co. 23 S. E. 32, 92 Va. 144; State v.
Doherty, 16 Wash. 382; Barclay v. Barclay, 184 111. 471.
ss Black v. Jackson, 177 U. S. 349, 20 Sup. Ct. 648.
THE FOURTEENTH AMENDMENT. 287
Railroad Company, 87 holding that a statute providing for
the trial of an appeal from a justice involving a purely
common law matter, by a jury of six, when the constitu-
tion simply calls for a jury in trials at common law, was
unconstitutional and void. The case required twelve ju-
rors under the Constitution.
Dismissal of Criminal Appeal by reason of escape of ac-
cused under an order that it be dismissed, unless he ap-
pear and surrender himself to the law, is not without due
process under the Fourteenth Amendment. 88
Irrigation of Arid Land. Water used for this purpose
is used for a public purpose, though all persons do not
have a right to use it, if each land-owner has equal right
to use it on the same terms as others; and therefore a
statute organizing districts for irrigation and directing as-
sessment on lands to pay cost of irrigation does not de-
prive owners of their property without due process. It
is justified under the taxing power. 89
Tax Penalty on Certain Corporations. An act imposing
a penalty of fifty percent increase upon express, telegraph,
telephone and sleeping-car companies for nonpayment of
taxes does not deprive them of property without due proc-
ess of law. 90
Deposit of Money as Condition of Defense against Tax
Deeds. An act requiring this was held to be not due proc-
ess. 91
87 35 S. E. 962, 47 W. Va. .
ss Allen v. State, 166 U. S. 138.
8Fallbrook v. Bradley, 164 U. S. 112.
so Western Union v. State, 165 U. S. 304.
i Bennett v. Davis, 37 Atl. 864 ; Eustis v. City of Henrietta, 39
S. \V. 567.
288 RIGHTS AND PRIVILEGES UNDER
Conviction of Minor Offense Under Indictment for Greater.
If a state court holds that a conviction of a minor of-
fense, as assault and battery, may be had under an indict-
ment for a greater offense, as for murder, there is no
want of due process of law under the Fourteenth Amend-
ment. 92
Condition Precedent to Employment. A statute prohib-
iting a railroad company from requiring, from applicants
for employment, as a condition precedent thereto, that they
shall waive damages for personal injury, and declaring
that such agreements of waiver should be void, was held
to violate the Fourteenth Amendment in depriving the
parties of liberty of contract. 93
Public Easements. "The Fourteenth Amendment does
not override public right existing in the form of servitudes
or easements which are held by the state courts to be valid
under its constitutions and laws. 77 94 The taking of land
for a levee without compensation was held in the case cited
to be justified under the public easement right, and was
due process. The amendment did not destroy this ante-
cedent right..
Unanimous Verdict. The state may authorize a verdict
on less than a unanimous vote. 95 The authorities on
the point conflict. 96 I should have no doubt that if the
state were, by its constitution, to allow a verdict on less
2 Moore v. Missouri, 159 U. S. 673.
s Shaver v. Pa. Company, 71 Fed. 931.
* Eldridge v. Trezevant, 160 U. S. 452.
ssMackey v. Ensperger, 39 Pac. 541, 11 Utah 154; Hess v. White,
24 L. R. A. 277.
Jacksonville, etc. v. Adams, 33 Fla. 608, 24 L. R. A. 272, and
note.
THE FOURTEENTH AMENDMENT. 289
than unanimity, it, would be good, as relating to mere pro-
cedure in state courts, which is a matter left to the states,
and because decisions of the U. S. Supreme Court hold
that a state may authorize a jury to be constituted of less
than twelve; but where a state constitution simply gives
a jury trial, I doubt the power of a legislature to author-
ize a verdict except by the concurrence of all the jurors.
That is what a common law jury trial means, the verdict
being *an essential part of the trial, the fruition of it.
It is implied in the grant of "trial by jury/' a verdict
such as common law demands. Where the state consti-
tution simply calls for a jury trial, a denial of unanimity
would not be due process under either constitution. 97 But
as Walker v. Sauvinet, 92 U. S. 90, holds that the Four-
teenth Amendment confers no jury right in a state court,
the state law on the subject of unanimity governs.
Denial of Criminal Appeal. A state may give or deny
it, or give it on such terms as it chooses, as it pertains to
mere procedure. It is no part of a trial and not essential
to due process of law under the Fourteenth Amendment. 98
Form of Indictment. The state may adopt such form
as it chooses. It pertains to mere procedure. All that the
amendment calls for is fair trial without regard to form
of procedure. The state may dispense even with indict-
ment, and proceed on an information, without the inter-
vention of a grand jury, even in a murder case, as Hur-
vr American Pub. Co. v. Fisher, 166 U. S. 464; Loving v. R. R.
Co. 35 S. E. 962; 47 W. Va. .
Andrews v. Swartz, 156 U. S. 272; McKane v. Dnrston, 153 U.
S. 684.
290 RIGHTS AND PRIVILEGES UNDER
tado v. California" and Bolln v. Nebraska 100 clearly show.
The indictment need not state the degree of murder. It
is for the state court to say whether the indictment is
good, whether the offense with which the party is charged
is one for which there can be a conviction under the in-
dictment, and whether a minor degree of offense can be
found under the indictment. 10
Shooting Dogs by Policemen. A city ordinance authoriz-
ing the shooting of unmuzzled dogs, they being property,
takes away property without due process of law according
to Lynn v. State; 102 but Jenkins v. Ballentine 103 is con-
Ira. The point is questionable. 104 The power of the city
to require muzzling would seem to be due police action,
and the destruction of the animal for a violation of the
ordinance would likely be justifiable on the ground of
public nuisance and danger.
Carrying Weapons. State law forbidding it, and au-
thorizing arrest without warrant for its violation, seems
not to deny the privileges and immunities of the citizens
of the United States contrary to the Fourteenth Amend-
ment. 105
Railroad in Street, liability of City to Lot-Owner. The
city of Richmond gave leave to a railroad company to oc-
cupy a street with its road, and an owner of a lot sued
the city for consequential damages. The railroad was not
99 110 U. S. 516. See Brown v. N. Jersey, 175 U. S. 172.
100176 U. S. 83, 20 Sup. Ct. 287; Fitzpatrick v. U. S. 178 U. S.
304.
101 Bergeman v. Backer, 157 U. S. 655; Moore v. Missouri, 159
U. S. 673.
102 25 S. W. 779.
1038 Utah, 245.
io4Tiedman, Police Power, Sec. 141a.
105 Miller v. Texas, 153 U. S. 535.
TUB FOURTEENTH AMENDMENT. 291
in front of the owner's lot ; but it was claimed that its con-
struction in the street near to the lot resulted in damage.
It was claimed that property was taken without due proc-
ess, contrary to the Fourteenth Amendment. The Vir-
ginia courts having held that where there is no actual
taking of property, but merely consequential damage, no
action lies, the plaintiff was held not entitled to recover,
because there was no taking such as would give damages,
no deprivation of property. 106 It seems from the case
that the city would not be liable anyhow, for the reason
that its action was governmental action.
Judge Must Be Authorized. To make a valid judgment
or decree, the presiding judge must be a judge either de
jure or de facto. If he be merely de facto judge, though
not de jure, his judgment is due process and valid ; but if
he is judge neither de facto nor de jure he has neither
actual authority, nor color of authority, but is what is
called a mere usurper, however pure his intentions may be.
His judgment will not be due process, but what is termed
a judgment coram non judice, before no judge, and is
void. 107 The opinion by Judge Dent in State v. Cross,
just cited, fully discusses the validity of judicial proceed-
ings before a judge de facto.
Unsigned Recognizance. ATI act dispensing with the
signature of recognizances in open court held not to vio-
late the Fourteenth Amendment in its provision requir-
ing due process of law. 108
ice Meyer v. Richmond, 172 U. S. 82.
107 Charles v. City, 98 'Fed. 166; Griffin v. Cunningham, 20 Grat.
31, 42; Ex parte Ward, 173 U. S. 452; State v. Cross, 44 W. Va. 315;
Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121.
i"8McXamara v. People, 55 N. E. 625.
292 RIGHTS AXD PRIVILEGES UNDER
Sale of Fish in Section of City. An act or ordinance pro-
hibiting the sale of fish, buttter or other provisions in a
section of a city where dry goods, clothing or drugs are
sold, was held to contravene the Fourteenth Amend-
ment. 109
Bribery in Election An act prohibiting bribery in elec-
tions and providing for the ousting from office of a suc-
cessful candidate guilty of a violation of the act was held
not to violate the requirement of due process of law. 110
Changes in Rules of Evidence. It is clear law that a
state may uncontrollably declare what shall be evidence
in its courts, and may change the law and rules of evi-
dence, and they will operate 011 existing contracts, if its
action relate only to evidence, without violating the con-
tract clause of the Constitution, although consequentially
this may render some contracts incapable of enforcement.
Such laws savor of the remedy and procedure, and are
within the power of the states, as a general rule. 11 By
a parity of reasoning the same principle applies under
the Fourteenth Amendment. It was not designed to de-
prive the states of its wonted and antecedent powers touch-
ing the law and rules of evidence in its courts deemed
proper by it in the administration of justice. Such
changes in the law of evidence do not destroy vested prop-
erty without due process. There is no vested right in ex-
isting rules of evidence.
Change of Remedy A state may mould and formulate
its legal remedies for the administration of justice in its
109 City v. Netcher (111.), 55 N. E. 707.
no State v. Town (Mo.), 54 S. W. 552.
in Thompson v. Missouri, 171 U. S. 380; Hopt v. Utah, 110 U. S.
574; Mason v. Haile, 12 Wheat. 370.
THE FOURTEENTH AMENDMENT. 293
courts, may make new remedies, or change and modify
existing remedies for the enforcement of existing or fu-
ture contracts, or for the vindication of property or per-
sonal rights, without violating the contract clause of the
Constitution or the Fourteenth Amendment. A party
has no vested right in existing remedies. So he has a fair
and efficient remedy at the hands of the state when he calls
upon it for relief through its courts he has no right to
complain. Xo matter as to its form or name. The state
has a right to say by what process or procedure its courts
shall go, and by what means or vehicles its laws shall be
administered to those who enter its forums. 112 But as
it is settled that the state can not, by repeal or destruction
of a remedy, take away all remedy existing at the date of a
contract for its enforcement, so it can not, without vio-
lating the due process clause of the Fourteenth Amend-
ment, take away all remedy to vindicate life, liberty and
property, by repeal of existing laws of remedy or other-
wise, and leave no remedy to the suitor, or rather, person.
In making such changes of remedy the state must not take
from existing contracts or property rights anything an-
nexed to the old remedy essential to the full and com-
plete enforcement of the contract or property right. The
authorities upon this subject are many and nice and com-
plicated. It does not comport with the purpose of this
work to enter into their various minutiae, details and
lines of distinction. In an early case 113 Chief Justice
112 Railroad v. Hecht, 95 U. S. 168 ; Tennessee v. Sneed, 96 U. S.
69; Brown v. New Jersey, 175 N. S. 172: Leeper v. Texas, 139 U. S.
463: Peninsular Co. v. Union Co. 100 Wis. 488.
v. Crownshields, 4 Wheat. 200.
294 RIGHTS AND PRIVILEGES UNDER
Marshall left the door of state power, in this matter, as to
contracts, too wide open by the language, "The distinction
between the obligation of a contract and the remedy given
by the legislature to enforce that obligation has been taken
at the bar, and exists in the nature of things. Without im-
pairing the obligation of the contract, the remedy may
certainly be modified, as the wisdom of the nation shall
direct. Confinement of the debtor may be a punishment
for not performing his contract, or may be allowed as a
means of inducing him to perform it. But the state may
refuse to inflict this punishment, or may withhold this
means, and leave the contract in full force. Imprison-
ment is no part of the contract, and simply to release the
prisoner does not impair its obligation." Later cases qual-
ify and limit this obiter. 114
Additional Remedy may be Given as to Existing Contracts
or other rights of action, increasing the efficiency of legal
redress, without just ground of complaint by the person
affected. 115
Forms of Procedure The due process clause of the
Fourteenth Amendment does not affect or control what are
the mere forms of procedure in state courts or in their
practice, and its requirement of due process is fully met
and satisfied, provided that in the proceeding, no matter
about its form, by rule or otherwise, the person condemned
has had sufficient notice and adequate opportunity to de-
114 Mason v. Haile, 12 Wheat. 379; Bronson v. Kinsie, 1 How. 315;
McCracken v. Hayward, 2 How. 608; Barings v. Dabney, 19 Wall. 1 ;
Edwards v. Kearzy, 96 U. S. 595; Walker v. Whitehead, 16 Wall.
314; Backus v. Fort Street Co., 169 U. S. 557.
us Danville v. Pace, 25 Grat. 1 ; Hope v. Johnson, 2 Yerg. (Tenn.),
123.
THE FOURTEENTH AMENDMENT. 295
fend. 116 Forms of proceeding in state courts are not con-
trolled by the Fourteenth Amendment. This applies to
civil and criminal cases. 117 Hence, the taking of a case
from a jury and its decision by a court pursuant to a stat-
ute has been held not to be a violation of the Fourteenth
Amendment. 118 This would surely be good by way of
demurrer to evidence, as that was a settled practice before
the amendment; so perhaps the direction of a verdict
would be lawful as tantamount to a demurrer to evidence.
Future Contract and Property Rights. However far as to
efficacy and efficiency for the enforcement of contract or
property rights a new law may detract from or lessen the
old, future contracts, and future-acquired property rights
must submit to the new law, and the law existing at their
birth constitutes a part of them as if incorporated there-
in. 119
Legislation Judicial in Nature. The legislature only can
make laws; the courts construe the laws; the executive
enforces the laws. This is the general statement, because
the Constitution divides the American government into
three great departments, Legislative, Executive, and Ju-
dicial, in order to lodge great powers dangerous powers,
if improperly used in different hands, and thereby les-
sen the danger of their misuse, and to preserve liberty.
"8 Louisville & N. R. R. v. Schmidt, 177 U. S. 230; 20 Sup. Ct.
620.
117 Brown v. New Jersey, 175 U. S. 172; Murphy v. Massachusetts,
177 U. S. p. 163; Bolln v. Nebraska, 176 U. S. 83*.
"8 Apex Trans. Co. v. Garbade, 32 Ore. 582, citing Chicago R. Co.
v. City, 166 U. S. 224, and Lent v. Tillson, 140 U. S. 316.
nSedgwick, Con. & Stat. L. 629; Bronson v. Kinsie, 1 How. 311;
Roberts v. Cocky, 28 Grat. 207; Walker v. Whitehead. 16 Wall-
314.
296 RIGHTS AND PRIVILEGES UNDER
This is one of the basic principles of American republi-
can government found in all our constitutions. The line
of demarkation between the respective functions of these
several departments is in theory, if not in practice, very
marked. The fathers of the republic looked to this as the
polar star and sure guaranty of governmental freedom.
Therefore, if an act of a state legislature is not in its na-
ture purely legislative, but is in its nature judicial, the
legislature has usurped judicial power, and under state
constitutions that act would be void, and if it affect liber-
ty or property, it affects them without due process, in vio-
lation of state constitutions and the Fourteenth Amend-
ment. "The difference between the departments undoubt-
edly is that the legislature makes, the executive executes,
and the judiciary construes the laws," said Chief-Justice
Marshall in Wayman v. Southard, 120 and likewise Chief-
Justice Gibson. 121 In the Virginia Supreme Court is a
very luminous discussion in able opinions by Judges
Christian, Anderson, Staples, Moncure and Joynes upon
the distinction between the different departments and their
functions. 122 Judge Christian said : "No particular defini-
tion of judicial power is given in the constitution; and,
considering the general nature of the instrument, none was
to be expected. But the terms used are still sufficient to
designate, with clearness, that department which should
interpret and administer laws from that department which
should make laws. The former decides upon the legality
of claims and conduct ; the latter makes rules upon which
120 10 Wheat. 46.
121 Greenough v. Greenough, 11 Pa. St. 494.
122 Griffin v. Cunningham, 20 Grat. 31.
THE FOURTEENTH AMENDMENT. 297
those decisions should be founded. The law is applied
1-y the one, and is made by the other. Cooley's Const.
Limitations, 92, 'To declare what the law is, or has been,
is judicial power; to declare what the law shall be, is leg-
islative.' " 123
Under these principles, if a legislature undertakes to
nullify a judgment, reopen a case by granting a new trial,
or directing or authorizing a court to do so, or grants an
appeal, or continuance, or declares a past contract or con-
veyance invalid, or pass any act operative upon liberty,
life or property, which is judicial in its essence, it is con-
trary to the due process demand of the Constitution,
and void. 124 The act simply usurps judicial authority.
123 See Cooley, Con. Lim. 87, 95, 174; Sedgw. Stat. & Const. L.
138 : 146.
124 Griffin v. Cunningham, 20 Grat. 31, 51 ; Wheeling Bridge Case,
18 How. 421: Linkons v. Shafer. 28 Grat. 775; Ratcliffe v. Ander-
son. 31 Grat. 105: McCullough v. Virginia, 172 U. S. 102; Kilburn
v. Thompson, 103 U. IS. 168.
298 RIGHTS AND PRIVILEGES UNDER
Chapter J4
BUSINESS LICENSES.
The power of the states under the head of taxation and,
in some instances, also under the head of police, to im-
pose the obligation on certain persons carrying on cer-
tain trades or callings or business, to obtain a license to
do so, and, where the state chooses, to impose taxation on
the same, is beyond question. The doctrine laid down in
the Georgia Case of Singer Company v. Wright, 1 that
a license tax on some occupations and not on others is no
violation of the Fourteenth Amendment, and does not
deny the equal protection of the law called for by it, and
is not unwarranted class legislation by the state, is sound.
The state may, and does, by direct act for state purposes
impose license taxes on specific occupations; and it may
lawfully delegate to counties and municipal corporations
the power, for their local purposes, to grant such licenses
and impose taxes thereon. To enforce legislation or or-
dinance so providing, the state or the municipal corpora-
tion may prescribe a penalty. This might seem to violate
that provision of the amendment relative to the equal
protection of the laws. Anyone, as a general rule, may
i 25 S. E. R. 249.
TED FOURTEENTH AMENDMENT. 299
exert his capacity and talents, and use his property,
to make a living in any lawful business. This is liberty,
and to grant a license to one, and not to another, to carry
on such business might seem to be an unlawful restric-
tion of this liberty; but this right of liberty, great as it
is, sacred as it is, like the right of even life and property,
must be held subject to the legitimate constitutional ex-
ercise of the police and taxing power of the state. Li-
censes, and taxation thereon, have been everywhere im-
memorially used, and as the Fourteenth Amendment does
not invade the taxing and police power of the states, this
license system is not repugnant to the amendment. 2
Under this principle an ordinance of Chicago author-
izing the issue of license to sell cigarettes on payment
of a tax, and utterly forbidding the sale without a license,
was held to be no violation of the Fourteenth Amendment
in the case of Gundliiig v. Chicago. 3 That case holds
that the delegation of power to the mayor of a city to grant
or refuse such license is no violation of the Fourteenth
Amendment on the score of its being arbitrary legis-
lation or authority; nor is the requirement of a tax of
$100, because "greater than expense of issuing license
and providing regulation." The court said that it was not
like the case of Yick Wo v. Hopkins, where the ordinance
granted arbitrary power, without reference to discretion,
in a legal sense, to grant or refuse, and to refuse because
of rates; but that in the Chicago case the delegation
2Crowley v. Christensen, 137 U. S. 86; License Tax Cases, 5 Wall.
462; Black Intox. Liq. Sec. 46; Burroughs, Taxation, 146; Cooley.
Taxation, 472, 592; Phenix Co. v. State, 118 Ala. 143, 72 Am. St. R.
143.
s 177 U. S. 183, 20 Sup. Ct. 633.
300 RIGHTS AND PRIVILEGES UNDER
of authority to the mayor to grant or refuse the cigarette
license was a legal delegation of discretion and authority
to judge of the personal fitness of the person asking the
license, and to judge of the sufficiency of the bond a
legal discretion to say whether the conditions prescribed
by law had been complied with, not an arbitrary discre-
tion, as the mayor was bound to grant the license if
such condition were complied with. The court said that
this was no denial of the equal protection of the law.
Such provisions are very common, usual and necessary
in cities and towns. The court said it was within the prop-
er exercise of the police power. As said in Crowley v.
Christensen, 4 the possession and enjoyment of all rights
are subject to such reasonable conditions as may be deemed
by the governing authority of the country essential to
the safety, health, peace, good order and morals of the
community. As to the amount of the tax. As held in
Royall v. Virginia, 5 the payment required is a tax on busi-
ness, which the government may demand as a precedent
to the privilege of its transaction, and that government
may fix the price of the privilege.
Federal Licenses are mere taxes, not properly licenses,
as they do not grant the privilege of the business where
that business is prohibited or under restrictions by state
taxation or license laws, and notwithstanding such federal
taxation, the state law must be complied with, otherwise
the necessary functions of the state for existence would
be sapped or crippled materially. Both governments must
possess this power of taxation, and the exercise of it
* 137 U. S. 86.
5116 U. S. 579.
THB FOURTEENTH AMENDMENT. 3()1
by one must not hinder tlie exercise of it by tbe other.
The Act of Congress 6 provides that payment of taxes im-
posed by the internal revenue laws for carrying on any
trade or business shall not be held to exempt any person
from penalty or punishment provided by state law for
carrying on the same, or authorize the commencement or
continuance of such trade or business contrary to the laws
of a state, nor to prohibit a state from placing a tax on
such trade or business. 7 The cases show that the nation
can not grant but only tax licenses.
Rev. Stat. Sec. 3243.
T License Tax Cases, 5 Wall. 462; Peryear v. Commonwealth, 5
Wall. 475 ; U. S. v. Dewitt, 9 Wall. 41 ; Weber v. Va. 103 U. S. 346 ;
Commonwealth v. Sheckles, 78 Va. 36; Plumley v. Mass. 155 U. S.
461.
302 RIGHTS AND PRIVILEGES UNDER
Chapter 15.
TAXATION.
What property can a state tax consistently with due
process of law, consistently with equality before the law,
or rather, consistently with legitimate state authority,
so that we may say the party is not deprived of property
without due process of law, and is not denied the equal
protection of the law, and is not, as a non-resident, brought
under state authority unlawfully ? In Bristol v. Washing-
ton Co. 1 it is held that personal property of a citizen and
resident of one state invested in bonds and mortgages in
another state is subject to taxation in the latter state.
Jurisdiction in the federal court in the case was on the
claim that the allowance by the U. S. Circuit Court of
a claim for taxes against a dead person's estate was a
deprivation of property without due process of law, an
abridgment of the privileges and immunities of a citizen
of the United States, and a denial of the equal protection
of the law, contrary to the provisions of the Fourteenth
Amendment; but all these theories were overruled by the
Supreme Court. The court held that though' generally
the domicile of the owner of personal property is its situs,
1 177 U. S. 133, 20 Sup. Ct. 585. See Pullman Co. v. Pa., 141 U. S.
18. Insurance Company may be taxed for shares of non-residents.
State v. Travelers' Jns Co., 47 Atl. 299.
THti FOURTEENTH AMENDMENT.
yet iiot invariably so, as for purposes of taxation domi-
cile may be one place, actual situs of property another.
The court said that corporeal property is everywhere
conceded to be taxable where it is actually situated. A
credit which can not be regarded as situated in a place
merely because the debtor resides there must usually be
considered as having situs where it is owned, at the domi-
cile of the creditor. The creditor may, however, give it
a business situs elsewhere, as where he places it in the
hands of an agent for collection or renewal with a view
to re-loaning it. The court cited Xew Orleans v. Semple, 2
where taxes were levied on money deposited and on loans,
and it was held that the statute of Louisiana taxing them
was not against the Fourteenth Amendment. Tappan
v. Merchant's Bank 3 was cited as separating national
bank shares from their owner and giving them a situs
of their own for taxation where they actually are. The
same doctrine in Pullman Car Company v. Pennsylvania. 4
The court cited Savings Society v. Multnomah, 5 where a
statute of Oregon taxed the mortgages of a non-resident
mortgagee on real estate situated in Oregon, and it was
held to be warranted by the Fourteenth Amendment.
These late cases assert "The right of every state to tax
all property, real and personal, within its jurisdiction"
as unquestionable, as held in McCullough v. Maryland. 6
This power of a state is carried so far in Coe v. Errol 7
. 2 175 u. S. 309.
3 19 Wall. 490.
* 141 U. S. 22.
s 169 U. S. 427.
4 Wheat. 316, 429.
7 116 U. S. 517.
304 RIGHTS AND PRIVILEGES UNDER
that it was decided that "goods and chattels within a state
are equally taxable whether owned by a citizen of the state
or a citizen of another state, even though the latter be
taxed in his own state for the value of the same goods as
part of his general estate." See also State Railroad
Tax Cases. 8 Bristol v. Washington 9 gives full insight
into the right of a state to tax property actually within it.
It settles that goods and chattels, and stocks and debts
or credits, if actually within a state, though belonging to
a non-resident, may be taxed by it. Stock in banks may be
taxed where the bank is. The national banking act does
this as to stock in them.
In Union Refrigerator Company v. Lynch, 10 a Ken-
tucky corporation, which engaged in furnishing refriger-
ator cars for transportation of freight and had some cars
in use in Utah, was held taxable on those cars in Utah.
The court said that taxation of the ten cars was not uncon-
stitutional on the theory either that they had no situs
in Utah or that such taxation was an interference with
interstate commerce. The case mentioned cited and fol-
lowed the case of Refrigerator Company v. Hall. 11 The
case holds that where a corporation of one state brings
into another state to there use and employ a portion of
its movable personal property, the latter state may tax
it like property of its own citizens, though the items of
such property are not continuously the same, but con-
stantly changing according to exigencies of business, and
8 92 U. S. 575.
177 U S. 133, 20 Sup. Ct. 585.
10 177 U. S. 149; 20 Sup. Ct. 631.
11 174 U. S. 70.
THE FOURTEENTH AMENDMENT. 305
that the tax may be fixed by an appraisement and valua-
tion of the average amount of property habitually used
in the state. The interstate commerce clause of the Con-
stitution would not forbid this taxation, as the court
held. This is also shown by Adams Express Company
v. Ohio. 12
Foreign Corporations must dwell in the place of their
creation and can not migrate to another sovereignty,
their habitat being in the state of their creation, though
a foreign corporation may do business in all states where
its charter allows and the local laws do not forbid. 13 But
it is to be understood that a state may grant or refuse
the privilege to a foreign corporation to do business
in it. or may place it under regulations limiting the right
without taking away liberty or property contrary to the
Fourteenth Amendment, and without denying its equal
protection. A state has the right to impose terms upon
a foreign corporation doing business within it, except
federal business. This is clearly shown by the full dis-
cussion of the subject found in two cases recently de-
cided in the Supreme Court, holding that an act of Texar
forbidding a foreign corporation from doing business
violating state law does not violate the amendment. 14
Taxation of Express Companies. A tax on the property
of express companies within a state, the taxable value of
which is determined with reference to the whole capital,
has been held valid, as no interference with interstate
12 165 U. S. 194. Pullman Co. v. Pa. 141 U. S. 18.
is Railroad v. Koontz, 104 U. S. 12 ; Humphreys v. Newport News
Co. 33 W. Va. 137.
i * Waters-Pierce Oil Co. v. Texas, 177 U. S. 28; N. Y. Life C
v. Craven, 178 U. S. 389 ; 20 Sup. Ct. p. 965.
306 RIGHTS AND PRIVILEGES UNDER
commerce. 15 The case follows those holding that prop-
erty of a corporation in several states might be valued as
a unit for purposes of taxation, taking into consideration
its uses and all elements of value, and a proper propor-
tion of the whole, fairly ascertained, might be taxed by
the state, citing numerous cases.
Condemnation of Property. I have already adverted to
the common doctrine that private property may be taken
for public use upon compensation being paid or secured
to be paid, but that it can not be taken for private use at
all. I have since met with the case of in re Tuthil, 1 6 decid-
ed by the Court of Appeals of New York, holding that an
amendment to the state constitution authorizing the pas-
sage of general laws permitting owners or occupants of
agricultural lands to construct ditches on the lands of
others under proper restrictions, on payment of compen-
sation, violates the Fourteenth Amendment, as depriving
a person of property without due process of law, in that
it authorizes a citizen to take property by the exercise of
the right of eminent domain primarily for his own benefit,
not sanctioned as a public use, either by long acquiescence
or by judicial or legislative precedents. The case is in
this respect notable in that its theory is that as it had been
the law, before the amendment of the state constitution,
that private property could not be taken for private use,
the state could not amend its constitution so as to do so
because of the Fourteenth Amendment. If such is the
true interpretation of that case, the question occurs to me,
Is this case clearly sound law? Does the mere fact that
isSanford v. Poe, 37 U. S. App. 378.
i57 N. E. 303.
THE FOURTEENTH AMENDMENT. 307
before the Fourteenth Amendment the state constitution
restrained the taking of private property for private use
make the amendment disable the state from a change
of its constitution in this respect? Does that amend-
ment disable a state from changing its laws ? Some state
constitutions once required indictment by a grand jury or
trial by twelve jurors; yet state constitutional amend-
ments substituting an information in place of an indict-
ment, or allowing trial by less that twelve jurors, have
been held within the competency of the state, and not in-
consistent with the Fourteenth Amendment. 17 I do not
clearly see that a state can not, by its constitution, take
private property for private use, with compensation, un-
less we are able to assert that general doctrine, which is as-
serted by some, that there be some acts, such as taking one
man's property for another's use, that a state can not au-
thorize even though unrestrained by constitutional pro-
hibition. Judge Story so asserted. 18 Others have made
this broad declaration ; but where the constitution does not
say nay, the courts can not say nay, the state is omnipo-
tent. 19 Where will you find its limit of lawful rein?
Only in some vague doctrine that it is violative of the ab-
stract, fundamental principle of republican govern-
ment. 20
Lunacy Inquisition. Does this proceeding, whatever
its form, having for its direct purpose the establishment
"Hurtado v. California, 110 U. S. 537; Maxwell v. Dow, 176
U. S. 581.
is Wilkinson v. Leland, 2 Pet. 657.
i Holyoke v. Lyman, 15 Wall. 500.
20 State v. Wheeler, 25 Conn. 290; Town v. Pace, 25 Grat 15;
Sedgwick, Stat. & Cons. Law, 173.
308 RIGHTS AND PRIVILEGES UNDER
of a person's lunacy, demand a jury in order to be due
process ? If found to be a lunatic, the person is actually
dep lived of liberty, he is bodily imprisoned, his property
is taken from his control and custody, and thus the result
is as grave to him as a conviction of crime. The hasty
answer to this question, seeing the seriousness of such a
finding, would be naturally that a jury would be indis-
pensable; yet it is not so, unless, as in Missouri, statute
law requires it. Why? Because, as held in Black
Hawk v. Springer, 21 the provision in the constitution for
jury trials for the safety of liberty is meant only for pro-
ceedings for crime. This gives a reasonable solution as to
liberty and deprivation of property. The clause giving
a jury in cases where the amount or value in controversy
is over a certain sum plainly does not apply to the case.
The reason why the Fourteenth Amendment does not
require a jury is that often mentioned in this work,
namely, that wherever before the amendment a certain
procedure was the due and ordinary procedure in the
particular case, it so continues under the Fourteenth
Amendment. A common law inquisition of lunacy, which
was due process long anterior to this amendment, did not
require a jury trial as to the lunacy. 22 A jury in a
state court is not demanded by the IT. S. Constitution. 23
But the authorities conflict on this question. Some hold
the jury essential in lunacy cases. 24
21 58 Iowa, 417.
22 Nobles v. Georgia, 168 U. S. 398 ; Dowdell Case, 61 Am. St. R.
290.
23 Walker v. Sauvinet, 92 U. S. 90.
24 Matter of Dey, 9 N. J. Ch. 181 ; Smith v. People, 65 111. 375.
THE FOURTEENTH AMENDMENT. 3Q9
Anyone may detain temporarily a person actually in-
sane who is dangerous, as a matter of necessity, or of
manifest prudence; but for permanent confinement an
inquisition pursuant to law is necessary, as otherwise it
would be a deprivation of liberty without due process. 25
Vagrants, Drunkards, Great police powers are exerted
against these. They may be lawfully detained and de-
prived of liberty without jury. Such has been a lawful
procedure in such cases time out of mind under the
common law. Statutes generally authorize it, but they
are simply declarative of common law police power. 26
The fact that such procedure antedated constitutional
provision guaranteeing the jury right is the only ade-
q 11 ate explanation of this great power.
Jury to Fix Punishment. This is not a part of the real
trial over the criminal fact. After the criminal fact has
been duly found by a jury, the constitutional demand of
a jury trial has been satisfied, and it does not extend
to the fixing of punishment. 27 Nor is a jury necessary
to determine the degree of murder after confession of
the fact. The confession dispenses with the necessity of
a jury trial to ascertain the criminal fact, the corpus de-
licti. 28
Trading Stamps. An act prohibiting the giving of
trading stamps authorizing a person to receive from an-
other person than the seller some other article than
25 Van Duzen v. Newcomer, 40 Mich. 90.
26 Tiedman, Police Power, Sees. 46, 47.
27 Skelton v. State, 149 Ind. 641.
28 State v. Alray, 67 N. H. 274.
310 RIGHTS AND PRIVILEGES UNDER
that sold violates the liberty clause of the Fourteenth
Amendment. 29
Heating Cars by Stoves. A statute prohibiting it on
railroads over fifty miles long, held not to take property
\vithout due process of law or deny the equal protection
of the law. 30
Taking Railroad Property for Private Use. An order of
a state court requiring a railroad company to surrender
its property as a site for a private elevator, takes that prop-
erty without due process. 31
Petroleum Illumination An act prohibited the use of
pretroleum products for lights emitting a combustible
vapor at lower temperature than 105 degrees except in
certain kind of lamps. It was held that as there were
other lamps as safe, the act was contrary to the Fourteenth
Amendment in abridging the privileges and immuni-
ties of citizens of the United States, and as denying the
equal protection of the laws. 32
Selling Meats in Certain Places An ordinance prohib-
iting those engaged in selling dry goods, clothing, jewelry
and drugs from selling meats, fish, butter, cheese, lard,
vegetable or other provisions, was held not a regulation
of trade to promote health, but an arbitrary prohibition
interfering with property rights, contrary to the Four-
teenth Amendment. 33
2 State v. Dalton (R. I.) (1900), .
so New York, etc. Co. v. People, 165 U. S. 628, 17 Sup. Ct. 418.
si Missouri Pac. Co. v. Nebraska, 164 U. S. 403, 17 Sup. Ct. 130.
32 State v Santee, 82 N. E. 445.
33 City of Chicago v. Netcher, 183 111. 104. Hospital may be pro-
hibited in built-up section of city consistently with the Fourteenth
Amendment, Commonwealth v. Charity Hospital, 47 Atl. 980 (Pa.).
TUB FOURTEENTH AMENDMENT.
Jury Waiver in Misdemeanors, Valid, 34 even in mur-
der case, 35 if statute allow.
Dogs. Unlicensed dogs, though they are property, may
be killed by anyone. A person may kill a dog attacking
him or any member of his family, or anyone in his com-
pany, or any dog which kills fowls or stock. A fine dis-
cussion of this subject will be found in Harris v. Eaton. 36
Ordinance Against Moving Building on or Across a Street
without the consent of the mayor does not deny equal
protection of the law or due process of law. 37
Accused Becoming Witness. If one on trial for crime
waives his constitutional privilege of silence and becomes
a witness, and testifies to an alibi or other fact, he may
be cross-examined as to every fact having any bearing
as to that fact, but not as to new facts about which he did
not testify in his examination-in-chief. 38
Rules of Evidence and Criminal Procedure The state
may change these consistently with the amendment, as
elsewhere stated (p. 292). A strong instance of this
is the late case of Thompson v. Missouri, 39 where an
act allowing a comparison of hand-writing as competent
evidence, which evidence was not competent until that act,
arid not competent at the time of the commission of the of-
fense, was held proper evidence, and not ex post facto,
and not open to the charge that it was contrary to due
s* Brewster v. People, 183 111. 143 ; State v. Grigg, 34 W. Va. 79.
as Hallinger v. Davis, 146 U. S. 314.
3620 R. I. 81.
37 Wilson v. Eureka, 173 U. S. 32, 19 Sup. Ct. 317.
ss Fitzpatrick v. U. S. 178 U. S. 304.
" 171 U. S. 380, 18 Sup. Ct. 922.
312 RIGHTS AND PRIVILEGES UNDER
process. Likewise the case of Hopt v. Utah 40 holding
valid an act making a convict a competent witness, though
not such at the date of the commission of an offense.
Eminent Domain Jury not Essential. As already
stated (p. 163), a jury is not essential in this proceeding
to constitute due process unless the state law require it.
The compensation may be fixed by commissioners, or a
board, with right to review by the courts, which always
exists. It is no denial of due process that the statute
makes the finding by the jury or commissioners final,
leaving to the courts only the question whether any erron-
eous basis was adopted in the appraisal or error in the
proceeding. 41
Driving Cattle over Road Bank. An act making any-
one driving cattle over a highway constructed on a hill-
side liable to damage does not deprive him of property
without due proces of law, or deprive him of the equal pro-
tection of the laws. 42
Fishing The state has power to make regulations
to preserve fish in its waters from destruction, as elsewhere
shown (p. 220). It may even regulate it on one's own
land. 43
Fishing Confined to State Citizens An act of Virginia
limited the right to take oysters and fish from its waters
to its own people. It was attacked as an infraction of the
Fourteenth Amendment as denying the people of other
40 110 U. S. 574.
41 Long Island Co. v. Brooklyn, 166 U. S. 685, 17 Sup. Ct. 718;
Backus v. Fort Street Depot Co. 169 U. S. 557, 18 Sup. Ct. 445;
Gilmer v. Hunnicutt, 35 S. E. 521.
42 Jones v. Brim, 165 U. S.. 180, 17 Sup. Ct. 282.
43 State v. Thereault, 70 Vt. 617, State v. Dow, 47 Atl. 734.
THE FOURTEENTH AMENDMENT. 313
states the privileges of citizens of the United States and
of the equal protection of the laws ; but the Supreme Court
held that ths act did not infringe the Fourteenth Amend-
ment, that it was not a privilege of a citizen of the United
States to fish in the waters of Virginia flowing from his
federal citizenship, and that the state had the right to
limit the use of its public property to its own people. 44
Usury. Curative Act An act taking away the defense
of usury has been held valid on the theory that it does not
change the agreement or contract, but only removes a
bar to its enforcement. The case holds the building as-
sociation act dispensing with the plea of usury valid. 45
Curative Act. An act legalizing city bonds held valid. 46
Tax Deed, Assault on. A statute limiting the time
within which an attack might be made upon a tax deed
held to be a statute of limitations and valid, as to the
Fourteenth Amendment. 47
Foreign Corporation, Mortgage by. A state act pro-
hibited foreign corporations from taking mortgages for
loans, and a later act made them valid, and it was held
that the second act did not impair the obligation of the con-
tract of a mortgage taken between the time of the two
acts, and did not deprive of property without due process
of law contrary to the Fourteenth Amendment. 48
Roads, Taking Land for. An act directing supervi-
sors of two adjoining towns to lay out a new road or alter
"McCready v. Virginia, 94 U. S. 391.
Iowa Savings, etc. v. Heidt, 77 N. W. 1050 ; Danville v. Pace,
25 Grat. 1.
*Schenck v. City, 152 Ind. 204.
impolicy and unjustness of state law, and the equality it
prescribes is not for persons merely as such, but according
to their relations." He then referred to the power of the
legislature to tax one man more than another, under cir-
cumstances in language already quoted on page 321. He
said that these principles had been affirmed in later cases
than those he referred to, and that a classification based on
difference between fire insurance and other insurance had
been sustained ; and also a difference between railroad and
other corporations, citing Orient Insurance Company v.
338 RIGHTS AND PRIVILEGES UNDER
Daggs, 45 and Tullis v. Lake Erie Company. 46 He referred
to the case of Atchison, Topeka and Santa Fe R. R. Com-
pany v. Mathews, 47 holding that by reason of the great
peril from fires from locomotives on railroads, it was in the
power of a state to impose on them an attorney's fee and
not impose it on an unsuccessful plaintiff. He also re-
ferred to Justice Brewer's statement in Atchison, Topeka
Sante Fe R. R. v. Mathews 48 that "it is of the essence
of classification that upon the class are cast duties and
burdens different from those resting upon the general
public. Thus when the legislature imposes upon a rail-
road corporation a double liability for stock killed by
trains it says, in effect, that if suit be brought for stock
killed by trains against a railroad corporation it must enter
court under conditions different from those resting on or-
dinary suitors. If beaten, it must pay, not only the dam-
age which it has done, but twice that amount. If it suc-
ceed, it recovers nothing. On the other hand, if it should
sue an individual for the destruction of its live stock it
could under no circumstances recover any more than the
value of that stock. So it may be said in matter of liabil-
ity in case of litigation it is not placed on an equality with
other corporations and individuals ; yet this court has un-
animously said that this differentiation of liability, this
inequality of rights in the courts, is of no significance upon
the question of constitutionality. Indeed, the very idea of
classification is that of inequality ; so that it goes without
45 172 U. S. 557.
46 175 U. S. 348.
47174 U. S. 96.
48 174 U. S. 106.
THE FOURTEENTH AMENDMENT. 339
saying that the fact of inequality in no manner determines
the matter of constitutionality."
In the case in which Justice McKenna was writing he
said that the distinction between tracts of agricultural
lands in a certain relation to cities and land used for other
purposes in such relation was material. He regarded
the distinction as justified by the principle of the cases
which he cited, saying: "That principle leaves to the state
the adaptation of its laws to its conditions. The growth of
cities is inevitable, and in providing for their expansion it
may be the judgment of an agricultural state that they
should find a limit in land actually used for agriculture.
Such use, it could be taken for granted, would be only tem-
porary. Other uses, certainly those to which the plaintiff
puts its lands, can receive all benefits of the growth of a
city and not be moved to submit to the burdens. Besides,
such uses, or manufacturing uses adjacent to a city, may,
for its order and health, need control. Affecting it dif-
ferently from what farming uses do, may justify, if not
require, their inclusion in the municipal jurisdiction. We
think that within the latitude which local government
must be allowed the distinction is not arbitrary, and in-
fringes no provision of the Constitution of the United
States." 49
Taxation. If all in like conditions are treated alike
there is no violation of the equality clause of the Four-
teenth Amendment, as held in Bell's Gap Railroad Com-
pany v. Pennsylvania, 50 the court saying that the amend-
ment does not enforce an iron rule of taxation.
Clark v. Kansas City, 176 U. S. 114. See Amer. Sugar R. Co.
v. Louisiana, 179 U. S. 89, 21 Sup. Ct. 43.
so 134 U. S. 232.
310 RIGHTS AND PRIVILEGES UNDER
Corporation Taxation. Considering that corporations
have privileges and franchises from the state which indi-
viduals do not possess, they may be taxed differently from
individuals and by a different process. Taxation on a tele-
graph company on so much of its line as is in the state is
constitutional. 51
In Home Insurance Company v. New York 52 a tax on
corporate franchises in the state or of a corporation of an-
other state doing business in the state, measured by year-
ly dividends, was held to be valid. The court said : "But
the amendment does not prevent the classification of prop-
erty for taxation, subjecting ' one kind to one rate and an-
other to a different rate, distinguishing between licenses,
franchises and privileges, and visible tangible property
and between real and personal property. Nor does the
amendment prohibit special legislation. Indeed, the great-
er part of legislation is special, either in the extent to
which it operates or the objects sought to be obtained.
And when such legislation applies to artificial bodies, it
is no objection if all such bodies are treated alike under
similar circumstances and conditions in respect to the priv-
ileges conferred upon them and the liability to which they
are subjected."
Thus the cases clearly establish a difference between in-
dividuals and corporations in respect to taxation.
Inheritance or Legacy Tax This taxation has had long
and widespread existence. It is not a property tax, but
si Telegraph Co. v. Mass. 125 U. S. 530; Butler v. Eaton, 141
U. S. 240; State Railroad Tax Cases, 92 U. S. 575; Railroad v.
Backus, 154 U. S. 439.
6 - 134 U. S. 594. Also W. U. T. Co. v. Indiana, 165 U. S. 304.
THE FOURTEENTH AMENDMENT. 34!
a premium or tax on the privilege of transmitting es-
tate. 53 An Illinois act taxes inheritances by a progressive
process, that is, certain rate on a certain amount of inher-
itance, a greater rate on a greater amount. It was claimed
to violate the Fourteenth Amendment, in denying equal-
ity before the law, unjustly classifying and placing un-
equal burdens on persons inheriting unequal values; but
the Supreme Court upheld the act. 54 The subject is fully
considered in that case. Not being a tax on property,
different rates on different sums of inheritance or legacy
would not violate equality or uniformity. It is a tax on
a privilege, and under the authorities may be thus classi-
fied, and the state may impose conditions, just as it can
absolutely, under police power, control, regulate and con-
dition the privilege to make wills of property or its de-
scent. Like license tax, the state may classify, taxing
one business more than another, according to amount
of business done. If considered a property tax, such dif-
ferent rate would be unconstitutional, I would think, be-
cause a man can not be taxed on property of one thousand
dollars value more ratably than one owning one hundred
dollars. The power to impose such progressive discrimi-
nating taxation has been criticised as socialistic and spolia-
tnry, taxing the wealthy, because wealthy, class legisla-
tion denying equality before the law, and thus calculated
to level property and force communism in it ; but under the
decisions it is within the power of the states to thus tax
without violating the Fourteenth Amendment. Very re-
53 School field v. City, 78 Va. 366; Magoun v. Illinois Trust etc.
170 U. S. 288.
s* Magoun v. Illinois Trust, etc. 170 U. S. 288.
342 RIGHTS AND PRIVILEGES UNDER
cent decisions sustain it. 55 Many political economists
have advocated this graduated or progressive system of
taxation on incomes, inheritances and ownership of prop-
erty according to amount; many oppose it. Likely, the
Fourteenth Amendment would forbid discrimination in
taxation on purely property valuation. As to incomes, the
federal government may, by apportionment among the
states, tax incomes. A state may do so, unless its consti-
tution require equality and uniformity of taxation. The
state may tax United States bonds and other securities
going to legatees or next of kin, because such legacy or in-
heritance tax is not a property tax, but a privilege to
make a will or pass property under intestacy. 56
Freight Charge, Long and Short Haul. An act regulat-
ing rates on railroads as to long and short haul, prohibit-
ing greater rate for the short than the long haul, held not
to be contrary to the Fourteenth Amendment. 57
If all in like condition are regulated alike, the amend-
ment is not violated. 58
Partial Police. Though the amendment does not im-
pair the legitimate and reasonable exercise of the police
power by the states, -as has been- fnrly shows (p. 168), yet
it is equally clear that an ordinance must not be different
as to different persons engaged in the same employment
under like conditions, else it will violate the equality clause
of the amendment. 59
55pl um mer v. Coler, 178 U. S. 115, 20 Sup. Ct. R. 829; Knowl-
ton v. Moore, 178 U. S. 41, 20 Sup. Ct. R.. 747.
5Plummer v. Coler, 20 Sup. Ct. R. 829, 178 U. S. 115; Murdock
v. Ward, 178 U. S. 139, 20 Sup. Ct. 775; U. S. v. Perkins, 163 U. S.
625.
ST Chicago etc. Co. v. Minnesota, 134 U. S. 418.
ss Railroad Co. v. Mackey, 127 U. S. 205.
59 Soon King v. Crowley, 113 U. S. 703.
THE FOURTEENTH AMENDMENT. 343
Railroad Liability for Negligence. An act making rail-
roads liable for damages for injury to a passenger, except
by reason of his own negligence, though it makes the com-
pany liable absolutely, irrespective of the question whether
it is guilty of negligence or not, has been held not to deny
the equal protection of the law, and valid. 60
Life Insurance Company. An act providing that it must
pay loss within the time required by the policy, or pay
twelve percent damages and attorney's fee, held no de-
nal of equal protection of the law, contrary to the Four-
teenth Amendment. 61
Jury Challenges. A statute giving to the state in cities
of certain population more challenges to jurors than were
accorded to the state elsewhere was held not to deny the
equal protection of the law. 62
State Courts and Procedure. State courts may be ar-
ranged, jurisdiction fixed, their procedure fixed, the ef-
fect of their judgments declared, and one law made opera-
tive in one section of the state, another in another section,
without its being considered denial of equal protection un-
der the amendment, if the legislation touching the same
be applicable to all alike under like circumstances. 63
Prohibition of Contract. It may not be amiss, as perti-
nent to the equality clause of the Fourteenth Amendment,
to refer to two cases elsewhere discussed (p. 201), State v.
Goodwill 64 and State v. Fire Creek Company, 65 holding
eo Clark v. Russell (C. C. A.), 97 Fed. 900.
61 Life Insurance Co. v. Yoakum, 98 Fed. 251 (C. C. A.).
62 Hays v. Missouri, 120 U. S. 68.
63 Missouri v. Lewis, 101 U. S. 22.
e* 33 W. Va. 179, 25 Am. St. R. 863.
533 W. Va. 188, 25 Am. St. R. 891.
344 RIGHTS AND PRIVILEGES UNDER
void, as class legislation, statutes prohibiting owners of
coal-mines and manufacturers from issuing orders on
stores in payment of wages, and prohibiting them from
selling goods to employees at greater percent of profit
than in sales to others. The case of State v. Peel Splint
Company, 66 as published, contains contrary doctrine in
the syllabus ; but that syllabus is no law in West Virginia,
and the books are in error in publishing the case as law in
West Virginia, because the court, composed of four judges,
was equally divided, and the case furnishes no law in West
Virginia, and does not at all overrule the solid doctrine
propounded in the two cases of anterior date just cited.
The acts involved in the Peel Splint Company Case pro-
hibited corporations or persons from paying wages in or-
ders on stores or scrip not redeemable in money, and re-
quired coal to be weighed to ascertain wages for its dig-
ging before the coal should be screened. Two of the four
judges held the legislation to be unconstitutional as class
legislation; two held the legislation valid. It should be
observed that the enactment passed on in the earlier cases
was limited to coal operators, while that passed on in the
Peel Splint Case applied to all persons. The author in
the latter case was of opinion that this distinction did
not relieve the legislation involved in it from the ob-
jection that it deprived of liberty of contract and action.
Validating Void Contracts. A statute making good and
valid prior loans by foreign corporations does not deprive
of property without due process, or impair a contract con-
36 W. Va. 802, 15 S. E. 1000.
THE FOURTEENTH AMENDMENT. 345
trary to the federal Constitution or deny equal protec-
tion. 67
A corporation pleaded that its contract was ultra vires
and void, and it obtained judgment in its favor upon that
defense. An act of the legislature was then passed vali-
dating that contract. It was held that the act did not de-
prive the corporation of its property without due process
or deny it equal protection of the law, and that the act
was valid, constitutional legislation in the exercise of
lawful legislative power over corporations. 68 The cases
seem to hold that the legislature has more power to legal-
ize contracts of corporations by retroactive acts than it has
in the case of contracts by private individuals. If the
question were res Integra, it might be open to doubt.
There is also a general doctrine found in the cases that the
legislature may, by retroactive act, cure defects and irregu-
larities in deeds, contracts, etc., which it might, by leg-
islation in advance, dispense with. The law as to cura-
tive statutes found in the books lays down this propo-
sition.
TTsury by Buildiig Associations. Upon the theory that
such associations are mutual associations, for mutual bene-
fit of members, quasi partnerships, so that payment of
the interest and premiums, though exceeding in the run-
ning time of the loan lawful interest, redound to the in-
terest of the party himself, many decisions go to exempt
them from the defense of usury ; 69 but I think it may be
T Gross v. U. S. Mortgage Co. 108 U. S. 477.
s Steele Company v. Erskine (C. C. A.), 98 Fed. 215.
Reeve v. Ladies' Association, 56 Ark. 335 ; Barker v. Bigelow,
15 Gray 130.
346 RIGHTS AND PRIVILEGES UNDER
stated that but for the statutes found in most states
exempting building associations from the defense of
usury, they would be subject to it. 70 These statutes have
generally been held constitutional, and I suppose there
can be little doubt of this, considerad alone under the
state constitutions. I have not, however, seen any case
where it was considered whether the acts referred to deny
to borrowers the equal protection of the law contrary to
the Fourteenth Amendment. The cases consider the mat-
ter under the prohibition found in some state constitu-
tions against special or local as distinguished from general
laws a different question from that suggested under the
Fourteenth Amendment. One case does consider it under
a state constitution prohibiting acts granting "special or
exclusive privilege or franchise." 71 That clause more near-
ly resembles the question upon which I have doubts, and
the case held the exemption from the defense of usury
valid. That case involved the question whether a special
privilege could be granted. The question which I put is,
Does this exemption, by depriving a certain class of bor-
rowers of the protection afforded by the law against usury,
leaving to other borrowers its benefit, deprive them of the
equal protection of the law, contrary to the Fourteenth
Amendment? Man has always enjoyed the protection
of the law forbidding usury ever since Moses proclaimed
the law of God, "If thy brother be waxen poor and fallen
in decay with thee, then thou shalt relieve ; yea though he
be a stranger, or sojourner, that he may live with thee.
v. Wheeling, etc. 19 W. Va. 676.
7i Vermont, etc. Co. v. Whitehead, 2 N. Dak. 82, 35 Am. & Eng,
Corp. Cas. 250.
THE FOURTEENTH AMENDMENT. 347
Take thou no usury of him, or increase, but fear thy
God, that thy brother may live with thee. Thou shalt
not give him thy money upon usury, nor lend him thy
victuals for increase." The Church in the Middle Ages
utterly condemned all usury, even the slightest interest.
Usury once meant any percent, all percent of increase;
now it means interest above legal rate. This prohi-
bition against usury continues to be law today. These
usury laws have in all ages been deemed by lawgivers as
wise and salutary for the millions of people, and those
who enjoy them today number millions. Those laws
were made to protect the needy, the unfortunate, the fail-
ing, the poor, from oppressions and undue exaction, to
save the very homes of the people, to secure their peace
and happiness. They are laws made for the public weal,
for the protection of which laws all alike may call. They
are not like laws classifying different persons engaged
in differing business for purposes of taxation and police,
but are laws applicable to millions. Those who today do
not need them may sadly need them to-morrow. Those
laws can not be said to apply only to a class specially
circumstanced. They are for all. If this can be said of
any laws, this protective feature, it can be said surely of
the anti-usury laws. The statutes exempting building
associations from the application of the law against
usury not only favor these building associations over
all other lending corporations and persons, thus being
class legislation in favor of one class, but, what is
more serious, they take from a certain class of
debtors the equal protection of laws made for all in debt,
leaving their benefit to all other debtors. Is this classi-
348 RIGHTS AND PRIVILEGES UNDER
fication justifiable as one called for by any public need or
policy? Is it to meet a public general want? Was it
made that the public at large might be benefited? I do
not see it plainly in that light. If these questions can
not be answered in the affirmative, the Fourteenth Amend-
ment, by its equality clause, must declare these statutes
releasing building associations from the defense of usury
void. I have been lately led to doubt them, under this
equality clause of that amendment. The Maryland court
held that the legislature can not allow a certain class of
corporations to loan at a higher rate of interest than
others. 72
Weekly Payment of Wages Legislation requiring rail-
road corporations to pay wages weekly, making them a
lien, with attorney's fee, was held not violative of the
equal protection clause of the Fourteenth Amendment, and
not to take property without due process of law. 73
State Court Decisions. When one has had a fair trial
in a state court, and his rights are measured by laws alike
applicable for all, though he be deprived of property by
adverse result of the trial, the proceeding is due process
under the Fourteenth Amendment. The fact that a rail-
road is by the judgment held liable for damages for cut-
ting off access to an adjoining lot to and from the street,
whereas the owner is denied damages for injury from
the construction of a railroad by the company on its
own ground on the other side of the street, is no denial
72 Citizens' Security Co. v. Wheeler, 48 Md. 455.
73 Skinner v. Garnett Co. 96 Fed. 735.
TEE FOURTEENTH AMENDMENT. 349
of the equal protection of the law, contrary to the Four-
teenth Amendment 74
One convicted of murder in a state court was sentenced,
and the judgment was affirmed by the state Supreme
Court, that court fixing another day for the execution of
the sentence. After the term he asked to amend the record
to show that he was not present in the appellate court
when the affirmance of his sentence was made, but the
court refused to amend, because the term had closed. The
law of the state thus announced by its court was appli-
cable to all alike, and its enforcement against the ac-
cused was held no denial of the equal protection of the
laws. 75
Taxation of Rolling Stock. An act distributing for tax-
ation the rolling stock of railroads among several coun-
ties on their lines and there taxing it, instead of taxing
it at the place of location of the chief office of the rail-
roads, as in case of other corporations and individuals,
was held no denial of equal protection contrary to the
Fourteenth Amendment. 76
Foreign Corporations not Within the Jurisdiction of the
State, not doing business there, may be denied participa-
tion as a creditor of a corporation of that state in its as-
sets, and preference may be given to citizens of that state
in such assets of such insolvent corporation. The foreign
corporation is, as a corporation, not a citizen of the state
incorporating it, so as to claim the same right given by
?4Marchant v. Pennsylvania Co. 153 U. S. 380; Central L. Co.
v. Laidley, 159 U. S. 103.
"Fielden v. Illinois, 143 U. S. 452.
"Columbus, etc. Co. v. Wright, 151 U. S. 470.
350 RIGHTS AND PRIVILEGES UNDER
the state to its own citizens under Article 4 of the fed-
eral Constitution, and though a corporation is a "person"
under the Fourteenth Amendment, yet it is not "within
the jurisdiction" of the state so as to be protected by the
amendment. This was held to be no denial of equal pro-
tection of the laws. 77 But the case cited holds that such
preference of home creditors would not be valid against
non-resident natural persons, but would be against said
Article 4.
Bail Arrest. One who is bail for another may arrest a
prisoner in or out of the state, and it is due process under
the Fourteenth Amendment. This was a common law
right or power before the amendment. 78
Innkeepers' Lien Statute giving it does not take prop-
erty without due process of law, or deny equal protection,
as it does not take the property, but only fixes a lien on
it, and was so, though the act did not say how the lien
should be enforced. 79 I would remark, as another reason
for this decision, that the lien was an old common law
lien before the amendment, and that its adoption could
not impair such lien. The case says that samples owned
by a merchant, in the hands of his traveling agent are
liable to such lien.
Eight-Hour Law. A statute provided that eight hours
per day should be the limit for work in underground
mines. A very notable case arose under this statute,
Holden v. Hardy. 80 The statute was assailed as taking
77 Blake v. McClung, 172 U. S. 239; Sully v. Amer. Nat. Bank,
178 U. S. 289, 20 Sup. Ct. 935.
78 In re Von Der Ahe, 85 Fed. 959.
79 Brown Co. v. Hunt (la.), 39 L. R. A. 291.
so Holden v. Hardy, 169 U. S. 366.
TED FOURTEENTH AMENDMENT. 351
property without due process of law and denying equal
protection of the law and liberty of contract ; but the court
held that the act was not obnoxious to such objections.
Use of Property on Certain Streets. An ordinance pro-
hibiting the use of property for any business on certain
boulevards was held to be violative of the Fourteenth
Amendment, as taking property without due process of
law, as the use of property should be regarded as property
itself, and not to be arbitrarily taken away, and that the
ordinance denied equal protection. 81
Anti-trust Law. An act prohibiting combinations in
restraint of trade, "except agricultural products and live
stock while in the hands of the producer," was held void
as denying the equal protection of the law. 82
Unequal Tolls An act reducing tolls on a particular
turnpike below other turnpikes under general law was held
to be not necessarily a denial of the equal protection of
the laws. 83
Unequal Taxation. The taxing power is very great in
a state, as elsewhere shown (p. 148) ; but it must not be
legally unequal and partial. Any assessment of taxes
that gives the party any means of contesting its validity
or amount, either before the amount is determined or to
contest subsequent proceedings for collection, is due proc-
ess in such case, and not unequal. 84
"To bring state taxation within the provision relating
to due process of law the case must be so clearly an ille-
si St. Louis v. Dorr, 41 S. W. 1094.
82 In re Grice, 79 Fed. 627.
83 Covington v. Sandford, 164 U. S. 578, 17 Sup. Ct. 198.
8*Winona, etc. v. Minnesota, 159 U. S. 537.
352 RIGHTS AND PRIVILEGES UNDER
gal encroachment upon private rights that it is really spoli-
ation." 85
But such taxation must make all equal before the law,
that is, the law of taxation. It can not discriminate be-
tween residents and non-residents, taxing either more than
the other, or on subjects not taxed to the other. 86
It is clear that a state or a municipal corporation by
state authority may impose different rates of taxation
on different subjects, without violating the equality clause
of the Fourteenth Amendment. It has the power of clas-
sification, if the classification applies to all in like cir-
cumstances. 87 But we must be careful to see whether the
state constitution limits this power of classification. Many
constitutions, like that of West Virginia, say that "tax-
ation shall be equal and uniform throughout the state, and
all property shall be taxed according to its value, to be
ascertained as directed by law." This requires the same
rate on all property. This is the just rule of equal and
uniform taxation, and where uniformity is required, a
departure from it renders the tax void, it being a denial
of equality before the law of public burdens. 88 Where
there is no such restriction m state constitutions, the leg-
islature is not bound by this uniformity doctrine; it can
tax one kind of property at one rate, another at another
rate, or select particular subjects only for taxation. But
ss Henderson Bridge Co. v. City, 173 U. S. 592, 19 Sup. Ct. 553.
se Ward v. Maryland, 12 Wall. 418; Crandall v. Nevada, 6 Wall.
35.
87 Bridge Company v. County, 41 W. Va. 658 ; Cooley, Con. Lim.
514; Note 3 Am. & Eng. Corp. Cas. 469; Reyman Co. v. Brister,
179 U. S. 445, 21 Sup. Ct. 201.
ss New Orleans v. Kaufman, 29 La. Ann. 283 ; Zanesville v. Rich-
ards, 5 Ohio St. 589; 3 Am. & Eng. Corp. Cas. 469, note.
THE FOURTEENTH AMENDMENT. 353
we must remember that even where there is a requirement
of equal and imifrom taxation according to value of prop-
erty, it does not apply to licenses or permits to carry on
callings. One of these may be taxed one price, another,
another; one town may tax the same calling one price,
another town another price. 89
Telegraph, Telephone and Express Companies. A statute
providing that taxable value of the property of tele-
graph, telephone and express companies shall be deter-
mined with reference to the value of the entire capital
does not deny the companies the equal protection of the
law, nor is it open to the objection that such taxation is
upon property out of a state. 90
An act giving a bank right to elect to collect from
stockholders and pay a state tax of eight mills on the dol-
lar par value, instead of four mills on the dollar actual
value, does not deny equal protection of the law. 91
Taxation Exemption. It is the unquestionable power
of a state to classify property and callings for taxation,
and this carries along with it the power to exempt what it
chooses. 92 But here again we must look to see, so far
as state law is concerned, whether there is a provision like
that in the West Virginia constitution quoted above, re-
89 Slaughter v. Com. 13 Grat. 767 and citations in 3 Am. & Eng.
Corp. Cas. 468; Cooley, Con. Lim. 496; Phenix Co. v. State, 72
Am. St. R. 143.
o Sandford v. Poe, 37 U. S. App. 378 ; Adams Express v. Ohio,
165 U. S. 194.
i Merchants' Bank v. Commonwealth, 167 U. S. 461.
92 Rice v. Railroad, 1 Black 358; Charles Bridge v. Warren, etc.
11 Pet. 420; Providence Bank v. Billings, 4 Pet. 514; Jefferson
Bank v. Skelly. 1 Black 436; Town of Danville v. Shelton, 76 Va.
325: 3 Am. & Eng. Corp. Cas. 458; 18 Am. & Eng. Corp. Cas. 25,
469; Cooley, Con. Lim. 514: Williamson v. Massey, 33 Grat. 237.
354 RIGHTS AND PRIVILEGES UNDER
quiring uniformity of taxation and all property to be
taxed; for if there is, none can be exempted, as shown
by the able opinion of Judge Johnson in the case of Ches-
apeake & Ohio K. E. Co. v. Miller, Auditor. 9 ^
The exemption must be clearly expressed. Every pre-
sumption is against it. 94
A municipal corporation can make no exemption from
taxation of property which is made taxable by it by state
law, as the municipal corporation can only do those things
which state law allows, and can not do things forbidden
by such law. 95
Delegation of Taxing Power. A state legislature may
delegate to municipal corporations, counties, school dis-
tricts, townships and other subordinate agencies the pow-
er of taxation consistently with due process and the equal-
ity clause of the Fourteenth Amendment. 96
Irregular Taxation can be cured by act operating retro-
spectively. The legislature could have authorized the tax-
ation in such mode in advance, and hence can cure it
by retrospective act. 97
Municipal Taxation. The grant of power to a munici-
pality is not a contract conferring a vested right on the
s 19 W. Va. 408.
94 Railway v. Lafton, 96 U. S. 564; Erie Company v. Pa. 21 Wall.
498; People v. City, 18 Am. & Eng. Corp. Cas. 28; Lancaster v.
Clayton, 18 Am. & Eng. Corp. Cas. 31 and full n. 35.
95 Whiting v. West Point (Va.), 38 Am. & Eng. Corp. Cas. 206.
98 Martin v. School District (S. C.), 35 S. E. 517; State v. Smith,
18 Am. & Eng. Corp. Cas. 36; City of Richmond v. Richmond & D.
Co. 21 Grat. 604.
97 Thompson v. Lee Co. 3 Wall. 327 : Astor v. New York, 62 N. Y.
580; Butler v. Toledo, 5 Ohio St. 225.
THE FOURTEENTH AMENDMENT. 355
municipality, and the legislature may withdraw or modify
the power as it chooses. 08
This doctrine results from the principle that state power
over municipal corporations and other subdivisions of
its territory is well-nigh unlimited, unless the constitu-
tion of the state restrains the legislative powers. There-
fore, the legislature can make them, amend them, unmake
or dissolve them ; it can validate their void contracts, and
thus put burdens 011 them which but for such legislation
they would be free from." Under this principle such mu-
nicipal corporations can not say that they are deprived
of property without due process, or denied the equal
protection of the law, contrary to the Fourteenth Amend-
ment. But we must look to the state constitution; for it
may give rights to these municipal corporations, may give
them existence and attributes, which the legislature can
not destroy.
Habitual Criminals Heavier Punishment. Statutes im-
posing heavier punishment upon convicts upon second con-
viction of crime are neither ex post facto nor do they
deny the equal protection of the laws, as they are reason-
able classifications of people for governmental administra-
tion, and operate on all alike so situated. 100
Preferred Liens. A Virginia statute, giving a lien to
persons furnishing supplies to transportation, mining and
manufacturing companies, in preference to other liens,
8 Williamson v. State, 130 U. S. 189; 32 Am. & Corp. Cas. 663;
City of Richmond v. Richmond & D. Co. 21 Grat. 604.
9 Williamson v. Eggleson, 170 U. S. 304; Kelly v. Pittsburg, 104
U. S. 78, 81; Steele Co. v. Erskine (C. C. A.), 98 Fed. 215.
100 McDonald v. Commonwealth, 173 Mass. 322; Moore v. Mis-
souri, 159 U. S. 673.
356 RIGHTS AND PRIVILEGES UNDER
was assaulted as contrary to the Fourteenth Amend-
ment, as special cla^s legislation; but the act was held
valid. 101 The court said that the act was special legis-
lation, but applied to all in like condition, and was justi-
fiable under the police power.
Payment in Advance for Labor. A South Carolina act
made it a misdemeanor to receive pay or supplies for
labor on farms in advance, and then fail to perform
such labor. The act was held not discriminative and un-
equal, but valid. 102 But an act in the same state made it
an indictable offense for either party to violate a con-
tract between the land-holder and employee for labor; it
fixed a punishment for the land-holder, but contained no
fixed punishment for the laborer. This act was held un-
constitutional for such discrimination. 1 - a
Separate Cars for Colored Persons We have elsewhere
seen that state law requiring separate cars for colored
persons does not violate the Fourteenth Amend-
ment as against the colored people. But does it as against
the railroad companies ? Does it deny them equal pro-
tection of the law? It has been held that it does not. 104
Women Jurors. Does the exclusion of women from
juries violate the equality clause of the Fourteenth
Amendment? We have seen, in referring to the case of
Strauder v. West Virginia, 105 how vital the Supreme
Court of the United States has considered the right of the
citizen to sit upon juries. State law excluding colored
101 Virginia Devel. Co. v. Croz. I. Co. 90 Va. 126.
instate v. Chapman, 34 S. E. 061.
los State v. Williams. 10 S. E. 876.
104 Chesapeake & Ohio R. Co. v. Com. (Ky.), 51 S. W. R. 160, 179
U. S. 388.
105 See page 326 (of this book).
THt) JfVUKTtiJmTH AMENDMENT. 357
persons from jury service was held to violate the Four-
teenth Amendment 106 It rendered a conviction of mur-
der void. Is a verdict against a woman void because of
the state law excluding women from juries ? At common
law women had no right to sit on juries, and juries did not
include them, except upon a writ de inspiciendo ventre,
a jury to test pregnancy. 107 Their exclusion does not vio-
late Amendment Fourteen on a trial of a man, but it was
not decided as to a trial of a woman.
Emigrant Agents' Tax. An act taxing emigrant agents
is not a violation of the privileges and immunities of a
citizen of the United States under the Fourteenth Amend-
ment, nor does it deny them the equal protection of the
laws. 108
Time for Appeal from Railroad Board. An. act fixing
time for appeal in proceedings arising under "the pro-
visions of this act," an act regulating powers of a board
of control over railroads, was held not to be in violation
of the Fourteenth Amendment, providing for equal pro-
tection of the laws. 109
Peddlers Without License. An act prescribing a penalty
for peddling without license, specifying some articles
which might be peddled without license, was held not to
violate the Fourteenth Amendment, as the act did not
discriminate between citizens, but left all alike selling
those things, the act only discriminating under the taxing
power as to the things reqiiiring license.
ioe Strauder v. W. Va. 100 U. S. 303.
io7McKinney v. State, 3 Wyoming, 719.
108 Williams v. Fears, 35 S. E. 699, 179 U. S. 270, 21 Sup. Ct. 129.
109 State v. Jacksonville Terminal, 27 So. R. 221.
358 RIGHTS AND PRIVILEGES UNDER
Livery-Stables in Cities. An ordinance of a city allow-
ing four livery-stables in the business center of a city,
while the fifth and all others thereafter established should
be relegated and confined to a locality remote from such
center, was held void as unjustly discriminating between
livery-stable keepers. 110
Prostitutes. A city ordinance prescribing limits for
their residence not contrary to Amendment as to prop-
erty-owners in such limits, likely not as to prostitutes. 111
i
EXCLUSIVE CHARTERS, GRANTS, CONTRACTS.
This subject deserves fuller consideration than has been
given it on pages 136, 13Y. As there stated, on numerous
authorities there given, there is no question, under many
decisions, that an exclusive charter, grant or contract to
carry on a lawful business, containing provisions for ex-
clusive privileges of value to the grantee, where such ex-
clusive grant or privilege is contained in the charter,
grant or contract, so as to be, when accepted and acted
upon by the grantee, considered a contract, an essential
part of the transaction moving the grantee to accept it and
invest his money on its faith, is protected as a contract
by the federal constitution, Art. 1, Sec. X, and being a
valuable franchise or privilege, increased in value by the
exclusive right, it is vested property protected by the
Fourteenth Amendment. I apprehend there could be no
question of its being property, both from its nature and
because rights under a contract are property. The Cir-
cuit Court of Appeals held it property under the pro-
110 Town v. West, 27 So. R. 53, 52 La. Ann. 526.
in L'Hote v. New Orleans, 177 U. S. 587, 20 Sup. Ct. 788.
THL 1 FOURTEENTH AMENDMENT. 359
tection of the Fourteenth Amendment in Pike's Peak
Power Company v. City of Colorado Springs. 111 Fran-
chises have always been regarded as property. Such ex-
clusive charter is denominated as property in The Bing-
hamton Bridge, 112 where the court said: "The consti-
tutional right of one legislature to grant corporate privi-
leges and franchises, so as to bind and conclude a suc-
ceeding one, has been denied. W'e have supposed that if
anything was settled by an unbroken course of decisions
in federal and state courts, it was that an act of incorpo-
ration was a contract between the state and stockholders.
All courts are estopped at this day from questioning the
doctrine. The security of property rests upon it, and
every successful enterprise is undertaken in the unshaken
belief that it will never be forsaken." It was held that an
act giving a charter to build a toll bridge, with a clause
that it should be unlawful for anyone else to erect one
within two miles, was a contract inviolable by the state,
though it did not fix a limit for the duration of the charter.
This doctrine was first settled in the great case cited so
often and through so many years the Dartmouth College
Case. 113 In New Orleans Gas Company v. Louisiana
Light Company 114 this doctrine is held with continued
emphasis in the decision that a legislative grant of ex-
clusive right to supply gas to a city, the right being in-
corporated in the grant on the consideration of the com-
111 105 Fed. 1.
112 3 Wall. 51, 73. So in Pearsall v. Great N. Co., 161 U. S. 661.
us 4 Wheat. 518.
114 115 U. S. 650. So New Orleans Water Works v. Rivers, 115 U.
S. 674.
360 RIGHTS AXD PRIVILEGES UKDER
pany erecting the works, is, after perfomance, a contract
protected by the Constitution in that clause inhibiting a
state from making any law impairing the obligation of a
contract. In numberless cases this principle of the Dart-
mouth College Case, that a charter is a contract between a
state and the corporation, which the state can not im-
pair, has been recognized. In Stone v. Mississippi 115
it is said to have become so imbedded in the jurisprudence
of the United States as to make it to all intents and pur-
poses a part of the Constitution itself. In another case, 110
the doctrine is called "a canon of American jurispru-
dence." Instances of exclusive grants protected are
many. 117 The Slaughter-House Cases 118 hold such char-
ters not repugnant to the Amendment. The Dartmouth
College Case, thus immovably established, has been doubt-
ed as to the correctness of its principle as an original
question, and very much lamented, and properly so. It
chains the power of the states, and deprives them of ca-
pacity to legislate for the good of their people as chang-
ing times and conditions may demand. Charters of ex-
clusive privilege were given in the early days of the
country, when internal improvement was limited, and the
people poor, in the great desire to promote the develop-
ment of the country, which charters in later days are
found to be disastrous to the public weal, which should
us 101 U. S. 814.
us Pearsall v. Great N. Co., 161 U. S. 660.
ii7Covington Bridge Co. v. Kentucky, 154 U. S. 204; St. Tam-
many Water Co. v. N. O. Water Works, 120 U. S. 64 ; Walla Walla
City v. Walla Walla Water Co., 172 U. S. 1: Crenshaw v. Slate
River Co., 6 Rand. 215; Los Angeles v. Los Angeles Co., 177 U. S.
558.
us 16 Wall. 36.
TH& FOURTEENTH AMENDMENT. 361
always be paramount to mere individual or private in-
terests. These exclusive privileges foster great corpora-
tions of monopoly. Even a patent right is a monopoly,
in many respects hurtful; but that is legitimated by the
national Constitution, Art. 1, 8, clause 8, to promote
science and useful arts. Considerations such as those
just indicated led the courts to restrain these exclusive
charters or grants within the narrowest possible limits
consistent with reason, and the courts have been alert and
astute to find exceptions to the doctrine of the Dartmouth
College Case. To warrant the application of the rule
that an exclusive charter is a protected contract and prop-
erty, there must be a contract deducible from the statute
or ordinance claimed to give the exclusive right. In
Stone v. Mississippi 119 Chief -Justice Waite, after ad-
mitting the authority of the Dartmouth College Case,
said : "In this connection, however, it is to be kept in mind
that it is not the charter that is protected, but only any
contract the charter may contain. If there is no contract,
there is nothing in the grant on which the Constitution
can act. Consequently, the first inquiry in this class of
cases always is, whether a contract has in fact been en-
tered into, and if so, what its obligations." We may
say, virtually, that the very letter of the act must breed
this contract, else the courts will deny it. Take the case
of Stein v. Bienville Water Company 120 holding a con-
tract with the City of Mobile, granting the solo privilege
of supplying the city with water for a term of years
us 101 U. S. 814. So New Orleans v. N. O. Water Co., 142 U. S.
79.
120 141 U. S. 67.
362 RIGHTS AND PRIVILEGES UNDER
from a certain creek, not impaired by a contract with,
another company to supply the city with water from a
different source. A very strict construction. We might
think the first contract meant an exclusive right to supply
the city with water, not to be infringed by a right granted
to another company to bring it from another source. The
case shows a leaning against monopoly. It distinguishes
that case from the St. Tammany Case, 121 which was a
grant to supply water from any source.
It will not do for a corporation or person claiming this
sole right to cite the general law of a state in force at the
time of the grant giving in some way exclusive right, as
for instance, that no ferry or bridge right should be grant-
ed within a certain distance of another toll ferry or bridge.
In a general act of Virginia was a provision that no ferry
should be granted within a half mile of another, and it
was held that this was general legislation, subject to
repeal, and did not tie the hands of the state from grant-
ing another ferry right within that distance. There was
no contract. 122 Another case 123 holds precisely similar
doctrine. In Salt Company v. East Saginaw 124 it was
held that an act giving a bounty on salt manufactured in
Michigan, and exempting property used in its production
from taxation, made no contract, and that the act was only
a general law liable to repeal at any time.
And here we must, in every case, remember a domi-
nant rule, laid down in several cases, but emphatically in
121 120 U. S. 64.
122 Williams v. Wingo, 177 U. S. 601.
123 Belmont Bridge v. Wheeling, 138 U. S. 287.
"4 13 Wall. 373.
THE FOURTEENTH AMENDMENT. 863
Pearsall v. Great Northern Company: 125 "Such limita-
tions upon the power of the legislature must be construed
in subservience to the general rule that grants by the state
are to be construed strictly against the grantees, and that
nothing will be presumed to pass except it be expressed in f
clear and unambiguous language. As was said by Mr.
Justice Swayne in Fertilizing Company v. Hyde Park,
97 U. S. 659, 666, The rule of construction in this class
of cases is that it shall be most strongly against the cor-
poration. Every reasonable doubt must be resolved ad-
versely. Nothing is to be taken as conceded but what is
given in unmistakable terms, or by implication equally
clear. The affirmative must be shown. Silence is nega-
tion, and doubt is fatal to the claim. This doctrine is
vital to the public welfare. It is axiomatic in the juris-
prudence of this court.' Hence, an exclusive right to
enjoy a franchise is never presumed, and unless the char-
ter contains words of exclusion, it is no impairment of
the grant to permit another to do the same thing, although
the value of the franchise to the first grantee may be
wholly destroyed." I refer to the opinion of Justice
Brown in that case as valuable in presenting the rule and
its limitations as stated in numerous cases cited by him,
and instances, which it would be out of place to elab-
orate here, as I seek only in this work, as its general ob-
ject, to state main principles pertinent to the Fourteenth
Amendment. In Central Railroad v. Wright 126 is a later
125 161 U. S. 647. See Xewton v. Commissioners, 100 U. S. 548 ;
Louisville v. Bank, 174 U. S. 439; Hamilton Gas Co. v. Hamilton,
146 U. S. 258.
126 164 U. S. 327.
364 RIGHTS AND PRIVILEGES UNDER
announcement of the same rule. The case of Ford v.
Delta, etc. Company 127 contains a lucid presentation of
the subject, and evinces a trend against such exclusive
privileges in holding to the rule of the most strict con-
struction of the provision of privilege or exemption. It
further holds the important doctrine that an exemption
from taxation of railroad property applies, not to all that
the company may own, but only to that used in its corpor-
ate business ; and further that such exemption clause does
not relieve from assessments for local improvements.
MUNICIPALITY CONTRACT OR GRANT.
There can be no question of the power of a munici-
pal corporation to make an exclusive grant carrying with
it the same immunity from harmful invasion as a grant
direct from the legislature. 128 But the same rule that it
must be expressed in the grant, as has just been stated as
to legislative grants, here applies. And, further, such
municipal grant is. void, and is neither contract nor prop-
erty protected by the federal Constitution, unless the
municipality had the power by law to make the grant. 129
Reservation of right to alter or repeal charter. So hurt-
ful became, in process of time, the rule of the Dartmouth
College Case that, following the suggestion of Justice
Story made in it, the states frequently adopted the course
of inserting in charters granted by them a clause reserving
127 164 U. S. 662; Shelby Co. v. Union Bank, 161 U. S. 149.
128 Pike's Peak Power Co. v. City of Colorado Springs, 105 Fed. 1.
129 Walla Walla City v. Walla Walla Water Co., 172 U. S. 1;
Clarksburg Electric Co. v. City of Clarksburg, 47 W. Va. ; 35 S.
E. 994; New Orleans v. N. O. Water Co., 142 U. S. 79; Hamilton
Gas Co. v. Hamilton, 146 U. S. 258.
TUB FOURTEENTH AMENDMENT. 305
right to alter or repeal the charter, or sometimes incorpo-
rated in their constitutions or general corporation statutes
such reservation. In such cases the exclusive grant con-
fers no contract right or vested property right that is
beyond alteration or repeal, and the federal Constitution
would not be violated by repeal or alteration. Such res-
ervations, being protective and conservative of public right,
are construed liberally in favor of the state. 130
Repeal without reservation in charter. Though when an
exclusive charter or grant has been accepted and the ex-
penditure involved in it made, it is a contract and prop-
erty protected by the Fourteenth Amendment, as well as
by article 1, section 10, of the Constitution, nevertheless
until such performance of the work of the charter, until
some expenditure has been made upon its faith, the charter
or grant may be repealed or altered, since until then there
is no completed contract or vested property. It seems that
mere acceptance will not, in such case, do. 131
Public corporations. The law above stated as to exclu-
sive grants to private corporations or individuals has no
application to public corporations instituted as agencies
of the state in the exercise of government, such as cities,
towns, counties and townships. The legislature has full
iso Citizens' Bank v. Owensboro, 173 U. S. 636 ; Spring Valley Co.
v. Schottler, 110 U. S. 347; Railway Company v. Philadelphia, 101
U. S. 528; Holyoke Co. v. Lyman, 15 Wall. 500; Hamilton Gas Co.
v. Hamilton, 146 U. S. 258; Yeaton v. Bank, 21 Gratt. 593; Louis-
\.lie v. Bank, 174 U. S. 439; Looker v. Maynard, 179 U. S. 46; 21
Sup. Ct. 21.
131 Walla Walla City v. Walla Walla Water Co., 172 U. S. 1;
Bridge v. U. S., 105 U. S. 470; Pearaall v. Great N. Co., 161 U. S.
(i4i. 648; Pike's Peak Power Co. v. City of Colorado Springs, 105
Fed. 1.
366 RIGHTS AND PRIVILEGES UNDER
power over them ; their rights are not contract or property
rights protected by the Constitution. 132
Eminent Domain. We must not understand that these
exclusive grants, charters or franchises are above and free
from the power of the state under the right of eminent
domain. 'No property right is violated thereby contrary
to the Fourteenth Amendment, or contrary to the contract
clause, because neither impeaches the power of the state
existing before , that contract clause or the Fourteenth
Amendment existed. 133
Tax exemption. Akin to exclusive charters or grants
to individuals and corporations is the subject of such char-
ters or grants to individuals or corporations containing
exemption from taxation. Such tax exemption clauses
have been frequently held to be binding on the states, so as
to forbid them from withdrawing or modifying the exemp-
tion. The exemption is a contract protected by section
10, article 1, of the federal Constitution. It is also prop-
erty protected by the Fourteenth Amendment, because in
compelling payment of taxes without law, against law,
property is improperly taken and, therefore, taken against
the due process clause. 134 There have been able protests
against this disastrous doctrine of the power of a legis-
132 Dartmouth College Case, 4 Wheat. 518 ; Newton v. Commis-
sioners, 100 U. S. -549; New Orleans v. N. O. Water Works, 142 U.
S. 79, 89.
133 West River Bridge Co. v. Dix, 6 How. 507 ; Monongahela Co.
v. U. S., 148 U. S. 312; N. O. Gas Co. v. Louisiana Light Co., 115 U.
S. 650, 673.
134 Stearns v. Minnesota, 179 U. S. 223, 21 Sup. Ct. 73; Pearsall
v. Great N. Co., 161 U. S. 646, 647; Citizens' Bank v. Owensboro, 173
U. S. 636; Piqua Branch Bank v. Knoop, 16 How. 369; Asylum v.
New Orleans, 105 U. S. 362; Home of Friendless v. Rouse, 8 Wall.
430; Dodge v. Woolsey, 18 How. 331; Illinois C. R. Co. v. Adams,
(Jan. 1901), 21 Sup. Ct. 251.
THE FOURTEENTH AMENDMENT. 367
lature to exempt from taxation. Even before the Four-
teenth Amendment it may be doubted whether a state
could class-legislate thus, making some pay taxes and ex-
empting others, and relieving large taxable values of pub-
lic duty and burden ; but since the Amendment, is it equal
protection of the law ? Is it consistent with the equality-
before-the-law clause? I would question it, as an orig-
inal proposition; but before the Amendment it had been
decided to be within the competency of the legislature.
The exemption practically operates to favor the rich, "to
make the rich richer, the poor poorer" a special privi-
lege. Of course, it is not without force to say that people
going into costly enterprises on the faith of such exemp-
tion seem to deserve consideration ; but contrast with their
rights the power, which every government ought to have,
to legislate for the many unhampered, in such a matter
as public taxation, by regard for even the rights of the
few. The lofty maxim of the Koman law, of the law of
the civilized world, Salus populi suprema lex est, could
find no fitter application than in this instance. Govern-
ment depends upon this tax power ; it can not live without
it. Can a state estop itself by any such contract of ex-
emption ? It is conceded that it can not, if its constitu-
tion prohibits; but can it on general principles do ^o?
The courts have answered this question in- the affirmative ;
but in several cases Justices Campbell, Miller, Chase and
Field entered vigorous protests, as have many state
judges. 136
n- Piqua Branch Bank v. Knoop, 16 How. 369, 407; University v.
Rouse, 8 Wall. 430, 443.
368 RIGHTS AND PRIVILEGES UNDER
So binding are these exemptions that the states can not
change or modify the process of taxation contrary to their
provisions, as where the charter allowed a tax of three
percent on gross earnings in full of all tax demands, it
was held that taxation could not be put on the value of
corporate property. 136
We must, hoAvever, remember that this tax exemption
is not favored by the courts ; that it must be contained in
the grant in its letter, or by inevitable implication there-
from; that every presumption is against it; that it can
not arise merely because a work is done while a general
law is in force exempting such work from taxation, but
the exemption must come from the charter or grant, so
as to be a contract; that it must be a contract before it
can be deemed property under the Fourteenth Amend-
ment. The same principles here apply as those stated a
few pages back as to exclusive grants or charters. And
we must not forget that such tax exemption can not be
upheld if forbidden by the state constitution. 137
To make such tax exemption binding there must be,
as just stated, a complete contract, and that must be on
consideration of performing a work of cost, and it can
not rest on an exemption existing merely bene placitum. 138
Right to repeal tax exemption Just as in case of ex-
clusive grants and privileges stated above, so as to tax ex-
emptions, in the respect that if the exemption is coupled
with a right to repeal or alter, or the state constitution or
136 Stearns v. Minnesota, 179 U. S. 223, 21 Sup. Ct. 73.
137 Stearns v. Minnesota, 179 U. S. , 21 Sup. Ct. 73; Chesa-
peake & Ohio Railway Co. v. Miller, 19 W. Va. 408.
138 Rector v. Philadelphia, 24 How. 300; Grand Lodge v. New
Orleans, 166 U. S. 143, 146.
THE FOURTEENTH AMENDMENT. 369
a general statute antedating the exemption so provides,
the legislature in ay withdraw or modify the exemption. 139
Exemption from police power There can be none. No
exclusive charter or grant by a legislature or municipality
can withdraw anything from the lawful exercise of the
police power, which would otherwise be subject thereto;
for that would take from the government that for which
it alone exists and is supported by the people govern-
mental power for law, order, safety of life, limb and
property, public health and all other behests of man in
organized society. 140 (See pp. 169, 172.)
Exemption from change of rates charged by railroads
and others. This is treated of elsewhere (181, 184), but
it may be mentioned here as another exception to the rule
of the Dartmouth College Case above discussed, which
exception is that there can be no exemption in a railroad
or other charter granted for business touching the public
interest, carried on for the general public, and which the
public must patronize, which will deprive the state of
power to regulate the rates and charges for such business,
since it concerns the police power, is warranted by th*
police power, just mentioned as an exception from ex-
clusive grants. 141
139 Louisville Water Co. v. Clark, 143 U. S. 1 ; Citizens' Bank v.
Owensboro, 173 U. S. 636; Louisville v. Bank, 174 U. S. 439; Spring
Valley Co. v. Schottler, 110 U. S. 347; Railway Co. v. Philadelphia,
101 U. S. 528; Holyoke Co. v. Lyman, 15 Wall. 500; Hamilton Gas
Co. v. Hamilton, 146 U. S. 258.
1*0 Fertilizing Co. v. Hyde Park, 97 U. S. 659 ; Munn v. Illinois,
94 U. S. 113: N. O. Gas Co. v. Louisiana Light Co., 115 U. S. 650,
f.72: Beer Co. v. Massachusetts, 97 U. S. 25; Stone v. Mississippi,
101 U. S. 814.
ui Munn v. Illinois, 94 U. S. 113; Railroad Co. v. Transportation
Co., 25 W. Va. 324.
370 RIGHTS AND PRIVILEGES UNDER
Must be for public purpose. Can there be an exclusive
charter or an exemption from taxation, without any con-
sideration of answering a public purpose, but simply for
private business not subserving public ends? Those pub-
lic ends have been the inspiring motive for these favors,
and it is supposed that they must be present in such cases.
Such would be the fair import of the cases above cited,
and just now I observe that other cases assert as essential
to justify an exclusive grant a public end and benefit. 142
Against these exclusive charters and contracts made for
long terms by municipalities giving persons or corpora-
tions sole privileges to furnish light, gas, water and the
like, and also against tax exemptions, loud protests have
been made, and many state decisions have denied their
validity; but the holding of the United States Supreme
Court sustaining them is paramount and controlling, as
these grants involve rights of property under the Four-
teenth Amendment and rights under the clause of the
federal Constitution restraining states from impairing
the obligation of contracts. We must, therefore, at last
look to the Supreme Court cases, its many cases, for the
standard and test of their validity. As a res Integra
their validity is open to serious question, especially under
the development of later days. They foster monopoly,
stifle competition, debar persons from equal liberty in the
theatre of lawful competition, amass wealth in a few
hands, give undue power over production and sale, and
undue influence in public affairs and private business.
142 Slaughter House Cases, 16 Wall. 36 ; N. O. Gas Co. v. Louisi-
ana Light Co., 115 U. S. 650; Louisville Gas Co. v. Citizen^' Gas
Co., 115 U. S. 683.
TEE FOURTEENTH AMENDMENT. 371
In the 8 laughter-House Cases a reason for their validity
is stated to be that the English parliament and American
legislatures had long exercised the function of making
such grants for public good; but it seems clear that all
monopolies were condemned by the common law. In
1602 it was so held in Darcy v. Allen. 143 It is difficult
to see how contract or property rights can vest under con-
tracts banned by law. In the time of Queen Elizabeth
these monopolies greatly afflicted England until declared
repugnant to the ancient laws of the realm, as Hume,
Macaulay and Blackstone tell us. 144 They afflict Amer-
ica ; but the trend of public opinion, and the limitations
set up by the courts and legislation, are restrictive of
them, and probably no great disaster will result from
them.
TRUSTS AND COMBINATIONS.
What is the meaning of the "trusts" here alluded to?
Xot those trusts so long known to courts of equity, where
property is held by a trustee for the benefit of another
person, a cestui que trust; but the "trusts" here lef erred
to are those so common of late days, so much the subject
of adverse and favorable opinion, the subject of discus-
sion in the political arena, and of restrictive or prohib-
itory legislation by the national and state legislatures.
This subject, though it is not intended to minutely con-
sider it, is pertinent to this work for the reason that the
question is whether these trusts are against public policy
and void at common law; for if they are not, then undue
iil Coke, 84.
4 Bl. Comm. 159.
372 RIGHTS AND PRIVILEGES UNDER
legislation against them violates the liberty clause and the
property clause of the Fourteenth Amendment covering
the right to contract and engage in business ; otherwise it
does not. The stockholders in different manufacturing
corporations adopted a plan of transferring their cer-
tificates of stock to persons constituting a committee of
trustees, and these trustees issued to the stockholders cer-
tificates of interest "trust certificates." The trustees got
new certificates of stock from the several corporations
and controlled their operations, and the profits went to the
old stockholders under their stock certificates. Thus these
several corporations were combined under one ownership
and control, and no longer competed with each other in the
production and sale of commodities. What the purpose
of this arrangement? Abatement or destruction of com-
petition, limitation of production, if demand declines and
prices go down, maintenance or enhancement of prices for
articles necessary for public consumption; in short, con-
trol of production and prices, control of the market in
given lines, and either the destruction of outstanding con-
cerns or their compulsory amalgamation with the com-
bination; and sometimes even with express provision to
buy in the stock of other companies. The courts declared
such combinations partnerships, and hjeld them illegal,
because corporations can only separately carry out the
functions assigned by the state, and can not merge in a
partnership. 145 The subject, so far as it is repugnant to
1*5 People v. Sugar Trust, 121 N. Y. 582, 18 Am. St. R. 843 ; State
v. Standard Oil Co., 49 Ohio St. 137, 34 Am. St. R. 541 ; Mallory v.
Hanauer Oil Works, 86 Tenn. 598; Bishop v. American Preserve
Co., 157 111. 284, 48 Am. St. R. 317; Distilling Co. v. People, 156
111. 448, 47 Am. St. R. 200: National Harrow Co. v. Hench, 83 Fed.
36, 39 L. R. A. 299.
THE FOURTEENTH AMENDMENT. 373
the federal anti-trust law to protect interstate and foreign
commerce, is discussed in cases cited in the note. 146
In some of the cases cited the courts base their condem-
nation of trusts, not merely on the perversion of charters
by engagement in partnership, but went further, widened
out the basis of their condemnation by declaring the com-
binations to be contrary to public policy, because tend-
ing to the restraint of trade and competition and encour-
agement of monopoly, and undue control of production
and prices, and forfeited the corporate charter. Later,
to avoid the partnership objection, another process was
adpted whereby the corporations conveyed their plants to
trustees, and they conveyed to a newly organized corpor-
ation, which conducted the business in lieu of all and for
the benefit of their stockholders, or the several corpora-
tions transferred in some way to the new corporation.
In some way several corporations competing in production
merge into one, and cease competitive production. By
means of large capital this new corporation can produce
largely, or limit production, lessen supply, enhance prices,
and lower the prices of materials used in production. It
may be at once said that no matter what the form adopted
may be, if the end is to curtail production, enhance prices,
restrain trade and competition, control the market in
commodities, it is condemned by common law and by
many statutes in the different states. The common law,
for the avowed purpose of encouraging freedom of trade
and production, disabled any corporation from buying
" United States v. Freight Association, 166 U. S. 290; United
States v. Joint Traffic Association, 171 U. S. 505; Addyston Pipe
Co. v. United States, 175 U. S. 211.
374 RIGHTS AND PRIVILEGES UNDER
out. or leasing for long terms, the franchises and prop-
erties of other corporations. Its design was to keep them
all going for the public good. The Supreme Court of the
United States held that a railroad corporation, unless
authorized by its charter or legislative act, can not by
lease or other contract turn over to another company for
a long period of time, its road and all its appurtenances,
the use of its franchises and the exercise of its power, nor
can any other railroad company, without such authority,
make a contract to run and operate the road, property and
franchises of another railroad company. 147 Under this
law such combination of corporations would seem to be
unlawful and their charters open to forfeiture for mis-
user. The Chicago Gas Trust Company was incorpo-
rated to purchase and hold or sell the capital stock, or pur-
chase or lease, or operate the property, plant, good will,
rights and franchises of any gas works or company ; but
the Supreme Court of Illinois held the incorporation il-
legal. 148 Such seems to be the general law. 149
In the late great case of Harding v. American Glucose
Company 150 it is held that "any combination of compet-
ing corporations, the necessary consequence of which is the
controlling of prices, or limiting of production, or sup-
pressing competition, in such a way as to create monopoly,
is contrary to public policy and void. An agreement tend-
1*7 Pennsylvania Co. v. St. Louis, Alton, etc., Railroad, 118 U. S.
290; Thomas v. Railroad Co., 101 U. S. 71.
148 People v. Chicago Gas Trust Co., 130 111. 268.
149 Stockton v. Central R. R. Co., 50 N. J. Eq. 52, s. c. p. 489 ;
Houck v. Anheuser-Busch Association, 88 Tex. 184; State v. Ne-
braska Distill. Co., 29 Neb. 700.
150182 111. 551, 74 Am. St. R. 189 (full note.) See 1 Eddy on
Combinations. 000.
TUB FOURTEENTH AMENDMENT. 375
ing to prevent competition and create a monopoly is void
by the principles of the common law, because it is against
public policy." The case declared void the sale of the
American Glucose Company to a new company, the Glu-
cose Sugar Refining Company, to which several other
corporations sold out, and the entire transaction was held
void. The opinion contains an elaborate discussion of the
trust subject. The case referred to applies the same rule
to combinations of labor to affect the price of labor.
Another Illinois case 151 held void an agreement between
a labor or trade union and a board of education that in
all contracts for public works no labor should be employed
but union labor, as stifling competition, making the gov-
ernment discriminate between citizens in public works,
and contrary to the guaranty of liberty in the Constitu-
tion. The court said that such a legislative act would be
void, and so was this contract by a public board represent-
ing the state. A later case 152 holds a city ordinance re-
quiring city printing to be awarded only to union shops, or
those showing a printers' union label, void as promoting mo-
nopoly and restricting the letting to the lowest bidder for
the public benefit. A similar city ordinance as that last
mentioned was held ultra vires in a city council, and as
tending to promote monopoly and prevent competition. 153
The By-laws of the Associated Press Association pro-
vided that the members of it should not receive or furnish
the regular news dispatches of any other news association
1" Adams v. Brennan. 177 111. 194, 69 Am. St. R. 222, 224.
152 Holden v. City of Alton, 179 111. 318.
"a City of Atlanta v. Stein, 111 Ga. 789.
376 RIGHTS AND PRIVILEGES UNDER
covering a given territory, and they were held void. 154
The opposite decision was made in New York. 155
There are many honest advocates of trusts as not dele-
terious to, but promotive of, the public interests. Those
advocates claim that trusts stimulate enterprise and indus-
try by the union of large amounts of money, under safe
management in active development, increasing the em-
ployment of labor and enabling the procurement of ma-
chinery for the production of commodities at lower cost,
and thus lessen the price to consumers, and that they pre-
vent ruinous competition involving citizens owning stocks
in industrial corporations in great losses. It is claimed
that trusts are unavoidable in these days of immense
production, which minor capital can not accomplish, and
that they are indispensable to secure to the nation for-
eign export trade, and without trusts or combinations we
could not cope with foreign production. There is no doubt
that there is fact in these arguments. These combinations
do injury to the body politic, but they also do some good.
Whatever we may think in that regard, so far as such
combinations are adverse to the state, the courts have dis-
regarded these arguments of public benefit. In the case
above mentioned, Harding v. Glucose Company, the court
said the reduction of prices made no excuse, as it might
be done to crush out small concerns and thus increase
prices; and that even if prices were not raised, the true
consideration was that the combination enabled the cor-
poration to raise them at its will. Whilst the courts have
looked askance on trusts, and have administered heroic
is* Inter-Ocean Pub. Co. v. Associated Press, 184 111. 438.
issMathew v. Associated Press, 136 N. Y. 333.
TUB FOURTEENTH AMENDMENT. 377
treatment, in many instances causing their abandonment,
they have properly guarded against the denial of the right
of legitimate contract and business, or the injury of trade.
The legislatures should not destroy the incentive to invest-
ment in legitimate enterprise. Legislation so radical as
to repress business and commerce will injure the public
more than will the trusts. Indeed such legislation could
not stand judicial test; still it would harm business in-
terests. The combinations must injure legitimate trade,
business and competition to fall under legitimate con-
demnation. 156 The conservative mean between the con-
flicting interests is troublesome to attain in legislation and
decision ; but the public Interest is always to be the matter
of first consideration. In Addyston Pipe Company v.
United States, 157 in construing the Act of Congress "to
protect trade and commerce against unlawful restraints
and monopolies," the court laid down a very wholesome
rule of general application to both inter-state and intra-
state commerce in the language that where "the direct and
immediate effect of a contract or combination among par-
ticular dealers in a commodity is to destroy competition
between them and others, so that the parties to the con-
tract or combination may obtain increased prices for
themselves, such contract or combination amounts to a
restraint of trade in the commodity. Total suppression of
trade in the commodity is not necessary to render the com-
bination one in restraint of trade. It is the effect of the
combination in limiting and restricting the right of each
of the members to transact business in the ordinary way,
Diamond Match Co. v. Rocber, 106 X. Y. 473.
"7175 U. S. 211.
378 RIGHTS AND PRIVILEGES UNDER
as well as its effect upon the volume of dealing, that is re-
garded. All the facts and circumstances are to be con-
sidered in order to determine the fundamental question
whether the necessary effect is to restrain inter-state com-
merce." In that case, when in the Circuit Court of Ap-
peals, Judge Taft delivered a very valuable and able
opinion. 158 The nation has no power over the subject
except so far as such trusts may affect inter-state com-
merce. The case just mentioned concedes full power of
the states over trusts, so far as they affect their internal
commerce. So it can be said that, regardless of benefits
that may accrue from trusts, as the court said as to inter-
state commerce, we may say as to intra-state commerce,
when the question of the lawfulness of a combination
arises, that if its logical, natural, probable effect is to
enhance prices, or put it in the power of the combination
to do so, or to suppress competition, or prejudice the free-
dom and naturalness of trade, that combination is unlaw-
ful.
INCOME TAX.
What has the Fourteenth Amendment to do with this ?
If it is an unconstitutional tax, one discriminating be-
tween citizens without constitutional warrant, its impo-
sition would be class legislation denying equal protection
of the law, taking property without due process. Of
course, as the Fourteenth Amendment does not restrain
the powers of the National government, but only those
of the States, it can have no bearing on federal income
15885 Fed. 271, 46 L. R. A. 122.
THE FOURTEENTH AMENDMENT. 379
tax. But is it a lawful state tax ? It is popularly, but
mistakenly, thought that the United States Supreme
Court has decided against the validity of all federal in-
come tax, and it has received bitter condemnation because
of that erroneous understanding. On the contrary, that
court has recognized the validity of such tax when appor-
tioned among the states as required by the Constitution,
article 1, providing that "Xo capitation or other di-
rect tax shall be laid unless in proportion to the census,"
and "Representatives and direct taxes shall be apportioned
among the several states which may be included in this
Union, according to their respective numbers." Chief-
Justice Fuller said that this power in the federal govern-
ment to levy an income tax by apportionment among the
states was "plenary and absolute." 159 The question be-
fore the Supreme Court was whether the act of Congress
lewing an income tax directly on the tax-payer was a
direct or indirect tax ; for if direct, such levy immediately
on the tax-payer, and not mediately by apportionment
among the states, would violate the Constitution. It
was held that taxes on real estate, being indisputably
direct taxes, so were taxes on its incomes from rents, and
so on personal property or its income, and not being ap-
portioned among the states the act was unconstitutional.
The court held that the power to lay direct taxes was with
the states forming the Union, and that they had given up
very great powers of taxation to the general government,
such as excise and import taxes, but had reserved the
power of ^direct taxation, their main source of support, and
is* Pollock v. Farmers' L. & T. Co., 158 U. S. 601.
380 RIGHTS AND PRIVILEGES UNDER
had only given the nation power of direct taxation quali-
fiedly, that is, by apportionment among the states. Of
course, the states possess the power of direct taxation. We
may virtually say that all their taxes are direct. It
is a sovereign power inherent in them from the beginning,
not prohibited to them by the federal Constitution, nor
granted to the nation except as stated. This power resided
in the states before the Fourteenth Amendment came. It
did not affect the power of taxation in the states. (See
pages 149,298. Even though, like the late federal act, a
man of an income of $4,00 should be taxed on it, and one
of less income not taxed, still this would not bring it in op-
position to the Amendment declaring that no state shall
deny the equal protection of the law, because classification
for taxation is usual and lawful. (See pages 337, 341.)
THE FOURTEENTH AMENDMENT. 381
Chapter 17.
KELATIONS OF STATES AND NATION.
It is not designed or necessary to be full or ample upon
this subject, but only to go so far as will indicate the con-
struction and application of the Fourteenth Amendment
as pertinent to the question following:
HOW CAN THE UNITED STATES ENFOKCE
THE FOURTEENTH AMENDMENT ?
That the Fourteenth Amendment greatly increased the
power of the nation over the states by even a temperate
construction I have already stated, and is everywhere
admitted. Before it came the state could deal with the
lives, liberty and property of its people as it chose, with-
out restraint or interference by the nation; there was no
power in the nation to challenge any act of the state for
want of due process or equality, unless its law was ex post
facto, attainder, or impaired a contract; but under this
amendment the nation may challenge, every person
through national instrumentalities may challenge, any
state action in these matters as being without due proc-
ess, or denying the equal protection of the laws, whether
that action be by the legislative, executive or judicial
382 RIGHTS AND PRIVILEGES UNDER
power, if that action impair life, liberty or property with-
out due process, or deny equal protection of the laws, or
is alleged to do so. This is clear from the words of the
amendment. But how can the nation interfere, that is,
by what means, in what mode ? And when it does inter-
fere, how far can it go ? Great questions, grave questions,
to which no fixed answer, except a very general one, can
be given ; but such general principles can be stated, have
been stated, as point the way. Still, there is confusion
and indefiniteness, to a considerable extent. Upon these
questions hang the fate of the Union. The Union can
not exist without the states, and sometimes the states are
jealous of the restriction of their powers. It is with that
great tribunal at Washington to say finally, to hold the
balance adjusted between Nation and States, as so far
it has well done.
Let us see, in short space, what were the relations of
States and Union before the Amendment, and thence in-
fer what change was likely contemplated by the Amend-
ment. It has been often inaccurately said that the fed-
eral government is one of limited powers. It is one of
enumerated powers, but of unlimited authority within that
enumeration. Chief -Justice Marshall said in 1819 : "This
government is acknowledged by all to be one of enum-
erated powers. The principle that it can exercise only
the powers granted to it, would seem too apparent to have
required to be enforced by all those arguments which its
enlightened friends, while it was depending before the peo-
ple, found it necessary to urge. That principle is now
universally recognized. . . But the question respecting
the extent of the powers granted is perpetually arising.
THK FOURTEENTH AMENDMENT. 383
In discussing these questions the conflicting powers of
the general and state governments must be brought into
view, and the supremacy of their respective laws, when in
opposition, must be settled. If any one proposition could
command the universal consent of mankind we might ex-
pect it \yould be this: that the government of the Union,
though limited in its powers, is supreme within its sphere
of action. . . The government of the United States,
then, though limited in its powers, is supreme; and its
laws, when made in pursuance of the Constitution, form
the supreme law of the land, 'anything in the consti-
tution or laws of any state to the contrary notwithstand-
ing.'" 1
Thus it has enumerated powers, not all the powers of a
government; but within those enumerated powers, and
such implied ones as are essential to execute those enum-
erated powers, the government of the United States is su-
preme over states and people. Chief-Justice Chase, for
the whole court, said in Lane Co. v. Oregon : 2 "Both
the states and the United States existed before the Consti-
tution. The people thought that instrument established
a more perfect union by substituting a national govern-
ment, acting with ample power directly upon the citizens,
instead of the confederate government, which acted with
powers greatly restricted only upon the states. But in
many articles of the Constitution the necessary existence
of the states, and within their spheres the independent
authority of the states, is distinctly recognized. To them
nearly the whole charge of interior regulation is com-
i Mofullough v. Maryland, 4 Wheat. 316.
27 Wall. 71, 76.
384 RIGHTS AND PRIVILEGES UNDER
mittea or left; to them and to the people all powers not
expressly delegated to the national government are re-
served. The general condition was well stated by Mr.
Madison in the Federalist thus: 'The federal and state
government are, in fact, but different agents and trustees
of the people, constituted with different powers and de-
signated for different purposes.' '
"It is a familiar rule of construction of the Constitu-
tion of the Union that the sovereign powers vested in
the State governments remained unaltered and unim-
paired, except so far as they were granted to the govern-
ment of the United States. That the intention of the
framers of the Constitution in this respect might not be
misunderstood, this rule of interpretation is expressly de-
clared in the tenth article of amendments, namely: 'The
powers not delegated to the United States are reserved to
the states, respectively, or to the people.' The govern-
ment of the United States can claim no powers which are
not granted to it by the Constitution, and the powers
actually granted must be such as are expressly given, or
given by necessary implication." 3
Thus it is apparent, and no one denies, that it was, be-
fore the Fourteenth Amendment, a function of the state
to make laws and administer them, civil and criminal,
touching, covering, protecting, forfeiting life, liberty and
property. Does the amendment change all this ? No one
has ever so claimed. Some statements of law quoted
above came from the Supreme Court since the adoption
of the Fourteenth Amendment, and no qualification of
The Collector v. Day, 11 Wall. 124.
THE FOURTEENTH AMENDMENT. 385
antecedent doctrine in this regard was made.* Volumes
more could be quoted in this vein. It is a concessum.
"The Fourteenth Amendment was not designed to in-
terfere with the powers of the states to protect the lives,
liberty and property of its citizens, nor with the exer-
cise of that power in the adjudication of the courts of the
state in administering the process provided by its laws. 4
"The Fourteenth Amendment in forbidding a state to
make or enforce any law abridging the privileges and im-
munities of citizens of the United States, or to deprive any
person of life, liberty or property without due process
of law, or to deny to any person the equal protection of
the laws, did not invest, did not attempt to invest, Con-
gress with power to legislate upon subjects which are
within the domain of state legislation." 5
In the great Civil Rights Cases 6 Justice Bradley, in
a great opinion delivered for the court, conceded this prop-
osition. Speaking of the legislation of Congress author-
ized by the Fourteenth Amendment in its fifth section
for its enforcement, he said: "Such legislation can not
properly cover the whole domain of rights pertaining to
life, liberty and property, defining them and providing
for their vindication. That would be to establish a code
of municipal law regulative of all private rights between
man and man in society. It would be to make Congress
take the place of the state legislatures and to supersede
them. It is absurd to affirm that because the rights of
life, liberty and property (which include all civil rights
* In re Converse, 137 U. S. 624.
5 Chief-Justice Fuller In re Rahrer, 140 U. S. 554.
109 U. S. 3, 13.
385 RIGHTS AND PRIVILEGES UNDER
that men 'have ) are by the amendment sought to be pro-
tected against invasion on the part of the state without
due process of law, Congress may therefore provide due
process of law for their vindication in every case ; and that
because the denial by a state to any person of the equal
protection of the laws is prohibited by the amendment,
therefore Congress may establish laws for their equal
protection. In fine, the legislation which Congress is au-
thorized to adopt in this behalf is not general legislation
upon the rights of the citizens, but corrective legislation,
that is, such as may be necessary and proper for counter-
acting such laws as the states may adopt or enforce, and
which by the amendment they are prohibited from mak-
ing or enforcing, or such acts and proceedings as the states
may commit or take, and which by the amendment they
are prohibited from committing or taking."
In that case an act of Congress was held void and not
warranted by the Fourteenth Amendment, because "it
stepped into the domain of local jurisprudence and lays
down rules for the conduct of individuals in society to-
wards each other, and imposes sanctions for the enforce-
ment of those rules, without referring to any supposed
action of the state or its authorities. If this legislation is
appropriate for the enforcement of the prohibition of the
amendment, it is difficult to see where it is to stop. Why
may not Congress with equal show of authority enact a
code of laws for the enforcement and vindication of all
rights of life, liberty and property? If it is supposable
that states may deprive persons of life, liberty or prop-
erty without due process of law (and the amendment it-
self does suppose this), why should not Congress proceed
THE FOURTEENTH AMENDMENT. 387
at once to prescribe due process of law for the protec-
tion of every one of these fundamental rights, in every
possible case, as well as prescribe equal privileges in inns,
public conveyances and theatres? The truth is, that the
implication of a power to legislate in this manner is based
on the assumption that if the states are forbidden to leg-
islate or act in a particular way, and power is conferred
on Congress to enforce the prohibition, this gives Con-
gress power to legislate generally on that subject, and
not merely power to provide modes of redress against such
legislation or action. The assumption is certainly un-
sound. It is repugnant to the Tenth Amendment, which
declares that 'powers not delegated to the United States
by the Constitution, nor prohibited by it to the states,
are reserved to the states respectively, or to the people.' '
See Justice Field's opinion in Ex parte Virginia. 7
I repeat that upon these and many other authorities
it can be safely predicated that, notwithstanding the Four-
teenth Amendment, the states still have sole power to
make and execute all laws, civil and criminal, covering
the subjects of life, liberty and property, to govern all
within their jurisdiction, and that it is only when, by any
action, they affect life, liberty or property and legal
equality without due process of law, the federal govern-
ment, through its Congress or courts, can intervene. Its
powers are only prohibitive, corrective, vetoing, aimed
only at undue process of law. But here arises an impor-
tant question. Notwithstanding all above said, as to the
character and powers of the federal government before the
7 100 U. S. page 360.
388 RIGHTS AND PRIVILEGES U$DER
Fourteenth Amendment, and notwithstanding the fact
that it is only prohibitory, and not a grant of original
power of governmental legislation and action to the fed-
eral government, like that granted to it as to the regula-
tion of commerce, yet the federal government, by this
Fourteenth Amendment, is given a power, not of origi-
nal legislation and action, but a power to nullify state
action, a power which, while not taking away power of
action in the states in the first instance over the subjects
specified in the Amendment, yet none the less a power en-
larging the functions of the federal government over what
they were before the amendment came, a power largely
detractive from state power in last resort. The federal
government has power to counteract action of a state that
is without due process, or denies equal protection of the
laws. Who has the right to say ultimately what is due
process, what is such denial; whether given action of a
state is due or undue process, or undue denial of equal
protection of the laws ? Clearly the national government
possesses this power, else the amendment would do no
good ; if the federal court has to take what the state court
says is due process, or is not an unwarranted denial of
right, then the Fourteenth Amendment has no mission
and performs no office. But who is to say what are the
rights of life, liberty and property and person within
the state ? It might be thought, upon the above authority,
as an original question, that this is a state function.
Who is to say decisively what is liberty, and what its
rights, and what is property: to say whether the right to
do a thing is a right covered by the "liberty" right un-
der the amendment, or to say whether a thing is property
THE FOURTEENTH AMENDMENT. 339
under the amendment? It might be thought that this,
too, is with the states, and that it is only when that which
is liberty or property under state law is taken away or
impaired by wrongful process, by action not according
to law in its due process, that the federal power can in-
tervene, for it might seem that the amendment is levelled
only at that. It might be thought that it was not the
design of the amendment to give power to the nation to
prescribe what is liberty and its rights, what is property
and its rights. If a federal court can say, contrary to a
state court, that a personal right claimed by a person
is a right of liberty, or that a thing claimed by a person
is property, then that federal court would seem to make law
defining what is liberty and rights under it, and make
law defining what is property in a state. If it can do
this in a given case, why does not the principle go fur-
ther and allow it to pass generally and in every instance
on what is a right of person or property in a state? If
Congress can not so legislate, a federal court has no wider
power under this amendment. Refer back to the holding
in the Civil Rights Cases that if Congress can, to any ex-
tent, by legislation, define and declare rights of this kind,
it may prescribe a full code of law to regulate the inter-
course of man with man in society, and not merely cor-
rect and nullify state action that is without due proc-
ess of law. It would seem that if a federal court can
define the law by which citizens of a state shall exercise
liberty or acquire, hold or lose property, or say what is,
what is not a contract or vested property under the law of
the state, it thus makes law for the state. If it can say
whether a person is deprived of liberty for what is not
390 RIGHTS AND PRIVILEGES UNDER
a crime by state law, it makes criminal law for the
state. If it can say that there is a contract or vested
property under state law, when the state court says there
is not, the federal court lays down law for the state gov-
erning contracts and property, and it simply depends on
the number of instances in which it acts to fix the ex-
tent of its making law for the state. Is it said that the
state court may say that this is not a contract or right
or property vested, when in fact in other states it is such ?
That is no difference; it is the right of the state to do
this. It is tested by state law, not law of another state.
This power was original in the states. Should a state
court say finally whether a right claimed by a person
in it under its laws is a lawful right of liberty or proper-
ty? Was this power meant to be taken away by the
amendment? Rights existing under state laws can not
be taken away by state action that is arbitrary, undue
process, not regular and usual in such case, a process not
applicable to all alike in similar circumstances. It is
only undue process, action not warranted by the ordinary
law that is impeached by the Fourteenth Amendment.
Was it meant to go further? Several cases sustain this
position. Leeper v. Texas 8 holds that by the amendment
the powers of the state in dealing with crime are not lim-
ited, except that the state can not deprive persons or
classes of equal and impartial justice, and that law in its
regular course in the state is due process, and when secured
the amendment is satisfied.
The amendment presupposes a right of life, liberty or
8139 U. S, 462.
THE FOURTEENTH AMENDMENT. 391
property already existing under state law, which it pro-
- from undue process prejudicial to the right ; but
there must be such right before it can call on the amend-
ment for defense. Whence does that right come ? It can
only come from state law, because the amendment does not
originate or confer it, but only defends it from illegal
assault. Therefore, it would seem that unless state law
recognizes this right of life, liberty, property or equal-
ity, there is nothing for the amendment to operate upon;
and therefore we must find such right vested under state
law. The Constitution says that no state shall pass an
ex post facto law. A federal court has right to say wheth-
er an act is ex post facto, because that is the particular
thing inhibited. The Constitution says that no state
shall pass a law impairing the obligation of a contract.
It might seem that a federal court does not say what is an
obligatory contract under state law contrary to a state
decision, but that the federal court can say whether an
act of the state is an impairment of its obligation, for that
is the particular thing inhibited. So, it might seem that
the federal court does not say what is a right of liberty,
what may be done under it, or what is property under
state law ; but that it can say, of its own judgment, regard-
less of state judgment, whether the action of the state
upon it as undue process, as that is the particular thing
inhibited Remember, that the amendment gives noth-
ing, except protection to existing right. Hence state de-
cisions as to what are such rights, whether they do or do
not exist, are, or ought to be, controlling. I say state
decisions as what are such rights, not as to whether the
process by which the state may impair them is due proc-
392 RIGHTS AND PRIVILEGES UNDER
ess; the latter is clearly for federal decision. This doc-
trine would accord to the states what all concede they had
before the amendment, would take nothing from the
national power. It would preserve the benefit of local
self-government, the dignity of the states as erst it was.
It prevents, largely, at least, the very objectionable fea-
ture of different courts in the same state propounding the
law differently on the same state of facts, and thus pro-
motes symmetry of the system of law. It preserves the
Union, because it prevents clash and conflict between
state and federal governments. This clash may occur at
any time. In the past it has occurred, and it is only de-
pendent upon the public interest and excitment existing at
any particular crisis what disaster it may bring. In 1813,
in Hunter v. Martin, 9 the Supreme Court of Virginia,
denying the right of the United States Supreme Court
to entertain a writ of error to its judgment, refused to
acknowledge a reversal or to carry out the mandate of
the federal Supreme Court, and the latter court reversed
the refusal, and itself awarded execution. The clash later
between the federal Supreme Court and that of Iowa in
the matter of the validity of railroad bonds in Gelpckc
v. Dubuque 10 is another instance. Justice Miller
speaks 11 of the disagreeable duty he was compelled to
perform in following decisions of the federal Supreme
Court as a circuit judge, to commit to jail over one hun-
dred citizens of Iowa for disobeying a federal decision,
they obeying in good faith an injunction from a state court
94 Munford, 1; 1 Wheat. 304.
101 Wall. 175.
11 Butz v. City, 8 Wall. 587.
THE FOURTEENTH AMENDMENT. 393
one commanding them to do, the other not to do, a cer-
tain thing. Other instances of legal collision have oc-
curred. This doctrine that state decisions control as to
the substance of rights under state law, not the procedure
affecting them, is not merely a matter of com^iity between
state and nation, but of positive law; for the Judiciary
Act of 1789 says: "The laws of the several states, ex-
cept where the Constitution, treaties or statutes of the
United States otherwise provide, shall be regarded as
rules of decision in trials at common law, in courts of
the United States, in cases where they apply." Why this
enactment? Because the laws of the states gave, cre-
ated, governed life, liberty and property, not laws of the
United States, and this being so, deference was to be paid
them in federal courts, first, because parties had right to
claim or deny title under them; and, second, in order to
avoid having conflicting rules of decision in the same state.
Xow, "the laws of the several states" include state consti-
tutions, statutes, common law and decisions expounding
them. 12 It will be obzserved that the statute says that
state laws shall be the rule of decision "in trials at com-
mon law." It is not to be inferred from this that there
is to be in federal courts on the same facts different
decisions on property rights in equity and law cases ; that
is, that the federal courts will follow state courts in the
one case and not in the other. It might be so thought
from some cases; 13 but I understand those cases to refer
12 Bucher v. Cheshire, 125 U. S. 582.
is Boyle v. Zacharie, 6 Peters 648; Russell v. Southard, 12 How.
139.
394 RIGHTS AND PRIVILEGES UNDER
to practice, and not to the law of the right of things. 14
But Bucher v. Cheshire, just cited, upholds this distinc-
tion. I think that clause means only that it was not de-
signed to infringe on principles of equity governing chan-
cery courts, as the rules in many respects are different.
It surely can not mean that a federal court acting in a
state in a chancery cause need not follow an equity court of
that state in its decisions of equity law on the same facts,
but would in a law action, and thus have clashing decisions.
But, at any rate, condtdty, harmony certainly unite to
say that in equity cases state decisions on state law should
be followed, and such is the universal practice. It may
be that some federal decisions do not harmonize with
this view; some decisions seeming to go into the field of
declaring what the law of the state is, what it should be
held to be, contrary to state decisions; but in the main
the federal courts do follow this line.
i* Opinion in Brine v. Insurance Co. 96 U. S. 634.
THE FOURTEENTH AMENDMENT. 395
Chapter
STATE DECISIONS HOW FAR THEY CON-
TROL FEDERAL COURTS.
In conformity with principles stated in the last pages
it has been again and again held that laws of the state
tell in federal courts what is good title to land, and, in-
deed, to personal property, except under the commercial
law, and that state decisions are conclusive thereon.
"This court looks to the law of the state in which land
is situated for the rules which govern its descent, alien-
ation and transfer, and the effect and construction of wills
and other conveyances." 1
"The laws of the state in which lands are situated con-
trol exclusively its descent, alienation and transfer, and
the effect and construction of instruments intended to con-
vey it" 2
It is perfectly clear that no title to lands can be ac-
quired or passed, unless according to the law of the state
in which they are situated. That governs its descent,
devise, alienation or other mode of its transfer. ^
iDe Vaughn v. Hutchinson, 165 U. S. 566; Clark v. Clark, 178
r. 8. 186, 20 Sup. Ct. 873.
2 Brine v. Ins. Co. 96 U. S. 627.
- Clark v. Graham, 6 Wheat. 577; Clark v. Clark, 178 U. S. 186;
Abraham v. Casey, ITU U. S. 210.
396 RIGHTS AND PRIVILEGES UNDER
"The construction of state law upon a question affect-
ing the title to real property in the state by its highest
court is binding upon the federal courts" 4 So as to stat-
ute of limitations. 5 So with personalty within the state.
If a man has title to property in a state, he must look
to state law to hold it. He has no other right. If he
claim a personal right, a right of liberty, it is likewise.
Living in the state, he can do those things which state
law allows; he can not do those things which it forbids.
He is subject in rights of liberty and property to state
law.
It has been through the whole life of the nation held that
the construction of state law by the highest state court
as to property, the interpretation of state statutes, their
application to things, the construction of state constitu-
tions, and their application to things, the validity of
statutes, what are offenses, what are rights, except under
commercial law of general application, is exclusively with
state courts, and the federal courts will follow their de-
cisions, unless violative of federal law. 6
"We may think that the Supreme Court has miscon-
4 Williams v. Kertland, 13 Wall. 306; U. S. v. Fox. 94 U. S. 315;
Turner v. Wilkes, 173 U. S. 461; Arndt v. Griggs, 134 U. S. 316
(full).
s Percy v. Cockrill (C. C. A.), 53 Fed. 872; Brunswick v. Bank,
99 Fed. 635.
Leeper v. Texas, 139 U. S. 463; Harpending v. Dutch Church,
16 Peters, 455; N. Y. Life Ins. Co. v. Cravens, 20 Sup. Ct. 962; 178
U. S. 389; Fairfiled v. County, 100 U. S. 47; Leffingwell v. Warren,
2 Black, 599 ; Claiborne Co. v. Brooks, 111 U. S. 400 ; McElvaine v.
Brush, 142 U. S. 156; Morley v. Lake Shore Co. 146 U. S. 162;
Bucher v. Cheshire Co. 125 U. S. 555; Dick Duncan v. McCall, 139
U. S. 449; Norton v. Shelby Co. 118 U. S. 425; Williams v. Eggle-
ston, 170 U. S. 303; Loeb v. Trustees, 179 U. S. 472, 21 Sup. Ct. 174;
Abraham v. Casey, 179 U. S. 210.
TUB FOURTEENTH AMENDMENT. 397
strued its constitution or statute ; but we are not at lib-
erty to set aside its judgments. That court is the final
arbiter as to such question." 7
"The elementary rule is that this court accepts the in-
terpretation of a state statute affixed to it by the court
of last resort thereof." 8
And the same is the rule as to the law of the state
affecting lii'e or liberty. 9
This rule that the federal courts follow state decisions
as to state laws and rights under them is almost invariable.
There are some exceptions. If a "federal question" is
involved, if a right vested in the party by federal Con-
stitution, statute or treaty, or protected thereby, is in-
volved, the federal court forms its independent judgment.
By this it might be argued is meant, that when an af-
firmative right, or defense or protection is given, granted
by federal law, as the federal court construes and applies
that law, as a state court does its law, the federal court
will think for itself. We may misunderstand here. I
say this is where the federal Constitution or law origi-
nates, confers such right or protection, as the right to carry
on commerce, the right to exercise a federal office, the
right of a colored man to vote. But the Fourteenth Amend-
ment originates, grants nothing; it only protects existing
rights coming from the state, held under state law, from
impairment without due process of law. Therefore, it
7 Forsyth v. Hammond, 166 U. S. 518.
s Missouri. Kansas & T. R. R. v. McCann, 174 U. S. 586; Mer-
chants' Bank v. Pennsylvania, 167 U. S. 461 ; Morley v. Lake Shore
Co. HG U. S. 102: Board v. Louisiana, 179 U. S. 622, 21 Sup. Ct.
263.
Nobles v. Georgia, 168 U. S. 398; Leeper v. Texas, 139 U. S.
462.
RIGHTS AND PRIVILEGES UNDER
is with the state court to say whether a party has a right
to do a certain thing, or a vested right of property, and
the federal court recognizes that decision, if such right
is affected only by due process of law.
Contracts. From principles above stated, as an original
question, it might seem that it is for the state court
to say, under that clause of the federal Constitution
prohibiting states from passing any law impairing the
obligation of a contract, first, whether by state law
there is a contract to be impaired, since the state has, by
the police power, the right to say what shall be a valid
contract, and what no contract, and because, second, par-
ties must contract according to the law of the state; 10 and
also that clause does not define in what a contract con-
sists, just as the Fourteenth Amendment does not de-
fine liberty or property, but leaves it to state law to do this.
As the state court held that a judgment was not a con-
tract, it was held that an act reducing interest on a judg-
ment did not viplate the clause against the impairment of
contract, 11 and followed the state court holding there was
no contract. It is with the state court to say what is a con-
tract, and a contract existing according to state law; it is
then with the federal judiciary to say, of its own judg-
ment, whether the state act impairs its obligation, as
it is with the state court to say whether state laws give
a right personal or proprietary, and if they do, then it is
with the federal court to say whether it has been worsted
by state action without due process. That it is with the
10 Hooper v. California, 155 U. S. 648.
"Morley v. Lake Shore Co. 146 U. S. 162.
THE FOURTEENTH AMENDMENT. 399
state courts to say whether by state law there is a valid con-
tract would seem clear from many cases. 12
As an original question it might be with an appearance
of plausibility claimed that the true rule ought to be that
the existence or non-existence of a contract should be test-
ed by state decision, if any; yet cases are easily found
antagonizing this. Louisville Co. v. Palmes 13 holds that
the federal question before the court is whether the state
court gave effect to a state law which impairs the obli-
gation of a contract ; "in determining which, and in deter-
mining whether there was a contract, the court is not nec-
essarily governed by previous decisions of state courts,
except where they have been so firmly established as to
constitute a rule of property." This asserts the power of
the federal judiciary, not only to say whether state law
is such as to impair the obligation of a contract, but also
to say that by state law there is a contract contrary to
state decision. Is this not making state law of contract;
saying what constitutes a contract by state law ?
The case of McCullough v. Virginia 14 also holds this
doctrine. Other cases assert this. 15 After writing the
above I meet with the case of Houston, etc., R. R. Co. v.
Texas, 16 which sustains this view. Railroad companies
12 Wade v. Travis County, 174 U. S. 499; Hartford Ins. Co. v.
Chicago, etc. 175 U. S. 91, 108. Same case in C. C. A. 36 U. S.
App. 156, 70 Fed. 201 ; Lehigh Water Co. v. Easton, 121 U. S. 392 ;
Com. Bank v. Buckingham, 5 How. 317, 343; Central Land Co.
v. Laidley, 159 U. S. 110.
is 109 U. S. 244.
" 172 U. S. 102, 19 Sup. Ct. 134.
Xew Orleans Water Works v. Louisiana Sugar Co. 125 U. S.
18; C. B. & Q. v. Nebraska, 170 U. S. 57. See 66 Am. St. R. 227.
iol77 U. S. 77; 20 Sup. Ct. 545; Stearns v. Minnesota, 179 U. S.
223, so holds; so Board v. Louisiana, 179 U. S. 622, 21 Sup. Ct. 263.
400 RIGHTS AND PRIVILEGES UNDER
owed bonds to Texas. Texas passed acts allowing
payment of their interest to be made in certain
treasury notes which had been issued by the state.
The railroad company made some payments in
such treasury notes. Then an act was passed
under which such payments were disregarded on the
theory that such treasury notes or warrants were is-
sued in violation of the state constitution. The highest
state court so held, thus deciding that payment in the notes
and the acceptance by the state made no contract of pay-
ment. On appeal the United States Supreme Court held
just the reverse, held that the state constitution did not
invalidate the treasury notes, and did not invalidate the
acts authorizing their issue, and that when the railroad
paid them, and the state received them, a contract arose,
which was impaired by the later act ignoring such pay-
ment. In the opinion Mr. Justice Peckham says: "Upon
these facts this court has jurisdiction, and it is its duty
to determine for itself the existence, construction and
validity of the alleged contract, and also whether, as con-
strued by this court, it has been impaired by any subse-
quent state legislation, to which effect has been given by
the court below." For this holding the justice cites cases
given in the footnote. 17
In the McCullough Case the court said, "This court
has the right to enquire and judge for itself with regard
IT Proprietors of Bridge v Hoboken Land Co. 1 Wall. 116; North-
western University v. People, 99 U. S. 309; Fisk v. Jefferson Police
Jury, 116 U. S. 131; N. O. Waterworks Co. v. Louisiana Sugar Co.
125 U. S. 18; Central Land Co. v. Laidley, 159 U. S. 103; Bacon
v. Texas, 163 U. S. 207 ; McCullough v. Virginia, 172 U. S. 102.
THE' FOURTEENTH AMENDMENT. 401
to the making of the alleged contract with the holders of
the coupons, without regard to the views or decisions
of the state court in relation thereto."
It thus appears clear notwithstanding some dissonant
decisions above cited, that it is alone with the federal ju-
diciary to say finally whether under state law a contract
i-xi-rs, and if it does exist, whether the state law impairs
its obligation. This position seems, perhaps, the better
reasoning. It is on the theory that contracts, particularly
commercial contracts, are of such vital importance, and
are universal, and are governed by general law, and that
therefore their import and obligation should be left to
the nation, and be protected by it. Here we may fitly
apply the eloquent prayer of Cicero: "Nee enim alia lex
Romae, alia Athenis, alia nunc, alia posthac; sed et omnes
gentes, et omni tempore una lex et sempiterna et immu-
tabilis continebit."
It is obviously desirable that negotiable securities, all
commercial contracts governed by the mercantile law which
pervades the business of the whole country from ocean to
ocean, should be tested by rules and decisions applicable,
not in some states alone, but the same in all states. It
would be dangerous, disastrous to such commercial busi-
ness to have diverse, variant and conflicting decisions in '
different states under commercial law, which should be
common and the same everywhere. It would not do to
have commercial securities held valid in one state and
invalid in another. Hence there is much sound reason for
the holding of the Supreme Court that it and other federal
courts may, in cases involving such commercial matters,
act upon their own independent judgment.
402 RIGHTS AXD PRIVILEGES UNDER
Federal Question. Except in cases between residents
of different states, where jurisdiction in the federal courts
rests on such diverse citizenship, in order to give federal
courts jurisdiction there must be a "federal question" in-
volved in the case. 18 The federal Circuit and Supreme
Courts have jurisdiction in cases arising under the Con-
stitution, laws or treaties of the United States. "When a
state violates any right protected by the Fourteenth
Amendment, this jurisdiction attaches, for then there is
a federal question. The act of Congress, March 3, 1887,
and the amendatory act 13th of August, 1888, provide
that "The circuit courts of the United States shall have
original cognizance, concurrent with the courts of the sev-
eral states, of all suits of a civil nature, at common law or
in equity, where the matter in dispute exceeds, exclusive
of interest and costs, the sum or value of two thousand
dollars, and arising under the Constitution of the United
States, or treaties made, or which shall be made, under
their authority." Therefore, where anyone is deprived
of life, liberty or property without due process of law, or
is denied the equal protection of the laws, or the privi-
leges or immunities of citizens of the United States are
abridged, recourse for remedy can be had to the United
States Circuit Court for restraint by injunction or other
proper process. If the suit involve debt or property, it
must be of the value of $2,000 to give original jurisdic-
tion in the Circuit Court, though the case involved a right
under the Constitution of the United States ; for the Su-
preme Court has said : "It is clear that a circuit court can.
is Byers v. McAuley, 149 U. S. 608 ; Turner v. Richardson, 180
U. S. 87, 21 Sup. Ct. 295.
THE FOURTEENTH AMENDMENT. 403
not under that statute (Act 1887 as corrected by Act 1888)
take original cognizance of a case arising under the Con-
stitution or laws of the United States, or treaties made,
or which shall be made, under their authority, or of a con-
troversy between citizens of different states, or of a con-
troversy between citizens of a state and foreign states,
citizens or subjects, unless the sum in dispute, exclusive
of interest and costs, exceeds $2,000." Opinion in U. S.
v. Sayward, 19 re-affirmed in Fishback v. Western Union 20
and Holt v. Manufacturing Company. 21
It is not requisite for jurisdiction that the right or thing
claimed come from the law of the United States ; though
it come from state law, it is protected against unlawful
state action. There is a federal question, if it be such a
right, and is so adversely acted upon by state authority.
The original Constitution gives the federal courts juris-
diction in all cases in law and equity, "arising under this
Constitution, the laws of the United States and treaties
made, or which shall be made, under their authority." 22
And the Fourteenth Amendment having brought with-
in the federal jurisdiction and power the protection
against state action, except by due process of law, of life,
liberty, property and equality before the law, the judi-
cial power of the nation necessarily extends thereto.
When does a question "arise under" the Fourteenth
Amendment to give the federal courts jurisdiction? "A
i 160 U. S. p. 497.
20 161 U. S. 96, 99.
21 176 U. S. 68, 73 and North American Co. v. Morrison, 178 U. S.
262, 20 Sup. Ct. 869; Illinois C. R. Co. v. Adams (Jan. 1901), 21
Sup. Ct. 251.
22 Art. 3, Sec. 2.
404 RIGHTS AND PRIVILEGES UNDER
\
case in law or equity consists of the right of one party, as
well as the other, and may be truly said to arise under
the constitution or a law of the United States, whenever
its correct decision depends upon a right construction of
either." 2S
I refer to the case of Murdock v. Memphis 24 as elaborate
upon this subject.
Though there be several questions involved, yet if only
one is of federal nature, that is sufficient for original ju-
risdiction, but not for an appeal by writ of error to the
Supreme Court from a decree or judgment of the highest
court of the state ; for if there be more than one question
in the record, and one of them is purely a state question,
not a federal question, on which the state decision may
stand, that precludes such appeal or writ of error. 25
Amount or Value in Suit. If the sum of money or value
of the thing in dispute is less than two thousand dollars,
the party who claims that his rights are violated contrary
to the Fourteenth Amendment is not without redress. He
can sue in the state court, and thence appeal to the Su-
preme Court of the United States without regard to
amount or value in controversy ; or if sued by another in
a state court, he can likewise appeal to the Supreme Court
of the United States if the highest court of the state de-
cides against his right. But as just shown (p. 402), he
can not, in the first step, go into the Circuit Court.
23 Mayor v. Cooper, 6 Wall. 252; Martin v. Hunter, 1 Wheat.
314; Cohens v. Virginia, 6 Wheat. 264; Osburn v. Bank, 9 Wheat.
738; Ableman v. Booth, 21 How. 506; New Orleans v. Benjamin, 153
U. S. 411; Claflin v. Houseman, 93 U. IS. 130.
2 *20 Wall. 591.
25 Hopkins v. McLure, 133 U. S. 380; Bacon - Texas, 163 U. S.
207; Beatty v. Fenton, 135 U. S. 244.
TUB FOURTEENTH AMENDMENT. 4Q5
Exceptions to Knle of Following State Decisions I have
above stated some matters pertinent under this head.
There are exceptions to the rule that federal courts fol-
low state courts in determining whether there is, or is not,
a valid binding contract, as above stated (p. 397). A
late case 26 thus states the rule: "Questions of public
policy as affecting the liability for acts done or upon con-
tracts made and to be performed within one of the states
of the Union when not controlled by the Constitution,
laws or treaties of the United States, or by the principles
of the commercial and mercantile law, or of general juris-
prudence, of national or universal application, are gov-
erned by the law of the state, as expressed in its own con-
stitution and statutes, or declared by its highest court,"
citing many cases. These exceptions admit the rule, and
are only made exceptions from necessity. Perhaps, for in-
stance, if a state court were to hold that a contract exempt-
ing a common carrier from liability for negligence, or a
contract contra bonos mores, contrary to general public
policy, or liability for fellow servants' acts, were valid,
the federal courts would not follow. Holdings of state
courts upon general commercial law, everywhere domi-
nant, confined to no state bounds, but which ought to pre-
vail wherever in the nation the wings of commerce go all
decisions contrary to general law would not be followed
in federal courts ; but those are exceptions.
"The courts of the United States are not bound by de-
cisions of the state courts upon questions of general com-
mercial law." 27 But these exceptions do not include
2 Hartford Ins. Co. v. Chicago, etc. Railway, 175 U. S. 91, 100.
27 Gates v. National Bank, 100 U. S. 239; Washburn & Mfg. Co.
v. Reliance M. Ins. Co.. 179 U. S. 1, 21 Sup. Ct. 1.
406 RIGHTS AND PRIVILEGES UNDER
contracts outside the commercial or mercantile law, those
contracts relative to the sale and purchase of real and per-
sonal property, or charging it with debts, contracts not
made under the commercial or mercantile law. Those
exceptions do not militate against the well-established
principle that the courts of the United States follow the
decisions of the highest state courts upon the construction
and application of state laws and personal rights under
them, arid title to real and personal property under such
state laws.
Where there has been no state decision upon the mat-
ter, of course the federal courts are compelled to form
an independent judgment. 28
This doctrine of exception from following state de-
cisions found early expression in Swift v. Tyson, 29 hold-
ing the judiciary act declaring state laws rules of deci-
sions in federal courts had "uniformly been supposed by
the Supreme Court to be limited in application to state
laws strictly local ; that is to say, the positive statutes of
the state and the construction thereof adopted by the local
tribunals, and to rights and titles to things having a per-
manent locality, such as rights and titles to real estate, and
other matters immovable and intra-territorial in their
nature and character. The section does not extend to
contracts and other instruments of a commercial nature,
the true interpretation and effect whereof are to sought,
not in the decisions of the local tribunals, but in the
general principles and doctrines of commercial jurispru-
dence." This statement seems sound.
28 Burgess v. Seligman, 107 U. S. 20.
2 16 Peters, 1.
THE FOURTEENTH AMENDMENT. 407
"When a question to be determined by the Supreme
Court is one of general law, it must be settled by reference
to all authorities, and not by decisions of the highest
state tribunal where the case arose. In such case the de-
cisions of such state court are not binding" on federal
courts. 30 That was a case of liability of a master for
injury to one servant from the negligence of another ser-
vant a matter of general law.
Overruled State Decisions, Effect of The federal courts
follow the last decision of the highest state court in its
construction and application of state law. The federal
Supreme Court has even everruled its own former decisions
made according to a state decision in order to follow a
later, different state decision. In Green v. Neal 31 the
court said: "In a great majority of cases brought before
the federal tribunals they are called on to enforce the laws
of the states. The rights of parties are determined un-
der those laws, and it would be a strange perversion of
principle if the judicial exposition of those laws by state
tribunals should be disregarded. These expositions con-
stitute the law and fix the rule of property. Rights are
acquired under this rule, and it regulates all transactions
which come within its scope."
This rule of following the latest state decision, overrul-
ing former state decisions, has been often applied in fed-
eral courts, the Supreme Court even reversing lower fed-
30 B. & O. R. R. Co. v. Baugh, 149 U. S. 368.
si 6 Peters, 291. See O'Brien v. Wheelock, 95 F. 883.
408 RIGHTS AND PRIVILEGES UNDER
eral courts because of state decisions rendered subsequent-
ly to such federal courts decision. 32
Exceptions to Rule of Following Latest State Decisions.
Confessedly there are exceptions to this rule of following
the latest of conflicting state decisions, cases in which the
Supreme Court has adhered to the former and refused to
follow later state cases. These cases are those where
county or municipal bonds were issued, negotiable in char-
acter, which went into the hands of holders for value, un-
der statutes held by earlier decisions to authorize such
bonds, but which, by later state decisions, overruling for-
mer ones, were held not to have authorized such bonds.
Such bonds have been sustained by the Supreme Court
notwithstanding later state decisions which would render
the bonds void, and this on the theory that they went into
the hands of purchasers on the faith of the prior decision,
and thus made contracts which could not be impaired. In
one of these cases 33 the opinion says: "As a rule, we treat
the construction which the highest court of a state has
given a statute of the state as part of the statute, and
govern ourselves accordingly; but where different con-
structions have been given to the same statute at different
times, we have never felt ourselves bound to follow the
latest decisions, if thereby contract rights which have ac-
crued under earlier rulings will be affected." The opinion
32Leffingwell v. Warren, 2 Black 599; Wade v. Travis Co. 174 U.
S. 499, 508; U. S. v. Morrison, 4 Pet. 124; Backus v. Fort Street
Co. 169 U. S. 557 ; Bauserman v. Blunt, 147 U. S. 647 ; Stutsman v.
Wallace, 142 U. S. 293; Suydam v. Williamson, 24 How. 427; 48
Am. & Eng. Corp. Cas. 257; State R. R. Tax Cases, 92 U. S. 575;
Moores v. Bank, 104 U. S. 625.
33 Douglass v. Pike County, 101 U. S. 686.
TUB FOURTEENTH AMENDMENT. 409
quotes the language of Chief -Justice Taney in Rowan v.
Runnels: 34 "Undoubtedly this court will always feel
bound to respect decisions of state courts, and from the
time they are made regard them as conclusive in all cases
upon the construction of their own laws. But we ought
not to give them a retroactive effect, and allow them to
render invalid contracts entered into with citizens of other
states which, in the judgment of this court, were lawfully
made." Later this doctrine was held not to be limited
to contracts with citizens of other states, but to apply to
all contracts. 35 The opinion in Douglass v. Pike County 3 - 6
further says : "We recognize fully not only the right of the
state court but its duty to change its decisions whenever,
in its judgment, the necessity arises. It may do this for
new reasons, or because of a change of opinion in respect
to the old ones; and ordinarily we will follow them, ex-
cept so far as they affect rights vested before the change
was made. The rules which properly govern courts in
respect to past adjudications are well expressed in Boyd
v. Alabama, 94 U. S. 645."
In Gelpcke v. Dubuque - 3T this doctrine was held. So
in several other cases. 38
This doctrine of departure from state decisions by fed-
eral courts as regards contracts, and it seems to be confined
to contracts, 39 bears the face of justice; that a contract
3*5 How. 134.
ss Ohio Life Ins. Co. v. Debolt, 16 How. 416.
3 101 U. S. 686.
37 1 Wall. 175.
ss Los Angeles v. Los Angeles, 177 U. S. 553; Folsom v. Ninety-six,
159 U. S. 611; Mitchel v. Burlington, 4 Wall. 270; Havmeyer v.
Iowa Co. 3 Wall. 294; Rondot v. Rogers, 99 Fed. 202.
39 Pleasant Township v. Aetna L. Ins. Co. 138 U. S. 67 ; Loeb v.
Trustees, 179 U. S. 472, 21 Sup. Ct. 174.
410 RIGHTS AND PRIVILEGES UNDER
good when made under the statute law as then expounded
by the state court should not be impaired by later adjudi-
cations. It is confined to contracts, because the court
decided those cases under the clause of the Constitution
prohibiting states from passing any law impairing con-
tracts. I say that the doctrine seems just; but can it be
sustained on strict legal principles, even in cases of con-
tract ? It can not be without a denial of established prin-
ciples. A judicial decision does not make law. It is sup-
posed only to declare what the law without it is, what the
law before it was. The legislature makes law, the court
expounds law. Now, the first of two decisions of the same
court upon the same facts, when overruled, was not law up
to the time of the second decision, and thereafter not law,
but, in legal contemplation, after the second decision the
first never for one moment was the law. The law of the
two decisions can not occupy the same time. The first
was a misconstruction, a mistake of law; the second pro-
pounds the true law. Blackstone says: "But even in such
cases the subsequent judges do not pretend to make a new
law, but to vindicate the old one from misrepresentation.
For if it be found that the former decision is manifestly
absurd or unjust, it is declared, not that such a sentence
was bad law, but that it was not law"*
In Gelpcke v. Dubuque 41 the great Justice Miller,
than whom few greater jurists have sat on the Supreme
Bench, if any, maintained in dissent that though the second
Iowa case overruling a former one would destroy the
bonds, yet it must be so, as the former decision never was
*o 1 Bl. Comm. 69.
4i 1 Wall. 175.
TED FOURTEENTH AMENDMENT. 4H
law. He said that the Supreme Court should follow the
last decision on state law, and that though the bonds is-
sued while the first decision that the statute authorized
their issue was in force, yet that decision never was law.
He said: "I understand the doctrine to be in such cases,
not that the law is changed, but that it was always the same
as expounded by the later decision, and that the former de-
cision was not, never had been, the law, and is overruled
for that very reason. The decision of this court contra-
venes this principle, and holds that the decision of the
court makes the law, and in fact that the same statute
means one thing in 1853 and another in 1859." He went
on to show the conflict with former decisions.
The distinguished law writer Bishop, speaking of Doug-
lass v. Pike County 42 says: "The power both of making
and repealing laws is in our legislatures, and the courts
have no jurisdiction, even in the minutest degree, in the
matter. They can say what a law means ; and, if afterwards
they see that they have made a mistake, they can correct
this error by overruling the former decision. The conse-
quence of which overruling is, that the blunder is thence-
forward deemed never to have been law. This doctrine
is fundamental in our jurisprudence, rendered irrepeal-
able, it is believed, by various provisions of our written
constitutions, both national and state. Still, unhappily,
in seeming violation of this doctrine, the courts have held
that where a statute has received what they term a settled
exposition, then a contract has been made which under it
is good, there is created an obligation which can not be
101 U. S. 677.
412 RIGHTS AND PRIVILEGES UNDER
overturned by decisions overruling the earlier exposi-
sition." 4 Exactly similar doctrine is asserted in other
cases. 44
I refer particularly in support of this view to the able
discussion in Alferitz v. Borgwardt, 45 and I beg to refer
also to an opinion filed by me in the case of Weston v.
Ralston. 40
The Constitution says no state shall make any "law"
impairing contracts. "Law" is the same in both cases.
In Swift v. Tyson 47 Justice Story said : "In the ordinary
use of language it will hardly be contended that the de-
cisions of courts constitute laws. They are, at most,
only evidence of what the laws are ; and are not of them-
selves law. They are often re-examined, reversed and
qualified by the courts themselves whenever they are found
to be either defective, ill-founded or otherwise incorrect."
This statement is quoted and approved in later cases. 48
Having written to this point I meet the case of Alferitz
v. Borgwardt. 49 The Supreme Court of California had
held that under a certain kind of mortgage title vested,
but later held that it did not, and in the case cited the
court said: "But appellant contends that it (the first
decision) states the law upon the subject, and that law
43 Bishop, Contracts, Sec. 569.
44 Allen v. Allen, 16 L. R. A. 646; Ray v. Western Pa. Gas Co.
138 Pa. St. 576, 12 L. R. A. 290; Wood v. Brady, 150 U. S. 18; Frink
v. Darst, 14 111. 311; Wade v. Travis Co. 174 U. S. 499.
45 126 Cal. 201.
46 36 S. E. p. 449, 47 W. Va.
47 16 Peters, p. 18.
48 R. R. Co. v. Bank, 102 U. S. 29, 54; N. O. Water Co. v. La.
Sugar Co. 125 U. S. 607; Pollock v. Farmers' L. & T. Co., 158 U. S.
601.
49 126 Cal. 201.
THE FOURTEENTH AMENDMENT.
was not changed until the decision of Shoobert v. DeMotta,
1112 Cal. 215; 53 Am. St. R. 53, in 1896, and in the
meantime this mortgage was made. It is said that to
apply the rule declared in the last case, rather than that
laid down in the first, would be to impair the obligation of
contracts. (Douglass v. County of Pike, 101 U. S. 687.)
In the case named it is said: 'After a statute has been
settled by judicial construction the construction becomes,
so far as contract rights under it are concerned, as much
a part of the statute as the text itself, and a change of the
decision is to all intents and purposes the same in effect
on contracts as the amendment of the law by means of a
legislative enactment.' No rights are acquired here under
a statute in the meaning of that line of authorities, which
seem to refer to laws authorizing the government or some
sub-division thereof to contract certain obligations. Be-
yond this the cases cited do not go. I hardly think the rule
would be applied to decisions of state courts in regard
to general rules of law, although they may affect contract
rights. At best, they but lay down a rule for the federal
courts as to how far they will be governed by decisions
of state courts in the construction of state statutes. Laws
are not made by judicial decisions. The court simply
determines the rights of the parties in that particular con-
troversy.
Courts have never thought themselves bound by it as
they are by a valid statute. 2^o doubt an appellate court
assumes a very grave responsibility when it reverses a
former decision whcih has become a rule property or the
law of contracts, and whenever this is done it must be un-
derstood that the court has not only considered the ob-
414 RIGHTS AND PRIVILEGES UNDER
jections to the former decision, but the evil which may fol-
low from its reversal. The matter is ably discussed in Hart
v. Burnett, 15 Cal. 530, and the views there expressed
have been frequently affirmed. The mere fact that an er-
ror has been made in a decision of the Supreme Court is
no reason for perpetuating it, but in a given case, to cor-
rect it may be productive of more evil than to permit
it to stand. And, as stated in the above case, justice is not
always on the side of him who claims under the erro-
neous decision. Why should one who has honestly acquired
property according to the law of the land lose it because
a judge relying upon imperfect presentation, has erred?
Why should the policy of the government, adopted upon
great deliberation, be so defeated? And especially so
when a decision was never deemed to have the force of ab-
solute law? If the Supreme Court of the United States
shall finally go with the appellants in holding that the
courts are prohibited from reversing an erroneous con-
struction of a state statute because such decision is a law
which impairs the obligation of contracts, then the courts
can never change the erroneous construction ; for a court
can only pass upon existing rights, and must always look
to the past for its law, and, so far as it declares the law,
it declares what it was and is, but can not enact what it
shall be. I do not think that august tribunal will adopt
this view which, if adopted, can result only in the perpet-
uation of error."
In Hart v. Burnett, 50 beginning at page 597, is an able
discussion of the doctrine of stare decisis, and it is shown
5015 Cal. 530.
THE FOURTEENTH AMENDMENT. 415
that where a renunciation of erroneous decisions, though
: al in number, and though they concern title to real
estate, will promote public interest, they often have been,
ought to be, renounced.
In all these cases in the Supreme Court it is required,
in order to apply the doctrine, that there be a contract
valid under the state law, as expounded by the state court
at its date, to uphold the contract over the subsequent
decision. I do not understand that a criminal act which
would not be a crime under decisions rendered at its com-
mission, could not be prosecuted as a crime under a later
decision holding it to be a crime. Would the later decision
be an ex post facto "law" ? It can not be meant that a civil
tort not such when done under decisions then existing
would not be an actionable tort under later decisions hold-
ing it to be such. It may, too, be remarked that under that
clause of the Constitution denying states power to "make
any law impairing the obligation of a contract," it is set-
tled that to come under that clause there must be a con-
stitution or statute, and that a judicial decision is not a
"law" within its meaning. 51 It was not intended to take
away from the judiciary power to say that a contract
is not valid, and never was ; but the doctrine of Gelpcke
v. Dubuque and other like cases makes a decision of a
court a law. I can not see when the question is, What is
a 'law" ? why the same principle does not apply, whether
it is a law to impair a contract or an overruled decision.
In the former case it is settled that a decision is not a
"law."
si Central Land Co. v. Laidley, 159 U. S. p. 109; N. O. Water Co.
V. Sugar Co. 125 U. S. 18; Brown v. Smart, 145 U. S. p. 458.
416 RIGHTS AND PRIVILEGES UNDER
To support the point that a court may, by overruling
antecedent decisions, affect rights under it, see Wood v.
Brady , 52 holding that a party has no vested right in a for-
mer decision construing a statute of limitations. 53 But
contract rights seem to stand good against impairment
by later decisions. 54
State Decisions. It must be said that the question when
the courts will follow or depart from state decisions up-
on state law is in considerable confusion under Supreme
Court decisions. They are not harmonious, and it is dif-
ficult to take any accurate, secure ground on the subject.
Still, the general rule may be stated to be that upon
state law, where no questions of rights conferred by the
federal Constitution, laws or treaties are involved, the
federal courts will follow state decisions.
I should have stated before that another exception
to the rule that federal courts follow state decisions,
is that stated in Burgess v. Seligman. 55 a The courts
of the United States, in the administration of state laws
in cases between citizens of different states, have an inde-
pendent jurisdiction coordinate with state courts, and are
bound to exercise their own judgment as to the meaning
and effect of those laws." The reason given is that the
original grant of jurisdiction to federal courts where the
parties live in different states would do the non-resident
no good if the federal court had only to follow the state
court.
52 150 U. S. 18.
53 Wood v. Brady, 150 U. S. 18.
s* Los Angeles v. Los Angeles, 177 U. S. 558; Folsom v. Ninety-
six, 159 U. S. 611; Rondot v. Rogers, 99 Fed. 202 (C. C. A.) ;
Pleasant Township v. Etna L. Ins. Co. 138 U. S. 67.
55 107 U. S. 20.
THE FOURTEENTH AMENDMENT. 417
Fellow Servants State Decisions. The question of
whether employees are fellow servants, so as to preclude
recovery of the master for injury to one employee from
the negligence of another, is one of general law, and fed-
eral courts will not follow state courts as to that sub-
ject against their own judgment. Hunt v. Hurd (C. C.
A.) 98 Fed. 683.
State Criminal Decisions. As the state courts have sole
jurisdiction to administer state criminal laws, so their
decision as to their validity and their construction by the
highest state courts are followed by federal courts when-
ever they are called upon to pass upon them, almost
infallibly, more uniformly than in civil cases. The Ju-
diciary Act of 1789 saying that in trials at law in federal
courts the laws of the state shall be rules of decision, does
not apply to criminal cases. 56 But the federal courts have
no concurrent jurisdiction with state courts in criminal
law as they have in civil cases, but state courts have ex-
clusive jurisdiction in enforcing criminal law of the state,
and therefore state decisions upon its criminal law are
conclusive on the federal courts. 57
"When a prisoner is indicted in a state court for mur-
der, it is for the courts of the state to decide whether the
indictment sufficiently charges that crime in the first
degree. In view of the decisions of the highest court of
New Jersey declaring the meaning and scope of the stat-
utes of that state under which the accused was prosecuted,
it can not be said that he was prosecuted under an indict-
56 U. S. v. Reid, 12 How. 361 ; Bucher v. Cheshire Co. 125 U. S.
555 ; Logan v. U. S. 144, 263, 300.
'-' New York v. Eno, 155 U. S. 89.
418 RIGHTS AND PRIVILEGES UNDER
n?ent based on statutes denying him the equal protection
of the law, or that were inconsistent with due process of
law as prescribed by the Fourteenth Amendment." 5
A form of indictment prescribed by a state act does not
violate the Fourteenth Amendment. It is for the state
court to decide upon its sufficiency. 59 Decisions of the
highest court of a state as to amendment of the record in
a murder case are final and due process of law. 60
State Rules of Evidence are Rules of Evidence in Fed-
eral Courts under 34, C. 20, Act 1789, in civil cases, ex-
cept where the Constitution, laws or treaties of the United
States otherwise require or provide. 61 The decisions cited
were under the old act of 1789. A later act 62 provides
that no one shall be excluded as a witness in federal courts
on account of color, or in any civil case because he is a
party or interested, except that in actions by or against
executors, administrators or guardians neither party shall
be allowed to testify as to any transaction with or state-
ment by the testator, intestate or ward, unless called by
the opposite party or required by the court, and then says,
"In all other respects the laws of the state in which the
court is held shall be the rule of decision as to the compe-
tency of witnesses in the courts of the United States in
trials at common law and in equity and admiralty." Thus,
with the exception of the instances mentioned, state laws
are the rules of decision in federal courts so far as the com-
8 Bergman v. Backer, 157 U. S. 655.
59 Caldwell v. Texas, 137 U. S. 692.
eoFielden v. Illinois, 143 U. S. 452.
ei Ryan v. Brindley, 1 Wall. 66: Potter v. Bank, 102 U. S. p. 165.
2 Revised Stat. Sec. 858; 2 Desty, Sec. 375; Logan v. U. S. 144
U. S. 263.
THE FOURTEENTH AMENDMENT. 419
}> tency of witnesses is concerned. The Civil Rights Act 63
that every person within the jurisdiction of the United
States shall have the right to "give evidence," the same as
white persons. It is not supposed that this forbids the
states from discriminating as to competency of witnesses,
so they do not exclude merely on account of color, anc|
so the legislation be applicable to all alike of a class.
s Revised Stat. Sec. 1977.
420 RIGHTS AND PRIVILEGES UNDER
Chapter 19.
FEDERAL PEOCESSES TO ENFORCE
AMENDMENT.
.How does the federal judiciary vindicate the rights
protected by the Fourteenth Amendment against wrong-
ful adverse action by state authority?
We may here premise a basic principle laid down by
the Supreme Court in L'Hote v. N. Orleans, 177 U. S.
587 : "Until there is some invasion of congressional power
or private right secured by the Constitution of the United
States, the action of a state in such respect is beyond
question in federal courts." This important principle
must be always regarded.
Appeal to Supreme Court of the United States If it
is claimed that aright protected by the Fourteenth Amend-
ment has been denied by an inferior court of the state,
the party must appeal to the highest state court, and if
that court decides adversely to his right he can appeal to
the Supreme Court of the United States, provided the
case turns on the constitutional question; for if the case
might have turned on another question, one not involv-
ing a right claimed as protected by the amendment, not a
federal question, he can get no relief, because a mere
TUB FOURTEENTH AMENDMENT. 421
erroneous decision by a state court upon a purely state
question, one not involving rights under federal Consti-
tution or law, does not give right to appeal to the United
States Supreme Court. The state court must decide er-
roneously on that constitutional right to reverse it, and ad-
versely to that right. 1 "The conduct of a criminal trial
in a state court can not be reviewed by this court, un-
less the trial is had under some statute repugnant to the
Constitution of the United States, or was so conducted as
to deprive the accused of some right secured to him by
that instrument. Mere error in administering the crim-
inal law of the state, or in the conduct of a criminal
trial no federal right being invaded or denied is be-
yond the revisory power of this court under the statutes
regulating its jurisdiction. Indeed, it would not be com-
petent for Congress to confer such power upon this or any
other court of the United States." 2
So as to civil cases. There must be a federal question
for an appeal to the United States Supreme Court. The
statute says: "A final judgment or decree in any suit in
the highest court of a state, in which a decision in the suit
could be had, where is drawn in question the validity of
a treaty or statute of, or any authority exercised under, the
United States, and the decision is against the validity, or
where is drawn in question the validity of a statute of,
or an authority exercised under, any state on the ground of
their being repugnant to the Constitution, treaties, or laws
lEustis v. Bolles, 150 U. S. 361; Missouri, etc. Co. v. Fitzger-
ald, 160 U. S. 556; N. Orleans v. N. O. Waterworks, 142 U. S. 79;
Bacon v. Texas, 163 U. S. 207; Lowry v. Silver City Co. 179 U. S.
190, 21 Sup. Ct. 104.
2 Gibson v. Mississippi, 1G2 U. S. 565; Davis v. Texas, 139 U. S.
51; Illinois C. R. Co. v. Adams (Jan. 1901), 21 Sup. Ct. 251;
Vazoo & M. V. R. Co. v. Adams, 21 Sup. Ct. 256. 180 U. S. 1.
422 RIGHTS AND PRIVILEGES UNDER
of the United States, and the decision is in favor of their
validity, or where any title, right, privilege or immunity
is claimed under the constitution, or any treaty or statute
of, or commission held or authority exercised under, the
United States, and the decision is against the title, right,
privilege or immunity, specially set apart or claimed by
either party, under such constitution, treaty, statute, com-
mission or authority, may be re-examined, reversed or
affirmed in the Supreme Court upon a writ of error." 3
This requires no amount or value for jurisdiction by
appeal if federal question exists.
To get an appeal to the Supreme Court the case must
fall under that statute. "To give this court jurisdiction
of a writ of error to a state court, it must affirmatively
appear not only that a federal question was presented for
decision by the state court, but that its decision was neces-
sary to the determination of the caus^, and that it was de-
cided adversely to the party claiming a right under the
federal laws or constitution, or that the judgment as ren-
dered could not have been rendered without deciding it." 4
"It must appear that some title, right, privilege or im-
munity under the constitution or laws of the United States
was specially set up or claimed there (in the state court),
and that the decision of the highest court of the state in
which a decision could be had, was against the right, title,
privilege or immunity so set up or claimed." 5
3 Rev. Stat. Sec. 709.
* Eustis v. Bolles, 150 U. S. 361 ; Bacon v. Texas, 163 U. S. 207.
sSayward v. Denny, 158 U. S. 180; Scuyler Bank v. Bollong, 150
U. S. 85; Banholzer v. N. Y. Ins. Co. 178 U. S. 402; Davis v. Burke,
179 U. S. 399; 21 Sup. Ct. 210, 229; Amer. Sugar Co. v. Louisiana,
179 U. S. 89, 21 Sup. Ct. 43; Loeb v. Trustees, 179 U. S. 472, 21
Sup. Ct. 174; Kizer v. Texarkana Co. 179 U. S. 199, 21 Sup. Ct. 100.
TUB FOURTEENTH AAIEXDMENT. 423
But this federal question must exist in the record, a
mere assertion of its existence not being sufficient, but the
record must disclose the presence of such question.
"When a suit does not really and substantially involve
a .dispute or controversy as to the effect or construction of
the Constitution of the United States, upon the determ-
ination of which the result depends, there is not a suit
arising under the Constitution of the United States." 6
When it appears that some title, right, privilege or im-
munity on which recovery or defense depends, will be de-
feated by one construction of the constitution or laws of
the United States, or sustained by the opposite construc-
tion, the case is one arising under the constitution or laws
of the United States; otherwise not. 7
The suit must "arise out of a controversy in regard to
the operation and effect of some provision of the Consti-
tution of the United States upon the law and facts in-
volved. 8
By the Constitution, act of Congress and decisions, when
a right under the Fourteenth Amendment is denied by
the decision of a state court of last resort, an appeal lies
to the Supreme Court of the United States. If the federal
question really arises, is involved in the case if the de-
cision must be for or against the right claimed under the
amendment in order to decide the case, and if that is the
sole pivotal question, and the state decision may not rest
X. Orleans v. Benjamin, 153 U. S. 411; Lambert v. Barrett, 159
U. S. 660; Western Union Tel. Co. v. Ann Arbor R. Co. 178 U. S.
239, 20 Sup. Ct. 867; Avery v. Popper, 179 U. S. 305, 21 Sup. Ct.
94; Yazoo & M. V. R. Co. v. Adams, 180 U. S. 1, 21 Sup. Ct. 256.
7 Starin v. New York, 115 U. S. 257.
s Goldwashing Co. v. Keyes, 96 U. S. 199. See Martin v. Hunter,
1 Wheat. 304, for full discussion of federal jurisdiction. See
Amer. Sugar Co. v. Louisiana, 179 U. S. 89, 21 Sup. Ct. 43.
424 RIGHTS AND PRIVILEGES UNDER
upon another question that is of purely state cognizance,
such appeal to the Supreme Court of the United States,
by writ of error, lies, only, by writ of error.
Pretence Jurisdiction. A party can not go in any way
into and federal court simply fraudulently to evade
state jurisdiction, when his claim of "federal question,"
that is, a right under the constitution or laws of the United
States, is not real, but merely colorable. 9 "The administra-
tion of justice should not be interfered with on mere pre-
texts," and a suit in a federal court of original jurisdic-
tion or appeal on frivolous federal questions will be dis-
missed. 10
United States Circuit Courts. -As elsewhere stated, if a
party be deprived of life, liberty or property by state au-
thority without due process, or denied the equal protection
of the law, or his privileges and immunities be abridged,
he may go to the federal circuit court for relief. But can
that court reverse or nullify for that cause a decision al-
ready made in the matter by any state court ? It can not
by appeal, as no appeal lies to such circuit court from a
state court. It can not act by injunction to the state court
judgment, as the act of Congress prohibits an injunction
from a federal to a state court, except in a proceeding in
bankruptcy. 1:t The circuit court can not reverse in any
way. "A circuit court of the United States can not revise
or set aside the final decree rendered by a state court which
aPittsburg & L. A. Co. v. Cleveland Iron Co. 178 U. S. 270; Ban-
holzer v. N. Y. L. Ins. Co. 178 U. S. 402; Shreveport v. Cole, 129
U. S. 36; New Orleans v. Benjamin, 153 U. S. 411.
10 Lambert v. Barrett, 159 U. S. 600.
11 Rev. Stat. Sec. 720; Haines v. Carpenter, 91 U. S. 254.
TUB FOURTEENTH AMENDMENT. 425
had complete jurisdiction of the parties and subject-mat-
ter." 12
Removal of Cause from State to Federal Court Another
means of enforcing the Fourteenth Amendment is by re-
moval of a suit or proceeding from a state court to a
federal court. "Any suit of a civil nature, at law or in
equity, arising under the Constitution or laws of the
United States, or treaties made, or which shall be made
by or under their authority, of which the Circuit Courts
of the United States are given original jurisdiction by the
preceding section, which may be now pending, or which
may be hereafter brought, in any state court, may be re-
moved by the defendant or defendants therein to the Cir-
cuit Court of the United States for the proper district." ia
The amount or value in dispute must be two thousand
dollars, excluding interest and costs, as that is necessary
for original suit in the Circuit Court. Any civil suit
of any nature, which might have been first brought in the
United States Circuit Court, may be removed. Any case
arising out of a controversy in regard to the operation
and effect of some provision of the federal Constitution
or law upon the facts involved mav be so removed. 14 But
there must be a federal question if there is no diverse cit-
izenship. I do not speak of that as a ground of removal,
but only of a question under the federal Constitution.
v. Clapp, 101 U. S. 551; Elder v. Richmond, 19 U. S.
App. 118, 58 Fed. 536; Forsyth v. Hammond, 166 U. S. 506; Riggs
v. Johnson, 6 Wall. 195.
is Act March 3, 1887, 24 U. S. Stat. 552, amended by act Aug.
13, 1888, 25 U. S. Stat. 433.
i* Goldwashing Co. v. Keyes, 96 U. S. 199; Mexican Co. v. Dav-
idson, 157 U. S. 201; Galveston, etc. v. Texas, 170 U. S. 226. As
to amount Re Penn. Co. 137 U. S. 451.
426 RIGHTS AXD PRIVILEGES UXDER
"A case (not depending on the citizenship of the parties,
nor otherwise specially provided for) can not be removed
from a state court into the Circuit Court of the United
States, as one arising under the Constitution, laws or
treaties of the United States, unless that appears by the
plaintiff's statement of his own claim." 15 But if the an-
swer sets up a defense or right under the Constitution, the
case would be removable.
There is a federal question calling for removal when-
ever the case involves the question of a right under the
Fourteenth Amendment, and calls for the construction
and application of that amendment. 16 Whenever a con-
stitutional or federal question exists, no matter about cit-
izenship. 17 When a state court continues to hold juris-
diction after petition is filed for removal, its wrongful
action in the case further is to be corrected by a writ of
error or appeal, not by punishment of the state judge
for contempt. But after application for removal in a
proper case, when the state court refuses removal, the fed-
eral court at once gets jurisdiction and can proceed with
it as if the state court had made a removal, 18 and there-
after state court's action is void.
A late case holds that a refusal to allow a foreign cor-
poration, which, under state statute allowing it to do so,
has become a domestic corporation, to remove a cause from
is Oregon, etc. v. Skottow, 162 U. S. 490, 495.
is Cohens v. Virginia, 6 Wheat. 379; Kansas Pac. Co. v. Atchi-
son, etc. Co. 112 U. S. 416; Amer. Sugar Co. v. Ix>uisiana, 179 U. S.
89.
IT Cohens v. Virginia, 6 Wheat. 379 ; Kansas Pac. Co. v. Atchison,
etc. Co. 112 U. S. 416.
is C. & O. R. R. Co. v. White, 111 U. S. 134; Kern v. Huidekoper,
103 U. S. 485.
THE FOURTEENTH AMENDMENT. 427
a state court to a federal court, does not abridge the priv-
ileges and immunities of a citizen of the United States,
or deprive it of property without due process of law, or
of equal protection under the Fourteenth Amendment.
It held that a foreign corporation so becoming domestic t
had no right of removel when sued in a state court of
Xorth Carolina by a citizen thereof. 19 If the federal
court quashes the indictment removed it can not go fur-
ther, but sends the accused to state court for new prose-
cution. 20
Court First in Possession of Case Suppose a state court
has lawful first possession of a case, and the party takes
a notion that he prefers the federal forum. Though it
is a case which might have been originally brought in a
federal court, yet having begun in a state court, that
court has a right to finish it, because of the rule that be-
tween courts of concurrent jurisdiction the court which
first obtains possession of a case retains it to the end. 21
So the party must remove his case, or let it go on to final
judgment in the state court, and to the highest state court
by appeal, and then go to the United States Supreme Court
by appeal. He can not, while his suit is pending in the
state court, sue in the United States Circuit Court.
Erroneous State Judgment, though it do involve a right
under the federal Constitution, stands good until reversed
iDebmam v. Southern Bell Tel. Co. 36 S. E. 269, valuable opin-
ion.
20 Bush v. Kentucky, 107 U. S. 110.
21 \Yard v. Todd, 103 U. S. 327; Central Nat. Bank v. Stevens,
169 U. S. 432, 459; Harkrader v. Wadley, 172 U. S. 148; Parsons v.
Snider, 42 W. Va. 517; Oliver v. Parlin & Orendorf Co. 105 Fed. 272.
428 RIGHTS AND PRIVILEGES UNDER
as res judicata in federal courts, and can not be col-
laterally assailed, unless void for want of jurisdiction. 22
Criminal Cases. Suppose a state court is depriving a
man of life or liberty contrary to the Fourteenth Amend-
ment. How does the federal authority intervene ? Here
we must remember that the full police power is left with
the states intact from the Fourteenth Amendment, and
this police power included the power to make and enforce
criminal laws. 23 Thus the states have full and absolute
power to enact and execute by their courts laws
for the breaking of their peace. For the ex-
ercise of the functions committed by the states to
the Union it can enact, under its police power, all
needful criminal and penal laws, and has done so in a
considerable code denouncing punishment upon offenses
against coinage, paper money, mail, pensions, internal
revenue, etc. Federal courts execute these laws exclu-
sively, state courts having no authority over them; nor
have the criminal laws or state rules of evidence any
application in such case. 24 The act of Congress in words
says that the "jurisdiction vested in the courts of the
United States in the cases hereinafter mentioned shall
be exclusive of the courts of the several states ... of
all crimes and offenses against the United States." Nor
have federal courts any jurisdiction to punish crime
against a state. 25
22Forsyth v. Hammond, 166 U. S. 506.
23Barbier v. Connolly, 113 U. S. 27.
24Bucher v. Cheshire Co. 125 U. S. 555; U. S. v. Reid, 12 How.
361; Logan v. U. S. 144 U. S. 263.
25 Pettibone v. U. S. 148 U. S. 209.
THE FOURTEENTH AMENDMENT. 429
"By the Fourteenth Amendment the powers of the
states in dealing with crimes within their borders are
not limited, except that no state can deprive particular
persons, or classes of persons, of equal and impartial
justice under the law; that the law in its regular course
of administration through courts of justice is due pro-
cess, and when secured by the law of the state, the con-
stitutional requirement is satisfied; and the due process
is so secured by laws operating on all alike, and not sub-
jecting the individual to the arbitrary exercise, of the
powers of government unrestrained by the established
principles of private right and distributive justice." 6
"When a state court has entered upon the trial of a
criminal case, under a statute not repugnant to the Con-
stitution of the United States, and has jurisdiction of
the offense and of the accused, mere error in the conduct
of the trial can not be made the basis of jurisdiction in
a court of the United States to review the proceedings
upon a writ of habeas corpus." "The repugnancy of the
state statute to the state constitution will not authorize
a writ of habeas corpus from a court of the United
States, unless the prisoner is in custody under that stat-
ute, and unless also the statute is repugnant to the Con-
stitution of the United States." 27
"The question whether the evidence in the case was
sufficient to justify the verdict, and the question whether
the constitution of Kansas was complied with or not,
v. Texas, 139 U. S. 462; Arrowsmith v. Harmoning, 118
U. S. 194.
27 Andrews v. Swartz, 156 U. S. 272; HarKrader v. Wadley, 172
148.
430 RIGHTS AND PRIVILEGES UNDER
in certain proceedings on the trial, were not federal
questions which this court could review." 28
a When a trial court of a state has jurisdiction and
power, under state law, to determine the law applicable
to the case of an indictment and trial for murder, and the
prisoner, when convicted, has an appeal to an appellate
court of the state, of which he avails himself, the Cir-
cuit Court of the United States, if applied to for a writ
of habeas corpus upon the ground that the proceedings
are in violation of provisions of the Constitution of the
United States, may properly decline to interfere."
The Supreme Court of the United States can not re-
view the judgment of the highest state court in a mur-
der case a in the absence of a federal question giving this
court jurisdiction. The question sought to be presented
as federal questions are entirely within the exercise of
the powers of the state, and this court has no jurisdiction
of them." 30 Touching the finality of state decisions in
criminal cases I refer back to what is said on page (417)
as pertinent here.
But suppose a state tribunal is entertaining a prose-
cution, and the prisoner is being deprived of life or lib-
erty without due process of law. Does he have to go
through the trial and appeal to the state's highest court,
and thence to the United States Supreme Court? Is
there no process by which he can set himself free by at
once bringing his case before the federal court, and there
testing the question whether he is being deprived of life
or liberty without due process ?
28 Baldwin v. Kansas, 129 U. S. 52.
2 In re Duncan, 139 U. S. 449.
so Davis v. Texas, 139 U. S. 651; Davis v. Burke, 179 U. S. 399,
21 Sup. Ct. 210; Amer. Sugar Co. v. Louisiana, 179 U. S. 89, 21
Sup. Ct. 43.
TH& FOURTEENTH AMENDMENT. 431
No Injunction against State Prosecution. The Circuit
Court of Virginia awarded an injunction against a
state court restraining it from prosecuting a man for em-
bezzlement under state law; but the United States Su-
]>ivme Court held that "A Circuit Court of the United
States, sitting in equity in the administration of civil
remedies, has no jurisdiction to stay by injunction pro-
ceedings pending in a state court in the name of the state
to enforce the criminal laws of such state." 31
A federal statute forbids an injunction from a federal
to a state court, except in bankruptcy cases, and except
to protect its own jurisdiction in a case already in it
before commencement of a suit about the same matter
in a state court. 32
si Harkrader v. Wadley, 172 U. S. 148.
32 U. S. v. Parkhurst-Davis Co. 176 U. S. 317; Iron Mountain
R. Co. v. City of Memphis, 96 F. 113.
432 RIGHTS AND PRIVILEGES UNDER
Chapter 20.
HABEAS COEPUS.
This great writ of liberty, the Habeas Corpus, belong-
ing to all common law courts under their original ju-
risdiction, once had narrow office in the federal judi-
ciary. Under the Act of 1789 it could not reach pris-
oners held under state authority. In 1832, when nul-
lification of federal revenue laws was threatened or ex-
isted in South Carolina, and federal officers were prose-
cuted there in state courts for acting under those laws,
Congress extended the writ of habeas corpus for the res-
cue of persons confined under state authority for acts
done as federal officers. In 1842 the writ was extended
to those in custody for acts d6ne under color of authority
of a foreign country, in order to thus vindicate the rights
of a foreign country under the law of nations. In 1867
the writ of habeas corpus in federal courts was extended
to all persons restrained of liberty in violation of the
Constitution, laws or treaties of the United States. Af-
ter this act Chief-Justice Chase said in Ex parte Mc-
Ardle : 1 "This legislation is of the most comprehensive
character. It brings within the habeas corpus jurisdic-
i 6 Wall. 318.
THB FOURTEENTH AMENDMENT. 433
tion of every court and every judge every possible case
of privation of liberty contrary to national Constitution,
law or treaty. It is impossible to widen its jurisdiction.
It is to this jurisdiction that the system of appeals is
applied."
.V person undergoing prosecution in a state court for
a state crime, who claims that he is being deprived of
right contrary to the Fourteenth Amendment, may, un-
der circumstances in exceptional cases, be rescued from
state grasp and custody by a writ of habeas corpus from
a federal court. It will be at once realized that this is
a very grave and delicate power to be exercised by the
national judiciary, ought to be so regarded by it, and
is rarely resorted to. The expressions of the Supreme
Court are full of caution to the subordinate courts upon
the subject. It is a direct attack upon the authority of
a state, indeed upon its dignity and honor, as it assumes
that the state tribunals will not accord to the prisoner
his just defense under the Constitution of his country,
and, as just stated, the Supreme Court has warned in-
ferior federal courts, with emphasis, to be slow and chary
in the exercise of their jurisdiction by habeas corpus
in such cases. Still, the power has, in definite terms,
been frequently declared to exist. The act of Congress
is broad: 2 "The Supreme Court and the circuit and dis-
trict courts shall have power to issue writs of habeas
corpus." Another section 3 restricts the writ to certain
cases, among them cases where the person is in custody
2 Rev. Stat. Sec. 751.
s Sec. 753, Rev. Stat.
434 RIGHTS AND PRIVILEGES UNDER
"in violation of the Constitution, or of a law or treaty
of the United States."
"When a state court has jurisdiction of the offense
and the accused under an indictment found under a
statute of a state, not void under the Constitution of the
United States, and proceeds to judgment under that
statute, a circuit court of the United States has no au-
thority to interfere with the execution of the sentence
by writ of habeas corpus. The refusal by a state court
to grant a writ of error to a person convicted of murder,
or to stay the execution of the sentence, will not warrant
a court of the United States in interfering in his be-
half by writ of habeas corpus." 4
A writ of habeas corpus is a civil proceeding, but not
a writ of error to correct error in a criminal prosecu-
tion; that must be done by an appellate process. But
where the judgment is utterly void, if in a state court,
or though not void if in a federal court, but the statute
under which the prosecution is going on is contrary to
the federal Constitution, or the party is denied essential
equality before the law, it lies, but not to correct mere
error, however gross. 5
"When a prisoner convicted of crime in a state court,
and sentenced there to a punishment, complains that his
rights under the Constitution or laws of the United States
have been thereby violated, he may seek relief in the fed-
eral courts by application to either the proper circuit
court for a writ of habeas corpus, or to a justice of this
court for a writ of error to the state court. The remedy
* Bergman v. Backer, 157 U. S. 655; Gusman v. Marrero, 180
U. S. 81, 21 Sup. Ct. 293.
5 In re Swan, 150 U. S. 648; In re Duncan, 139 U. S. 449; Eaton
v. West Virginia, 91 Fed. 760.
THE FOURTEENTH AMENDMENT. 435
by habeas corpus should be limited to cases in which
the judgment or sentence attacked is clearly void by
reason of its having been rendered without jurisdiction,
or by reason of the court's having exceeded its jurisdic-
tion in the premises ; and the general rule and better prac-
tice, in the absence of special facts and circumstances,
is to require the prisoner to seek a review by writ of error,
instead of resorting to a writ of habeas corpus." 6 The
writ of error here meant is one from a state court to the
United States Supreme Court. So the party must first
go to the highest state court.
In Xew York v. Eno 7 the holding is that whether an
offense charged in an indictment is one against the state or
against the nation, and exclusively punishable in the na-
tional courts, or against both, is a question for a state
court of original jurisdiction (its duty to render such de-
cision as will give effect to the supreme law being the
same as that resting on the courts of the Union), and the
federal courts should decline to issue a habeas corpus, un-
less the case is one of real urgency. "The proper time,
in such case, to apply for such writ to this court is after
the claim to immunity from prosecution in the state court
has been passed on adversely to him by the highest court
of the state."
In the leading case upon the subject Ex parte Royall, 8
it was held: "Circuit courts of the United States have
jurisdiction on habeas corpus to discharge from custody
a person restrained of his liberty in violation of the Con-
In re Frederich, 149 U. S. 70.
loo U. S. 89.
s 117 U. S. 241.
436 RIGHTS AND PRIVILEGES UNDER
stitution of the United States, but who at the time is held
under state process for trial on an indictment charging
him with an offense against the laws of the state. When
a person is in custody under process from a state court
of original jurisdiction for an alleged offense against the
laws of such state, and it is claimed that he is restrained
of his liberty in violation of the Constitution of the
United States, the Circuit Court of the United States has
a discretion whether it will discharge him in advance of
his trial in the court in which he is indicted; but this
discretion should be subordinated to any special circum-
stances requiring immediate action. After conviction in
the state court the circuit court has still a discretion
whether he shall be put to his writ of error to the highest
court of the state, or whether it will proceed by writ of
habeas corpus summarily to determine whether he is re-
strained of his liberty in violation of the Constitution of
the United States."
In a later case, Whitten v. Tomlinson, 9 the decision is :
"Under Section 753 of Revised Statutes the courts of the
United States have power to grant writs of habeas corpus,
for the purpose of inquiring into the cause of restraint of
liberty of any person in jail, in custody under authority
of a state, in violation of the Constitution of the United
States, or a law or treaty of the United States; but, ex-
cept in cases of peculiar urgency, will not discharge the
prisoner in advance of a final determination of his case
in the courts of the state ; and even after determination in
those courts, will generally leave the petitioner to his rem-
9 160 U. S. 231.
THE FOURTEENTH AMENDMENT. 437
edy l.y writ of error from this court." The court strongly
emphasized the wisdom of not discharging in advance of
the action of the state court, saying: "To adopt a different
rule would unduly interfere with the exercise of the
criminal jurisdiction of the several states, and with the
performance by this court of its appropriate duties."
In Ex parte Koyall 10 the court, speaking by Mr.
Justice Gray, of the act of Congress providing that fed-
eral courts and judges in cases of persons in custody "in
violation of the Constitution, or laws or treaty of the
United States shall forthwith award a writ of habeas
corpus, unless it appear from the petition that a party is
not entitled thereto," and providing for summary hearing,
said: "We can not suppose that Congress intended to
compel those courts, by such means, to draw into them,
in the first instance, the control of all criminal prosecu-
tions commenced in state courts exercising authority with-
in the same territorial limits, where the accused claims
that he is held in custody in violation of the Constitution
of the United States. The injunction to hear the case
summarily, and 'thereupon dispose of the party as law and
justice may require/ does not deprive the court of discre-
tion as to the time and mode in which it will exert the
powers conferred upon it. That discretion should be ex-
ercised in the light of the relations existing, under our
system of government, between the judicial tribunals of
the Union and the states, and in recognition of the fact
that the public good requires that those relations be not
disturbed by unnecessary conflict between courts equally
10117 U. S. 241.
438 RIGHTS AND PRIVILEGES UNDER
bound to guard and protect rights secured by the Con-
stitution."
A petition for habeas corpus showed a conviction of
felony in a state court, for embezzlement of funds of a
national bank, alleged to be in violation of the federal
Constitution, but for the reason that it showed no reason
why the parties could not have a review in the state
supreme court, or why it should not be allowed to review
without interference by the federal court, the habeas
corpus was refused. 11
A party sought a habeas corpus because he was con-
victed of murder, when no person of his race, African,
was on the grand or petit jury, though the state law did
not exclude persons of color therefrom. It was held that
he must make the point in the state court, and then go to
the state's highest court, and, failing to do so, could have
no federal writ of habeas corpus. "It was not intended
by Congress that circuit courts of the United States
should, by writs of habeas corpus, obstruct the ordinary
administration of the criminal law of the state through
its own tribunals." 12
A party was, by violence, seized in one state and car-
r ; ed to another, where a prosecution was pending
against him. He sought a federal habeas corpus. The
court held that what effect such seizure would have was
as much within the province of the state court as a ques-
tion of common law or law of nations, as within the
province of federal courts, and the writ was refused, and
the case of Ex parte Eoyall reaffirmed. 13
11 Ex parte Fonda, 117 U. S. 516.
12 l n re Wood, 140 U. S. 278; Pepke v. Cronon, 155 U. S. 100.
is Cook v. Hart, 146 U. S. 183. So Ex parte Glenn, 103 Fed. 047.
TUB FOURTEENTH AMENDMENT. 439
The mere general statement in a petition for habeas
corpus that a petitioner is detained in violation of the
Constitution and laws of the United States is an averment
of mere conclusion of law, not matter of fact. It must
be shown wherein his detention is without due process. 14
Federal Question. But to get a federal writ of -habeas
corpus the case must present a federal question. For in-
stance, it was denied where it was sought by the father
of a child to obtain possession of it from its grandparents.
Xo question of restraint of liberty contrary to the federal
Constitution was involved. A federal writ of habeas
corpus, like all other federal process, must have a federal
question for its basis. 15
No State Habeas Corpus for Federal Prisoners. Though
once claimed by state courts, it is now settled that a state
court has no power to issue a writ of habeas corpus to dis-
charge a prisoner in federal custody. 16 So he be in cus-
tody under authority, or color of authority, civil or mil-
itary, of the United States, there can be no state habeas
corpus. 17
State Criminal Jurisdiction Over Federal Officers. Here
sometimes arises an extremely delicate, sensitive question
between federal and state authority, as has several times
occurred. The police power of the state, broad as it is,
must not infringe on the exercise of necessary powers of
the federal government ; for to allow this would, or might,
disable it from performing efficiently the functions as-
"Whitten v. Tomlinson, 160 U. S. 242; Cuddy Case, 131 U. S.
280, 286.
is In re Burris, 136 U. S. 586.
isAbleman v. Booth, 21 How. 506.
iTTarbell's Case, 13 Wall. 397,
440 RIGHTS AND PRIVILEGES UNDER
signed to it. Therefore the criminal law of the state
can not apply to any person who, as an officer or agent
of the national government, does an act as such, by color
of his office. If his act is one aside from his office, not
in colorable execution of, but really foreign to it, he is
answerable to the state criminal code as anyone else; but
in acting as an officer, though if he were not such the act
would be an offense against the state, it is not such offense,
it being done as such officer.
Davis was indicted for murder in Tennessee, but the
act having been done in self-defense while acting as an
internal revenue collector, the case was removed to the
federal court for trial. 18 The court said: a The United
States is a government with authority extending over the
whole territory of the Union, acting upon the states and
the people of the states. While limited in the number
of its powers, it is, so far as its sovereignty extends, su-
preme. No state can exclude it from exercising them,
obstruct its authorized officers against its will, or with-
hold from it, for a moment, the cognizance of any subject
which the Constitution has committed to it. The general
government must cease to exist whenever it can not en-
force the exercise of its constitutional powers within the
states by its officers and agents. If, when thus acting,
within the scope of their authority, they can be arrested
and brought to trial in a state court, for an alleged offense
against state law, yet warranted by the federal authority
they possess, and if the general government is powerless
to interfere at once for their protection if their pro-
is Tennessee v. Davis, 100 U. S. 257.
THE FOURTEENTH AMENDMENT. 44!
tection must be left to the action of the state court the
operations of the general government may at any time be
arrested at the will of the state. Xo such weakness is to
be found in the Constitution." Removal at once from
the state to the federal court was justified. It was said
that though after trial and affirmance of the conviction
in the state courts, there might be a writ of error to the
Supreme Court of the United States, that might be so
slow as to disable the officer from acting, and thus prej-
udice the federal government in the administration of its
duties; that the material consideration was not the indi-
vidual right of the officer, but the public administration.
In In re Loney 19 a person was arrested in Virginia
for perjury in depositions in a contested election for a
member of Congress, and a writ of habeas corpus issued
from a federal court, and the Supreme Court held that the
"courts of a state have no jurisdiction of a complaint for
perjury in testifying before a notary of the state upon a
contested electon for the House of Representatives of the
United States ; and a person arrested on such complaint
will be discharged on habeas corpus."
In In re Nagle 20 a deputy marshal was in custody of
a sheriff in California charged with murder. He had
killed Terry while Terry was assaulting Justice Field
on his way to hold a federal court. The Supreme Court
held that ^N"agle was lawfully released by the federal court
in California from state custody, as he as marshal had
the same power to keep the peace as a state sheriff, and
was properly acting in defending the judge's life, and
19134 U. S. 372.
20 135 U. S. 1.
442 RIGHTS AND PRIVILEGES UNDER
acted as a marshal, and was not subject to state criminal
law.
In In re Waite 21 is an able opinion justifying a habeas
corpus to release from custody a pension officer of the
United States who had been convicted by an Iowa court,
and his sentence affirmed by the Supreme Court of Iowa,
for an act done by color of his office.
In Ohio v. Thomas 22 an officer in a soldiers' home was
arrested for a violation of state law in furnishing oleo-
margarine to inmates of a government institution, a sol-
diers' home, and he was discharged on habeas corpus.
The court held that the state law had no application to the
act done, as it was in virtue of federal authority.
In Tennessee v. Davis 2a a general statement of the
respective powers of state and nation as to police is made.
"Acts of Congress can not properly supersede police
powers of the state, nor can the police powers of the state
override national authority, as the powers of the state in
that regard extend only to a just regulation of rights with
a view to due protection and enjoyment of all ; and if the
police law of the state does not deprive anyone of that
which is justly and properly his own; it is obvious that
its possession by the state and its exercise for the regu-
lation of the actions of their citizens can never constitute
an invasion of national jurisdiction, or afford a basis for
an appeal to the protection of the national authorities."
In Boske v. Comingore 24 it was held that the district
2i81 Fed. 359.
22 173 U. S. 276.
23 100 U. S. 301.
24 177 U. S. 459, 20 Sup. Ct. 701.
TUB FOURTEENTH AMENDMENT. 443
court could, on habeas corpus, direct the discharge of an
officer of internal revenue service held in custody by the
state, on the ground that his presence was necessary in
discharge of his public duties, without waiting for the
regular course in the state courts, and it was treated as
an exception to the rule laid down in Ex parte Royall.
There is much strength in this reasoning to sustain fed-
eral supremacy over states in giving immunity against
state action to federal officers for acts done as such; but
the argument is not all on one side. Who is to say
whether a federal officer acted really by virtue of his
office ? The federal courts say that they only are to de-
cide this question. But if the officer did not so act, the
state law is violated, and ought not the state to punish
it? If any district or circuit court can any moment ar-
rest the hands of the state, take from it a breaker of its
laws, there is no end to the interruption, the harassment to
state administration. Why not let the state go on? If
a party acted really as an officer, his defense will, presum-
ably, be accorded due weight; if he did not so act he is
and ought to be punished. Shall we assume in advance
that the state will deny him his just defense. If it does
so, there is an appeal to the Supreme Court. Shall there
be in the state two or more federal courts to veto the state
power ? This would detract from the dignity and capacity
of the states. There is no sovereignty in a state in. this
matter. If it be said that there may be delay, that can
equally be said in all other cases. And the state officer
does not enjoy this immunity; for even a state judge
acting as such in the selection of jurors is indictable for
wrongfully excluding colored jurors in violation of the
444 RIGHTS AND PRIVILEGES UXDER
Civil Rights Act. But it was claimed that he was ex-
ercising a merely ministerial function, not a judicial
one, and it was not claimed that the federal govern-
ment could indict a state judge for the exercise of a judi-
cial act. 25 But the question remains, Who is to say
whether the act is judicial ? The clear-cut fact is that the
state officer is prosecuted in the federal court for an act
claimed to be done in the exercise of his judgment as a
state officer. Did the Fourteenth Amendment intend to
confer on the federal government power to prosecute for
crime persons colorably exercising state function ? Before
that amendment it seems that it could not do so. In Ken-
tucky v. Dennison 26 a unanimous court held that though
the federal Constitution made it the "duty" of one state
to surrender fugitives from justice it was merely a moral
duty, and Congress could not coerce its performance by
a governor could not enforce it upon the state by oper-
ating upon the officer. But it is held in Ex parte Vir-
ginia, just cited, that it is the Fourteenth Amendment
that gives this power to the federal government, that is
the power involved in that case. See Justice Field's
opinion in the same case, and opinion in the Civil Rights
Case. 27
I should remark that the power exercised by the na-
tional courts to take from state courts persons under pros-
ecution for acts done as federal officers does not emanate
from the Fourteenth Amendment, but from a power in-
herent in the nation to restrain state action that cripples
25 Ex parte Virginia, 100 U. S. 339.
2624 Howard, 66.
27 109 U. S. 3.
TH FOURTEENTH AMENDMENT. 445
or destroys capacity in the general government to execute
its functions. But the state does not possess power, by
habeas corpus, to take from the custody of the federal
courts an officer of the state who may, in acting as such,
be charged with violating federal law. 28
Appeal in Habeas Corpus. A prisoner defeated in ha-
beas corpus, based on alleged violation of his rights under
the Fourteenth Amendment, can go, by writ of error, to
the Supreme Court of the United States from the judg-
ment of the highest state court. It involves a question
under the Constitution. 29 But suppose a state prosecut-
ing a malefactor against its laws is wronged by disccharge
of a prisoner by a circuit court of the United States.
What is the state's redress ? For a time it had no redress ;
but under Section 5, Act March 3, 1891, 30 the state may
of right go by writ of error into the Supreme Court of
the United States, because that act gives appeal "in any
case that involves the construction or application of the
Constitution of the United States." 31
Mandamus from Federal to State Court. Does it lie?
The question has not been answered by -decisions defi-
nitely. Suppose the United States Supreme Court, in
the exercise of an appellate jurisdiction, which no one
now questions, reverses a decision of the highest court
of a state, and the state court either from misconstruction
of the federal decision, or in willful disregard of it, does
not execute the mandate of the Supreme Court, or departs
28Ableman v. Booth, 21 How. 506.
20 Cook v. Hart, 146 U. S. 183; Parsons v. District, 170 U. S. 45.
3026 U. S. Stat. Chap. 517, page 827.
siHarkrader v. Wadley, 172 U. S. 148.
446 RIGHTS AND PRIVILEGES UNDER
from it in its further proceedings ; what is the remedy of
the suitor? There is no question but that if the state
court's further action departs from what the
United States Supreme Court directed or the prin-
. ciples of its decisions require, an appeal again
lies. No doubt, either, that the Supreme Court
may issue its own process to a federal marshal and
thus execute its judgment where that is appropriate,
that is, where such process, from the nature of the
judgment, will accomplish all that the judgment con-
templates. This was done in the case of Martin v. Hun-
ter, 32 where the Virginia Court of Appeals- denied power
in the United States Supreme Court to mandate
it, and refused to comply with the mandate, the
Supreme Court reversed the refusal, and issued its
own execution. But the present question is, Can the Su-
preme Court issue a mandamus to compel the highest
court of a state to execute its decision ? I should answer
in the affirmative, simply because the federal Supreme
Court having undoubted appellate power over the state
courts, it necessarily follows that it must be able, by a
process of its own, to effectuate its judgment. 33 If this
is not so, here is right in a citizen without remedy ; a func-
tion in a court assigned by law incapable of enforcement.
It is said that a court of one government can not issue
a mandamus to a court of another. That is true ; but the
highest law gives appeal to the national Supreme Court,
and in this particular instance, for this particular pur-
pose, makes the two courts the same as if they were courts
32 1 Wheat. 304.
33 In re Green, 141 U. rf. 325.
TUB FOURTEENTH AMENDMENT. 447
of the same government. There can be no question that
a federal supreme or superior court may award a man-
damus to compel an inferior federal court to obey its
decision; and likewise may a supreme or superior state
court compel an inferior state court. I assimilate them
for the question in hand. But I do not think that any
but the United States Supreme Court can issue a man-
damus to a state court. The Supreme Court has left
the question open. It strongly and properly declares,
through Chief-Justice Fuller, in In re Blake, 34 that the
process by mandamus would be, in such case, "a mode
of redress very likely to lead to jealousies and collisions
between the state and general governments of a character
anything but desirable", and in the case it refused a man-
damus, because a writ of error to correct the state court
would answer all purposes.
In Martin v. Hunter, supra, the same course of pro-
ceeding by writ of error, upon refusal of the state court
to follow the Supreme Court, was adopted. By a later
case just out, where a federal court refuses to obey, there
can be mandamus; but if it goes on and later commits
error, a writ of error, not mandamus, is proper to correct
the error in matter not passed on before. 35
The fourteenth section of the Judiciary Act gives
the Supreme Court power to issue any writ necessary
to execute its jurisdiction. I do not see why mandamus
would not lie to compel a state court. 36 But it only
lies where writ of error or other course will not be ad-
34 175 U. S. 114, 20 Sup. Ct. 42.
35 Ex parte Union Steamboat Co. 178 U. S. 317, 20 Sup. Ct. 904.
s Ex parte Union Steamboat Co. 178 U. S. 317, 20 Sup. Ct. 904.
448 RIGHTS AND PRIVILEGES UNDER
equate. 37 It does not lie to compel a state court to re-
store a disbarred attorney. 38 But this does not answer
the question. Section 688 Kevised Statute only gives
mandamus from Supreme to lower federal, not state,
courts. I know of no statute authorizing it to state
courts.
3T Ex partc Union Steamboat Co. 178 U. S. 317, 20 Sup. Ct. 904;
Re Atlantic City R. Co. 164 U. S. 633; Re Pennsylvania Co. 137 U.
S. 451 ; Re Morrison, 147 U. S. 14.
38 l n re Green, 141 U. S. 325.
TH& FOURTEENTH AMENDMENT. 44Q
Chapter 2J,
CONGRESSIONAL INTERVENTION.
We have been discussing the means and mode by
which the federal government may vindicate the Four-
teenth Amendment. We have seen what extensive ju-
risdiction and powers are vested in the federal courts
to enforce the provisions of the Fourteenth Amendment.
We must not forget that another department of the na-
tional government has a jurisdiction and power over the
states for its enforcement which are broad and mighty,
the exact boundaries of which have not been very defi-
nitely settled. I mean the power of Congress. The
fifth section of the Fourteenth Amendment says: "The
Congress shall have power to enforce, by appropriate leg-
islation, the provisions of this article." What is the
scope of this power of Congress? Where are its limits?
In what cases, in what manner, is it to be exercised ?
The section does not say, could not say. When Con-
gress may intervene, or how, to curb state action by its
legislation this section does not say; but that it has
this power no one can question. Clearly it is with Con-
gress, in the first instance, to say, to legislate, subject
only to the power of the federal judiciary, in the end,
450 RIGHTS AND PRIVILEGES UNDER
to say whether its legislation falls within the circum-
ference of "appropriate legislation" mentioned in sec-
tion 5.
Away back in 1842, under the clause of the Consti-
tution that no person held to service in one state escap-
ing into another should be discharged by the law of the
state of refuge, "but shall be delivered up, on claim of
the party to whom such service or labor is due," the
question was as to the power of the nation to enforce
this mandate, and the Supreme Court said: "The fun-
damental principle applicable to all cases of this sort
would seem to be that where the end is required, the
means are given; and where the duty is enjoined, the
ability to perform it is contemplated to exist on the
part of the functionaries to whom it is entrusted." 1
"Congress have, on various occasions, exercised powers
which were necessary and proper, as means to carry
into effect rights expressly given and duties expressly
enjoined by the Constitution. The end being required,
it has been deemed a just and necessary implication that
the means to accomplish it are given also; or, in other
words, that the power flows as a necessary means to ac-
complish the ends." 2
There no plain, express power was given; only an im-
plied one; whereas the amendment gives, in words, wide
power; the means to accomplish it are given also, not
by implication, but by expression. Therefore it seems
plain that all the means stated in this early expression
1 Prigg v. Commonwealth of Pennsylvania, 16 Peters, 542.
2 Prigg v. Commonwealth of Pa. 16 Peters, 542; Robb v. Connolly,
111 U. S. 624.
THE FOURTEENTH AMENDMENT. 451
of the Supreme Court just quoted are exercisable by
Congress under the fifth section.
Under the clause of the Constitution quoted the Fu-
gitive Slave Act was passed, and, under the principles
of power by implication just stated, it was held valid. 3
In another case 4 the court said: "While certain fun-
damental rights, recognized and declared, but not created
or granted, in some of the amendments, are thereby guar-
anteed only against violation or abridgment by the
United States or the states, as the case may be, and can
not therefore be affirmatively enforced by Congress
against unlawful acts of individuals; yet every right cre-
ated by, arising under, or dependent upon, the Consti-
tution of the United States, may be protected and en-
forced by Congress by such means and in such manner
as Congress, in the exercise of the correlative duty of pro-
tection, or of the legislative powers conferred upon it
by the Constitution, may in its discretion deem most
eligible and best adapted to attain their object."
In a great case, Ex parte Virginia, 5 the court said:
"We held that this protection and this guaranty, as the
fifth section of the amendment expressly ordains, may
be enforced by Congress by means of appropriate leg-
islation. All the amendments derive their force from
this latter provision. It is not said that the judicial
power of the general government shall extend to enforc-
ing the prohibitions and protecting the rights and im-
munities guaranteed. It is not said that branch of
3 Ableman v. Booth, 21 How. 506.
* Logan v. U. S. 144 U. S. 293.
5100 U. S. p. 345.
452 RIGHTS AND PRIVILEGES UNDER
the government shall be authorized to declare void any
action of a state in violation of the prohibitions. It is
the power of Congress which has been enlarged. Con-
gress is authorized to enforce the prohibitions by appro-
priate legislation. Some legislation is contemplated to
make the amendment fully effective. Whatever legis-
lation is appropriate, that is, adapted to carry out the
objects the amendments have in view, whatever tends to
enforce submission to the prohibitions they contain, and
to secure to all persons the enjoyment of perfect equality
of civil rights and the equal protection of the laws
against state denial or invasion, if not prohibited, is
brought within the domain of congressional power. Nor
does it make any difference that such legislation is re-
strictive of what the state might have done before the
constitutional amendment was adopted. The prohibi-
tions of the Fourteenth Amendment are directed to the
states, and they are to a degree restrictions of state power.
It is these which Congress is empowered to enforce, and
to enforce against state action, however put forth,
whether that action be legislative, executive or judicial.
Such enforcement is no invasion of state sovereignty.
No law can be, which the people of the state have, by the
Constitution of the United States, empowered Congress
to enact. . . . Such legislation must act upon persons,
not upon the abstract thing denominated a State, but
upon the persons who are agents of the state in the denial
of the rigths which were intended to be secured. The
argument in support of the petition for habeas corpus
ignores entirely the power conferred upon Congress by
the Fourteenth Amendment. Were it not for the fifth
THE FUl.'RTZEM'H A.UEXDUEM'. 453
section, there might be room for the argument that the
first section is only declaratory of the moral duty of the
state, as was said in Commonwealth of Kentucky v. Den-
nison, 24 How. 66. The act under consideration in that
case provided no means to compel the execution of the
duty required by it, and the Constitution gave none.
It was of such an act that Mr. Chief-Justice Taney said,
that any punishment for neglect or refusal to perform the
duty required by the act of Congress 'would place every
state under the control and dominion of the general gov-
ernment, even in the administration of its internal con-
cerns and reserved rights.' But the Constitution now
expressly gives authority for congressional interference
and compulsion in the cases embraced within the
Fourteenth Amendment. It is but a limited
authority, it is true, extending only to a sin-
gle class of cases; but within its limits, it is complete.
The remarks of Chief-Justice Taney in Kentucky
v. Dennison and Collector v. Day, though entirely just
as applied to the cases in which they were made, are in-
applicable to the case we now have in hand." In the case
from which I have just quoted it was held that a state
judge could be punished in a federal court under a fed-
eral statute for excluding jurors on account of color.
"A right, whether created by the Constitution, or only
guaranteed by it, even without express delegation of
power, may be protected by Congress. Prigg v. Com-
monwealth, 16 Peters 539."
Strauder v. West Virginia, 100 U. S. p. 310.
454 RIGHTS AND PRIVILEGES UNDER
"Rights and immunities created by or dependent upon
the Constitution of the United States can be protected
by Congress. The form and manner of the protection
may be such as Congress, in the legitimate exercise of
legislative discretion, may provide. These may be varied
to meet the necessities of the particular right to be pro-
tected." 7
One of the modes of protection is the removal from
state to federal courts of suits involving such rights under
the Fourteenth Amendment. 8 '
"Every addition of power to the general government
involves a corresponding diminution of the governmental
power of the states. It is carved out of it." 9 The Four-
teenth Amendment is a vast diminution of state power.
The Civil Rights Cases 10 must be regarded under this
head as leading and guiding authority. The holding of
the court was: "The Fourteenth Amendment is prohibi-
tory upon the states only and the legislation authorized
to be adopted by Congress for enforcing it is not direct
legislation on the matters respecting which the states
are prohibited from making or enforcing certain laws,
or doing certain acts, but is corrective legislation, such
as may be necessary or proper for counteracting and re-
dressing the effect of such laws or acts." Justice Brad-
ley delivered a very able opinion, the effect of which is
that it is state action of a particular character that is
prohibited by the amendment, individual invasion of
7 U. S. v. Reese, 92 U. S. 214.
sStrauder v. W. Va. 100 U. S. p. 311.
Ex parte Virginia, 100 U. S. p. 346.
10 109 U. S. 3.
THE FOURTEENTH AMENDMENT. 455
individual rights not being the subject matter of the
amendment. It nullifies all state legislation and action
of every kind which impairs the privileges and immuni-
ties of citizens of the United States, or injures person in
life, liberty or property, or denies them the equal pro-
tection of the laws. It not only does this, but in order
that the national will may not be mere brutum fulmen,
the last section gives Congress power to enforce it by ap-
propriate legislation for correcting the effect of prohibited
state laws and action, and thus render them void and
innocuous. This 'is the power conferred upon Congress,
and this the whole of it. It does not invest Congress
with power to legislate upon subjects within the domain
of state legislation ; but to provide modes of relief against
state legislation or action of the kind referred to. It does
not authorize Congress to create a code of municipal
law for the regulation of private rights ; but only to pro-
vide modes of redress against the operation of state
laws, and the action of state officers, executive or judi-
cial, when subversive of the fundamental rights speci-
fied in the Fourteenth Amendment.
Positive rights and privileges are undoubtedly secured
by the amendment; but they are secured by way of pro-
hibition against state law and proceedings, and power is
given Congress to carry such prohibition into effect; and
its legislation must be predicated upon such supposed
laws or state proceedings, and be directed to the correc-
tion of their operation and effect. To show his mean-
ing Justice Bradley cited the provision prohibiting states
from impairing the obligation of contracts, and he said
that this did not give Congress power to provide for
456 RIGHTS AND PRIVILEGES UNDER
general enforcement of contracts, nor power to invest fed-
eral courts with jurisdiction over contracts, so as to en-
able parties to sue upon them in those courts; but it did
give power to provide remedies by which impairment
of contracts by state law might be counteracted ; that the
remedy which Congress had provided was an appeal from
the state courts to the Supreme Court, where the state
courts upheld a statute alleged to impair such contract;
and that no attempt was made to draw into federal courts
litigation over contracts generally. He further said that
some obnoxious state law passed, or that might be passed,
is necessary to be assumed, in order to lay the founda-
tion of any federal remedy in the case, for the reason
that the prohibition was against state laws impairing con-
tracts. "And so in the present case, until some state law
has been passed, or some state action through its officers
or agents has been taken, adverse to the rights of citi-
zens sought to be protected by the Fourteenth Amend-
ment, no legislation of the United States under said
amendment, nor any proceeding under such legislation
can be called into activity; for the prohibitions are
against state laws and acts done under state authority.
Of course legislation may, and should be, provided in
advance to meet the exigency when it arises ; but it should
be adapted to the mischief and wrong which the amend-
ment was intended to provide against, and that is state
action or laws of some kind adverse to the rights of the
citizen secured by the amendment. Such legislation can
not properly cover the whole domain of rights appertain-
ing to life, liberty and property, defining them and pro-
viding for their vindication. r hjt would be to establish
TUB FOURTEENTH AMENDMENT. 457
a code of municipal law regulative of all private rights
between man and man in society. It would be to make
Congress take the place of state legislatures, and
supersede them. It is absurd to affirm that because the
rights of life, liberty and property (which in-
clude all civil rights that men have) are, by
the amendment sought to be protected against in-
vasion on the part of the state without due pro-
cess of law, Congress may therefore enact due process
of law in every case; and that because denial by a state
to any person of the equal protection of the law is pro-
hibited, therefore Congress may establish laws for their
equal protection. In fine, the legislation which Congress
is authorized to adopt in this behalf is not general legis-
lation upon the rights of the citizen, but corrective leg-
islation, that is, such as may be necessary for counter-
acting such laws as states may adopt, and which, by the
amendment, they are prohibited from making, or such
acts and proceedings as the state may commit or take,
and which, by the amendment, they are prohibited from
committing or taking."
The opinion is a very luminous deliverance by a very
able judge, who can not be accused of undue pro-state
partiality. It is as clear a statement of general prin-
ciples as can be made. It seems to be sound. It asserts
what is important, initial and cardinal in the application
of the Fourteenth Amendment, that it is not an affir-
mative, positive, original grant of power to the nation,
or of original legislation to Congress over privileges and
immunities, life, liberty, property, equality, like that
given to the nation to regulate foreign and interstate com-
458 RIGHTS AND PRIVILEGES UNDER
merce. It is prohibitory only. Congress can not grant
rights of life, liberty or property, or originally say what
they are or shall be, or deny them, or regulate them by
police regulations or otherwise. These matters pertain
to state authority, state autonomy, local self-government.
The body of law touching them must come from the state,
and it is only when the state assails them without due
process that the power of Congress comes in. ,Can Con-
gress pass an act anticipatory of wrongs against the
amendment ? It may do so, provided it be not
general legislation or regulation on the subject,
but prohibitive of those things which, if done,
prejudice the rights mentioned in the amendment.
We might say that Congress, in case of a given act of a
state legislature, might pass an act declaring it void;
yet this would be unheard of. No doubt, Congress can
provide ample remedies through the federal judiciary,
to correct violations of the amendment that may occur.
It has done so in an act 11 giving jurisdiction to circuit
courts of cases arising under the Constitution or laws
of the United States, and by appeal to the Supreme Court
of the United States, and by removal of suits involving
such rights from state to federal courts. These remedies
have proven adequate for a long time, and will likely con-
tinue to do so; but beyond question Congress can change
and enlarge them, from time to time, to meet changing
circumstances or exigencies. The fault found by the Su-
preme Court with the Civil Rights Act was that it was
original legislation, originating rights, declaring that all
11 Rev. Stat. Sec. 629; Act 13, March, 1887.
THE FOURTEENTH AMENDMENT. 459
persons should be entitled to full and equal enjoyment of
the accomodations, advantages, facilities and privileges
of inns, public conveyances, theaters and other places of
public amusement, subject only to the conditions and lim-
itations established by law, and applicable alike to all
citizens of every race and color. This was simply and
purely state legislation. Such powers, notwithstanding
the amendment, still remain with the states. Just such
an act by a state was held constitutional, properly so,
because it was within the state power of legislation. 12
It may cast light upon the proper construction of the
fifth section of the amendment to say that when that
amendment was proposed in Congress, a clause was pro-
posed reading thus: "Congress shall have power to make
all laws which shall be necessary and proper to secure to
the citizens of each state all the privileges and immu-
nities of citizens in the several states, and to all persons
in the several states equal protection in the rights of life,
liberty and property." It was rejected. That rejection
sheds light on the meaning of what was adopted. Had
that clause been adopted, the amendment would mean
more than it does. It would have given Congress power
to do what the Supreme Court in the Civil Rights
Cases says it has no right to do. It would have given
Congress power of affirmative legislation, such as it has
in regard to commerce, to make laws, original power
to make laws touching rights which the people of the
states have, under state laws, covering immunities, privi-
leges, life, liberty, property and equality; in short, to
izDonnell v. State, 48 Miss. 661.
460 RIGHTS A.XD PRIVILEGES UNDER
make a code of regulation, of governing law, as to these
matters, which, as Justice Bradley, in those cases, said
cover everything of value which man has; but as adop
ted, the powers of Congress under the amendment are
only vetoing, corrective, restricting, nullifying bad laws
and action of the states denying those rights.
These principles are exemplified in another case, 13
which involved the question whether section 5519, Re-
vised Statutes, was congressional legislation warranted
by the Fourteenth Amendment. That section provided
that if persons conspired or went in disguise upon high-
ways in any state or on premises of another, to de-
prive any persons, or class of persons, of the equal pro-
tection of the laws, or of equal privileges or immunities,
or to prevent or hinder the authorities of a state from giv-
ing all persons equal protection of the laws, they should
be fined or imprisoned. The act was held not warranted
by the Fourteenth Amendment. It was simply state leg-
islation creating and punishing crime committed by indi-
viduals, not legislation to antidote state action. "It is
perfectly clear," says the opinion by Justice Wood, "that
its purpose also was to place a restraint upon the action
of the states. In the Slaughter House Cases, 16 Wall.
36, it was held by the majority of the court, speaking by
Mr. Justice Miller, that the object of the second clause
of the first section of the Fourteenth Amendment was to
protect from the hostile legislation of the states the privi-
leges and immunities of citizens of the United States.
In the same case the court said that 'if the states do not
is U. S. v. Harris, 106 U. S. C29.
THE FOURTEENTH AMENDMENT. 4QI
conform their laws to its requirements, then by the fifth
section Congress was authorized to enforce it by suit-
able legislation."' The opinion of Justice Bradley, in
U. S. v. Cruikshank, 14 was quoted with approval: "It is
a guaranty of protection against the act of the state
government itself. It is a guaranty against the exer-
tion of arbitrary and tyrannical power on the part of
the government and legislation of the states, not a guar-
anty against the commission of individual offenses; and
the power of Congress, whether expressed or implied, to
legislate for the enforcement of such guaranty does not
extend to the passage of laws for the suppression of crime
within the state. The enforcement of the guaranty does
not require or authorize Congress to perform the duty
that the guaranty itself supposes it to be the duty of the
state to perform, and which it requires the state to per-
form." Again, in the Cruikshank Case 15 and Virginia v.
Rives, 10 the amendment was declared to operate on the
state, not individuals, and this forbids all idea that Con-
gress could legislate on the subjects mentioned in the
amendment, except against adverse state action. The
words of the amendment are, a no state shall" do cer-
tain things, showing unmistakably that it is not general
legislation by Congress that is meant, legislation creat-
ing, defining, enlarging, limiting, or regulating civil
personal rights, or creating and punishing crime in the
first instance. Congress can only, by proper legislation,
render harmless hostile legislation or actions of states.
i* 1 Wood, 308.
"92 U. S. 542.
ie 100 U. S. 313.
462 RIGHTS AND PRIVILEGES UXDER
Where Congress has not merely prohibitory power, but
affirmative, original power given up to it by the states,
as to regulate commerce, coin money, carry mail, lay
tariff, it is different, it is vested with power of general
legislation on those subjects. The case of IT. S. v.
Reese 17 was upon the Fifteenth Amendment, but illus-
trates the same view. Congress had passed an act mak-
ing it an offense for any officer of an election to wrong-
fully refuse to receive or count a vote, or for any per-
son, by force, bribery or unlawful means, to hinder a
citizen from voting at any election. If the act had pun-
ished those who deprived a man of his right to vote "on
account of race, color or previous condition of servitude,"
it might have been justified by the Fifteenth Amend-
ment; but it was general legislation against depriving
anyone on any score of his vote, not legislation to meet
the wrong of depriving one of a vote "on account of race,
color or previous condition of servitude," and it was only
legislation having that end in view that was "appropri-
ate legislation" under amendment Fifteen. The act was
held unconstitutional.
In Baldwin v. Franks 18 the statute involved in U. S.
v. Harris 19 was again held not warranted by Amendment
Fourteen on the same principles. It was also held that
Congress could pass laws to punish anyone for depriv-
ing Chinese of rights guaranteed by treaty. This was be-
cause the full treaty making power is given to the nation,
and a treaty is federal law, and Congress may punish
"92 U. S. 214.
is 120 U. S. 678.
i 106 U. S. 629.
THE FOURTEENTH AMENDMENT. 453
wrongs against that law. This again illustrates the con-
trast between such legislation and that appropriate to
make good the Fourteenth Amendment. So it must not
be thought that Ex parte Yarbrough 20 militates against
this doctrine, or any case holding valid legislation of
Congress based on affirmative grants of power to the
union.
20 no U. S. 665.
464 RIGHTS AND PRIVILEGES UNDER
Chapter 22.
EMINENT DOMAIN.
"Eminent domain is the power of the state to apply
private property to public purposes on payment of just
compensation to the owner." 1 This tells at once what
a mighty power this is. By it the state seizes the citi-
zen's property, takes it from him against his will, and
applies it to the public use in making highways, railroads
and other things for public use. "The right to exercise the
power of eminent domain is inherent in sovereignty, ne-
cessary to it, inseparable from it. From the very nature
of society and organized government this right must be-
long to the state," without mention in the Constitution. 2
The present work is not designed to discuss this important
subject further than as to how far the Fourteenth Amend-
ment bears upon it. The power existed in the Colonies
when they became independent. The Fourteenth
Amendment found, when it came, an established process
resident in the states, by which alone the state could con-
demn, for public want and purposes, the citizen's private
property. It was thus usual, established, due process in
iU. S. v. Jones, 109 U. S. 518.
2 Mississippi Boom Co. v. Patterson, 98 U. S. 403.
TEE FOURTEENTH AMENDMENT. 465
this respect, and therefore can not fall under the brand of
that amendment, and lives yet regardless of it. The fed-
eral Constitution says, in its Fifth Amendment, that
private property shall not be taken for public use with-
out just compensation; but that restrains only the fed-
eral government, not the states so much so that when it
was alleged that private property was being invaded
by an act of the Mississippi legislature for public use,
without compensation, and an appeal was made to the
United States Supreme Court for protection, it was held
that even if the state constitution did declare that pri-
vate .property should not be taken for public use with-
out compensation, and the state court had sustained the
act, the Supreme Court had no power to review the de-
cision. 3 This function, to protect its citizens against
improper exercise of. the power, was alone with the
states. 4 Those cases were before the Fourteenth Amend-
ment; but it has not impaired this power of the states. 5
The United States can not interfere with the exercise by
the state of her right of eminent domain in taking for
public use land within her limits which is private prop-
erty. 6 Still, some cases have gone to the Supreme Court
upon the contention that the Fourteenth Amendment
was violated by the state, as almost any action of the
states may now be charged.
"This court has authority to re-examine the final judg-
ment of the highest court of a state in a proceeding to
3 Withers v. Buckler, 20 How. 84.
* Mills v. St. Clair, 8 How. 569.
* Wilson v. B. & P. R. R. 5 Del. Ch. 524.
Boora Co. v. Patterson, 98 U. S. 403.
466 RIGHTS AND PRIVILEGES UNDER
condemn private property for public use, in which, after
verdict, a defendant assigned as ground of new trial
that the statute under which the case was instituted and
the proceedings under it were in violation of the clause
of the Foureenth Amendment, forbidding a state to de-
prive any person of property without due process of law,
which ground of objection was repeated in the highest
state court; provided the judgment of the court, by its
necessary operation, was adverse to the claim of federal
right, and could not rest on any independent ground of
local law. The contention that the defendant had been
deprived of property without due process of law is not
entirely met by the suggestion that he had due notice
of the proceedings, appeared and was admitted to make
defense. The judicial authorities of a state may keep
within the letter of the statute prescribing forms of pro-
cedure in the courts, and give the parties interested the
fullest opportunity to be heard, and yet it might be that
its action would be inconsistent with that amendment.
A judgment of a state court, even if authorized by stat-
ute, whereby private property is taken for public use
without compensation, made or secured to the owner, is,
upon principle and authority, wanting in due process
of law required by the Fourteenth Amendment. . . In
a proceeding in a state court for condemnation of private
property for public use, the court having jurisdiction of
the subject-matter and parties, the judgment ought not to
be held in violation of due process of law enjoined by the
Fourteenth Amendment, unless some rule of law was pre-
scribed for the jury that was in absolute disregard of
TUB FOURTEENTH AMENDMENT.
the right of just compensation." 7 We have said that this
power of eminent domain is original in the states, unim-
paired by the Fourteenth Amendment, and some have
asserted the power of the state to condemn property to
public use without any compensation, and certainly be-
fore the Fourteenth Amendment the federal government
could not have prevented it; but the case just cited does
explicitly say that the state under the amendment must
provide for compensation. It utterly denies the power
of the state, were it to attempt to do so, to take property
for public use without compensation. Likewise other
cases. 8 In the last case complaint was made that possess-
ion was taken pending the proceeding, before final ad-
judication as to compensation; but the court held that
as the state constitution allowed property to be taken
when compensation was either "paid or secured," it would
follow the state court in holding the provision valid, and
that possession could be taken during the litigation as
to the amount of compensation, if compensation was ad-
equately made or secured. So in Cherokee Xation v.
Kansas Railway. 9
In the Backus case just cited it was held that as re-
gards what court should determine the question of com-
pensation or the form of procedure, all that is essential
is that "in some appropriate way, before some properly
constituted tribunal, inquiry shall be made as to the
amount of compensation; and when this is provided for
7 C. B. & Q. R. R. v. Chicago, 166 U. S. 226.
Searl v. School District, 133 U. S. 553, 562; Sweet v. Rechel,
159 U. S. 380, 398; U. S. v. Jones, 109 U. S. 513; Backus v. Fort
Street Co. 169 U. S. 557.
135 U. S. 659.
RIGHTS AND PRIVILEGES UNDER
there is that due process of law which is required by
that amendment."' The case also held that the settled
rule of the court in cases for the determination of the
amount of damages is that it adopts the construction
placed by the Supreme Court of the state upon its own
constitution and laws. In another case, Long Island
Water Supply Company v. Brooklyn, 10 it is held that
the compensation may be made by commissioners, whose
report may be made final, if the statute so provide, leav-
ing it open to the courts to inquire whether there was
any erroneous basis adopted by the commissioners in
the appraisal, or other errors of proceeding, and it was
not essential that there should be a jury to assess damages.
The same doctrine that it is not material what form of
procedure is adopted by state law, if it provide for com-
pensation and opportunity to be heard, is held in Lent
v. Tillson. 11
"There is no vested right in a mode of procedure es-
tablished by state law for the condemnation of property
for public use; but each succeeding legislature may es-
tablish a different one, provided only that in each is
preserved the essential element of protection." 12 In
the last case it is held: "The question of necessity for
taking property is not one of judicial character, but
rather one for determination of the law-making branch
of the government. Boom Co. v. Patterson, 98 U. S. 403 ;
U. S. v. Jones, 109 Id. 513 ; Cherokee Xation v. Kan-
sas Kailway, 135 Id. 641."
10 16G U. S. 685.
11 140 U. S. 316.
12 Backus v. Fort Street Co. 169 U. S. 557 ; Monongahela Co. r.
U. S. 148 U. S. 312.
THE FOURTEENTH AMENDMENT. 469
In Sweet v. Rechel 13 it was held that to abate a nui-
sance to preserve health an act may authorize a city to
take and fill up land, and provide for payment through
judicial proceedings, and that it was valid, and the fee
passed to the city, and the owner was only entitled to rea-
sonable compensation, to be ascertained in the manner pro-
vided by the act.
Condemning a Franchise. A franchise and property
entire of a chartered corporation supplying a city under
contract with water may be condemned for public use
of the city, under power of eminent domain, on payment
of compensation, including compensation for the termin-
ation of the contract. Though the contract was a contract,
it too, like any other property, was subject to be impaired
and destroyed under the power of eminent domain. 14
Not for Private Use. In another connection, to which
I refer, (p. 163) I have stated fully that the power of
eminent domain can be exercised for public purposes
only, and that it is a misapplication of that power, and
unconstitutional, to condemn one man's property for the
merely private use of another. This is fully shown in an
opinion by Justice Harlan in Chicago, Burlington &
Quincy K. R Co. v. Chicago. 15
The United States has Power of Eminent Domain to en-
able it to carry out the functions assigned to it, and can
condemn land within the states for its purposes. 16 This
13159 U. S. 380.
n Long Island Water Co. v. Brooklyn, 166 U. S. 685; Newbury-
port Water Co. v. City, 103 Fed. 584.
is 166 U. S. 235. So Missouri Co. v. Nebraska, 164 U. S. 403.
i Cherokee Nation v. Kansas Railway, 135 U. S. 641; Kohl T.
U. S. 91 U. S. (1 Otto), 367.
470 RIGHTS AND PRIVILEGES UNDER
gives right to condemn for postoffices, forts, arsenals,
dockyards, naval ations for any purpose within its
functions.
Appeal to United States Supreme Court in Condemnation
Cases, just as in other civil cases, from judgments of th*
highest courts of the states. 17
17 C. B. & Q. Co. v. Chicago, 166 U, & 226.
THE FOURTEENTH AMENDMENT. 471
Chapter 23.
GOVERNMENT BY INJUNCTION.
This is the term or name of late given to the exercise
by courts of equity of the process of injunction to pre-
vent interference by large bodies of workmen, in periods
of trouble between large manufacturing and transpor-
tation establishments and corporations, on the one hand,
and their employees and those sympathizing with them,
on the other hand, with the property or business of such
establishments or corporations, by boycotts, strikes, in-
ducing laborers to quit service, or not to engage in the
business, of the establishments named. Injunctions have
of late been very widely used in such instances, and have
excited widespread popular excitement and strong ani-
madversion upon the courts, and such injunctions have been
denounced as nothing less than "government by injunc-
tion," and unconstitutional, because denying the rights of
jury trial. Persons violating such injunctions have been
imprisoned for so doing, without jury trial as guilty of
contempt of the injunction process. The only question
is, Does injunction lie in such cases? The courts have
decided that it does; that these combinations of men in
large numbers, in some instances many thousands of men,
472 RIGHTS AND PRIVILEGES UNDER
stopping- railroads and impeding transit thereon, or in-
terfering with other means of transportation, such as
shipping, are public nuisances and subject to restraint
by injunction from ancient times. The courts have also
decided that when such bodies of men obstruct individ-
uals or large manufacturing or industrial corporations,
such as those mining coal or iron, or manufacturing iron
or other things in which are invested large amounts of
capital, and involving large property interests of indi-
viduals and corporations, they work irreparable injury
to private property and business, and, being carried on
by innumerable persons, most of whom are unknown,
any remedy by suits against individuals would involve
infinite multiplicity of suits and give inadequate remedy,
and that for these, and other reasons applicable to par-
ticular cases, the remedy by injunction is the only ad-
equate one. Many cases have of late arisen under this
head. It is not for this work to discuss them, except only
as they hold that the application by injunction does not
deprive them of due process of law. Upon this impor-
tant and grave subject I cite some of the cases. 1
i U. S. v. Debs, 64 Fed. 724 ; Consol. Steel Wire Co. v. Murry, 80
Fed. 811; Phelan Case, 62 Fed. 803; Crump v. The Commonwealth,
84 Va. 927 ; 23 S. E. 760, 10 Am. St. R. 895 ; Oneal v. Behanna, 182
.Pa. St. 236; 61 Am. St. R. 702, and full note; Mayer v. Journey
Stone Cutters, 47 N. J. Eq. 519, 20 Atl. 492; Casey v. Cincinnati
Typo. Union, 45 Fed. 135; Toledo, etc., Co. v. Pa. Co. 54 Fed. 730;
Vegelan v. Gunner 167 Mass. 92; Coons v. Christie, 53 N. Y. S. 668,
24 Miscel. R. 296; Matthews v. Shankland, 56 N. Y. S. 123, 25
Miscle. R. 604 ; McCall v. Ratchford, 82 Fed. 41 ; U. S. v. Sweeny,
95 Fed. 434; U. S. v. Elliott, 64 Fed. 27, 1 Am. & En? Dec. Equity,
590 and note; Coeur D'Alene Consol. Co. 51 Fed. 260; Hopkins v.
Oxley, 49 U. S. App. 709, 83 Fed. 912; Arthur v. Oakes, 24 U. S.
App. 239, 63 Fed. 310, 25 L. R. A. 414; Cook Trade and Labor
Combin. 77; Cogley on Strikes and Lockouts, 248, 296, 342; U. S.
v. Patterson, 55 Fed. 605.
THE FOURTEENTH AUEXDUEXT. 473
Contempt of Such Injunctions. The courts having held
that injunction lies in such cases as those above men-
tioned, of course a violation of such injunction consti-
tutes contempt, as it would in case of violation of any
other lawful process. It was strenuously contended that
in proceedings for such contempt, the demand found in
federal and state constitutions that no one should be
deprived of life, liberty or property without due process
of law, called for jury trial, as the cases involved liberty.
The jurisdiction in equity to award injunction being
granted or established by decision, I am unable to see
how the demand for a jury can be sustained ; for, as abun-
dantly appears by authority, the jurisdiction in equity
is as old as the hills, where it attaches, and equity pro-
ceeds without jury, the chancellor deciding on law and
fact, according to old practice, and therefore no jury is
deniandable in the main injunction suit. But how as
to the contempt proceeding, a separate one from the in-
junction, a criminal proceeding? As elsewhere shown
(p. 162), for centuries before the Fourteenth Amend-
ment or of the formation of the Union, all courts pos-
sessed the inherent power to vindicate their authority
and jurisdiction against contempt and resistance, by sum-
mary proceedings without jury, except where statute
otherwise directed, as a matter of necessity, else their
judgments would be mere vapor. 2
In a great and historic case 3 growing out of the cele-
brated Pullman sleeping car strike at Chicago, the United
States Supreme Court considered this question, and held
2 State v. Frew, 24 W. Va. 416; Ex ptfrte Robinson, 19 Wall. 505.
3 In re Debs, 158 U. S. 564.
474 RIGHTS AND PRIVILEGES UNDER
that in all courts there resides authority inherent to pun-
ish for contempt, without intervention by any other au-
thority, be it court or jury, it being sole judge of the ex-
istence or non-existence of contempt, without jury, and
that there is no constitutional right of jury trial in the
case. The court, by Justice Brewer, discussed the ques-
tion learnedly. It referred to the statement made in a
prior case: 4 "If it has ever been understood that pro-
ceedings according to the common law for contempt have
been subject to the right of trial by jury, we have been
unable to find any instance of it." Reference was also
made to another case approvingly, which held that "it
can not be supposed that the question of contempt of the
authority of a court of the United States, committed by
a disobedience of its orders, is triable, of right, by a
jury.'*
4Eilenbecker v. Plymouth, 134 U. 8. 36.
5 Interstate Commerce v. Brimson, 154 U. S. 489.
TED FOURTEENTH AMENDMENT. 475
Chapter 24.
INTERSTATE COMMERCE.
What has this to do with the Fourteenth Amendment?
Strictly speaking, nothing. However^ the Fourteenth
Amendment protects against state action liberty and guar-
antees the equal protection of the law. In preceding
pages we have impressed the principle that this guaranty
covers the right to labor and gain a livelihood, to buy, to
trade, to sell, to contract; but while these clauses are in
the Constitution, not only in the Fourteenth Amendment,
but also in the Fifth, and thus these rights are protected
against improper adverse action by both national and state
governments, we must remember that they are to be read
along with another important provision, that giving Con-
gress power "To regulate commerce with foreign nations,
and among the several states, and with the Indian tribes."
Does the Fourteenth Amendment repeal, as to liberty of
contract, this provision incorporated in the Constitution
eighty-five years before that amendment? It certainly
does not, because the amendment does not relate to the
power of the national government. Does the Fifth
Amendment ? It plainly was not so intended. How does
this commerce clause affect the right of the citizen to con-
476 RIGHTS AND PRIVILEGES UNDER
tract, to buy and sell and trade under the liberty clause of
the Constitution? The Supreme Court has said that the
provision in the Constitution "regarding the liberty of
the citizen is to some extent limited by this commerce
clause; and the power of Congress to regulate interstate
commerce comprises the right to enact a law prohibiting
the citizen from entering into those private contracts
which directly and substantially, not merely indirectly,
remotely, incidentally and collaterally, regulate, to a
greater or less degree, commerce among the states." 1
Therefore, when we talk about the right of contract under
the liberty clauses of the Constitution we must inquire
whether the contract, or transaction, or combination inter-
feres with interstate commerce; that is, directly and sub-
stantially interferes therewith. It thus becomes appro-
priate to ask, What is commerce among the several
states, commonly called interstate commerce? For it is
an exclusive power of regulation and legislation which the
Constitution accords to the nation over the rights of states
and individuals ; and the anti-trust act of Congress, July
2, 1890, declares: "Every contract, combination in the
form of trust or otherwise, or conspiracy, in restraint of
trade or commerce among the several states, or with for-
eign nations, is hereby declared to be illegal. Every per-
son who shall monopolize, or attempt to monopolize, or
combine or conspire with any other person or persons, to
monopolize any part of the trade or commerce among the
several states, or with foreign nations, shall be deemed
guilty of a misdemeanor." These provisions prevent cor-
i Addyston Pipe Co. v. United States, 175 U. S. 211
THE FOURTEENTH AMENDMENT. 477
j'orations and individuals from contracting, dealing or
combining in such manner, and in those things, as will di-
rectly and substantially affect prejudicially such com-
merce. What is interstate commerce? "Interstate com-
merce consists of intercourse and traffic between the citi-
zens or inhabitants of different states, and includes not
only the transportation of persons and property and the
navigation of public waters for that purpose, but also the
purchase, sale and exchange of commodities." 2 Such
being the general principles, it will only be necessary in
each case to say whether the contract, combination or con-
spiracy does interfere with interstate commerce. In deter-
mining this we must have an eye to rules of test laid down
by the Supreme Court The cases involving this subject
are infinite, in state and national courts, and it is imprac-
ticable to give them as instances; but the Supreme Court
being the guiding and controlling forum in this matter,
we may refer to some of the cases decided by it as illus-
trating the general principle. In the Addyston Case just
referred to, the court said that under the commerce clause
of the Constitution Congress "may enact such legislation
as shall declare void and prohibit the performance of any
contract between individuals or corporations where the
natural and direct effect of such a contract shall be, when
carried out, to directly, and not as a mere incident to other
and innocent purposes, regulate to any extent interstate
or foreign commerce." The court further said that under
the act of Congress above referred to "any agreement or
- Addyston Pipe Co. v. United States, 175 U. S. 211. See also
United States v. E. C. Knight Company, 156 U. S. 1; Hopkins v.
United States, 171 U. S. 578
478 RIGHTS AND PRIVILEGES UNDER
combination which, directly operates, not alone upon the
manufacture, but upon the sale, transportation and deliv-
ery of an article of interstate commerce, by preventing or
restricting its sale, thereby regulates interstate commerce
to that extent, and thus trenches upon the power of the
. national legislature, and violates the statute. When the
direct, immediate and intended effect of a contract or com-
bination among dealers in a commodity, is the enhance-
ment of the price, it amounts to a restraint of trade in the
commodity, even though contracts to buy it at the en-
hanced price are being made."
There have been numerous cases under this act. The
Supreme Court has given it a very broad and salutary
effect. A number of railroad companies formed an asso-
ciation, called the Trans-Missouri Freight Association,
andmade an agreement by which they were to have no com-
petitive rates within a large area of country, but were to
charge those rates agreed upon by their committee. It was
claimed that the act of Congress related only to contracts
relative to the manufacture and sale of commodities ; but
the court held that a contract to regulate rates of transpor-
tation fell within the act, as railroads engaged in inter-
state commerce, and their charges pertained thereto, and
the combination was held one injuring trade as suppress-
ive or depressive of competition, and that the act of Con-
gress applied to all contracts in restraint of commerce
without exception or limitation, and not merely to those
in which the restraint is unreasonable. 3
In another case 4 numerous railroad companies running
3 United States v. Trans-Missouri, 166 U. S. 290
* United States v. Joint Traffic Assoc., 171 U. S. 505
THE FOURTEENTH AMENDMENT. 479
from Chicago to the Atlantic formed an association, and
agreed that it should have control over traffic passing cer-
tain points, and fix rates, and that no member of the as-
sociation should deviate therefrom. They even agreed
that the managers should have power to adopt a course
of treatment for companies that were not members of the
association for departure from those rates. The Supreme
Court held the combination to be contrary to the act of
Congress, and said that Congress "has power to say that
no contract or agreement shall be legal, which shall re-
strain trade and commerce by shutting out the operation
of the general law of competition." In both cases it was
claimed that the agreements were for the mutual protec-
tion of the property of the companies from ruinous com-
petition, to govern all by system and regulation condu-
cive to business success, and entirely consonant with Amer-
ican liberty of contract and trade under the Constitution,
and that the act of Congress was unconstitutional ; but the
validity of the act was sustained. In a later case 5 this
attack upon the act was repeated with the same result of
its upholdment. In this case a number of companies pro-
ducing iron pipe combined in an association to raise prices
over a large territory, and to sell their pipe only at prices
agreed upon by their joint committee. The court de-
clared anew the common law doctrine that all contracts to
raise prices and restrain trade and competition are void,
and that as the Constitution gave Congress authority to
make all and any laws touching interstate commerce, it
might condemn and avoid any contract hurting the free-
6 Addyston Pipe Co. v. United States, 175 U. S. 211
480 RIGHTS AXD PRIVILEGES UNDER
dom of interstate commerce. Thus the constitutionality
of such legislation by^Congress so far, and only so far, as
interstate commerce is concerned, is settled. But it seems
that there could be no question of the power. The act was
said to be against the liberty clause of Amendment V;
but before it came, such a combination was void by com-
mon law, and as Congress is vested with full law-making
power over the whole field of interstate commerce, it could
prohibit such contracts, since that amendment was not in-
tended to take away antecedent pow r er in Congress.
Upon analogous principles we are authorized to say that
state constitutions containing this liberty clause and the
Fourteenth Amendment do not prohibit states from legis-
lating against those combinations, trusts and agreements
which had no validity or recognition by law before those
constitutions were made. On pages 82, 130 and 371 I
have stated the common law doctrine on this subject.
In what has been said it will be seen, in outline, what
are the powers of Congress in condemning and punishing
contracts, combinations, trusts, conspiracies and monopo-
lies damaging interstate and foreign commerce. But
what are the powers of the states as to their internal com-
merce ? Just as wide as those of Congress as to interstate
commerce, if not wider. The case of Addyston Pipe
Company v. United States, just cited, limits the power of
Congress to interstate and foreign commerce, conceding
state power against those things damaging trade, com-
merce, business, open competition, within the states. On
page 371 we showed how states may deal with such un-
lawful contracts, trusts and combinations, citing notable
state cases defining what are condemnable contracts, com-
TUB FOURTEENTH AUEXDUEXT. 481
binations and trusts hurtful to trade and public welfare,
they being practically in nature the same as those affect-
ing interstate commerce ; but this power in. both national
and state legislation to restrain freedom of contract is not
illimitable ; for if it were, what contract would not be sub-
ject to its influence ? In United States v. Trans-Missouri
Company 6 the declaration is very broad, that any con-
tract or agreement in restraint of commerce "without ex-
ception or limitation/' and not merely those "in which the
restraint is unreasonable," are under the brand of the act
of Congress; but in Addyston Pipe Company v. United
States, 7 though the court does not change the real spirit
of former cases, yet it modifies the breadth of their ex-
pression by the emphatic proposition that, to fall under
the censure of the act, the agreement must "directly and
substantially, and not merely indirectly, remotely, inci-
dentally, regulate, to a greater or less degree, commerce
among the states." To the same effect is Hopkins v.
United States. 8 To condemn the agreement it is not nec-
essary that it should be the explicit intent to affect com-
merce; for if the "natural and direct effect of such con-
tract shall be, when carried out, to directly, and not as a
mere incident to other and innocent purposes, regulate to
any extent, interstate or foreign commerce," it comes
under the act.
We must not here lose sight of the rule that as between
individuals each has a right to compete with the other, to
draw away his custom, to outstrip him in the raco of con-
166 U. S. 290
- i:r, r. s. 211
8 171 U. S. 578
482 RIGHTS AND PRIVILEGES UNDER
testation, and even thereby ruin his fellowman; for that
is freedom of business, of contract, of earning a living,
freedom of competition. Every one has a right to enlarge
his business, even though by means of greater capital,
superior facilities and capacity he monopolizes business
and ruins his competitor. If the business is lawful,
even if it overshadow others, who can prevent it in a land
of constitutional law, where the constitutions declare that
there shall be liberty ? Is there too much liberty in Amer-
ica ? If so, blame these constitutions. The mere opera-
tion by lawful means of lawful business, however hurtful
to others, is not actionable. It may cause damage, but it
is damage without violation of another's right. Whatever
one has a right to do, another can not have right to com-
plain of. If one operator design to injure another in
trade, that design will not prove him to be doing a wrong.
"A lawful act is not actionable, though it proceeds from
malicious motives." 9 Such a case is one of mere damnum,
but it is absque injuria. We must nicely discriminate be-
tween damnum and injuria. We commonly use the words
"injury" and "damage" as equivalents, but in the rule
above stated these Latin words are wide apart. Damnum
means only harm, damage; while injuria comes from in,
against, and jus, right, and means something done against
the right of the party, producing damage, and has no ref-
erence to the fact or amount of damage. Unless a right
is violated, though there be damage, it is damnum absque
injuria. There is no right better established under the
Cooley, Torts, 830; Raycroft v. Tayntor, 33 L. R. A. 235; Glen-
don Iron Co. v. Uhler, 75 Pa. St. 467; Chipley v. Anderson, 11 Am.
St. R. 370
THE FOURTEENTH AMENDMENT. 433
Lw of business than the right of trade competition. 10
Thus small operators, individual or corporate, have no
legal ground of complaint if large operators, by means of
large capital, or by union of capital, outstrip and sub-
merge them in the ocean of effort. The lion has stretched
out his paws and grabbed in more prey than others; but
that is the natural right of the lion in the field of pursuit
and capture. Pity that the lion exists, his competing
animals may say, his suffering prey may say, will say;
but natural law accords the right; it is given him by the
Maker for existence. But the moment the arrangements
of capitalists wound the public by depressing trade, in-
creasing prices of things necessary for the publio, like
commodities and transportation, or suppress competition,
then those arrangements assume another cast, and come to
be against public policy. The loudest outcry against cor-
porations and trusts comes from those who are outstripped
in the field of legitimate competition ; but no free govern-
ment can interfere between these competitors in the de-
vouring race of pursuit and capture characterizing our
day. It may be that our humble forefathers were happier
in their frugal life than we, and applied the short span of
time given man to better purpose. They moved from green
pasture to green pasture watching their flocks, their chief
dependence for food and raiment, and were not worn
through every day's life with the heavy yoke of the rail-
road or corporation office, the banker's desk with his ach-
ing head and heart, the anxiety and burden of the presi-
dent of the great insurance and manufacturing company.
i0
TABLE OF CASES CITED.
Page.
Abbot v. National Bank (179 U. S. ) 119
Ableman v. Booth (21 How. 506) 51, 404, 439, 445, 451
Abraham v. Casey ( 179 U. S. 210) 179, 395, 396
Adams v. Brennan ( 177 111. 194) 375
Adams v. Cole (95 Mo. 501 ) 258
Adams Express Co. v. Ohio (165 U. S. 194) 305, 353
Addyston Pipe Co. v. United States (175 U. S. 211),
129, 130, 133, 373, 377, 476, 477, 479, 480, 481
Ah Yup, In re (5 Sawy. (U. S.) 155) 32, 33
Aldrich v. Blatchford (56 N. E. 700) 250
Aiferitz v. Borgwardt ( 126 Cal. 201 ) 412
Allen v. Allen (16 L. R. A. 646) 412
Allen v. Hanks (136 U. S. 300) 274
Allen v. State (166 U. S. 138) 287
Allgeyer v. Louisiana (165 U. S. 578 ) 115, 171
Alsberry v. Hawkins ( 33 Am. Dec. 546) 21
American Ins. Co. v. Canter ( 1 Pet. 511 ) 36
American Pub. Co. v. Fisher ( 166 U. S. 464) 39, 289
American Sugar Co. v. Louisiana (179 U. S. 89)
323, 339, 422, 423, 426, 430
Anderson v. Anderson (57 N. E. 333) 254
Anderson v. Company ( 62 Fed. 46) 89
Anderson v. Henry (45 W. Va. 319) 143, 161
Anderson v. United States (171 U. S. 604) 486
Andrews v. Swartz (156 U. S. 272) 289, 328, 429
Apex Trans. Co. v. Garbade ( 32 Ore. 582 ) 295
Arkadelphia v. Clark (27 Am. & Eng. Corp. Cas. 586) 217
Armstrong v. Morrill (14 Wall. 120) 262
Arndt v. Griggs (134 U. S. 316) 179, 252, 258, 396
Arrowsmith v. Harmoning (118 U. S. 194) ; 429
Arthur v. Oakes (63 Fed. 310) 472
Association v. Crescent City Co. ( 1 Abb. 398 ) 112
Astor v. New York (62 N. Y. 580) 354
493
494 TABLE OF. CA8E8.
Page.
Asylum v. New Orleans (105 U. S. 362) 366
Atchison, Topeka & S. Fe v. Campbell (59 Pac. 1051 ) 241
Atchison, Topeka & S. Fe Co. v. Clark (60 Kan. 826) 335
Atchison, Topeka & S. Fe Co. v. Mathews (174 U. S. 96),
180, 325, 335, 338
Atlantic City R. Co. Re (164 U. S. 633) 448
Attorney General v. Jochim (99 Mich. 358) 147, 165
Austin v. State (101 Tenn. 563) 213
Austin v. Tennessee (179 U. S. 343) 176, 178, 213, 490, 491
Avery v. Popper ( 179 U. S. 305) 423
B.
Bacon v. Texas (163 U. S. 207) 400, 404, 421, 422
Backus v. Fort Street Co. (169 U. S. 557),
164, 294, 312, 408, 467, 468
Bagwell v. Atlanta (109 Ga. 611 ) .239
Baldwin v. Franks ( 120 U. S. 678 ) 462
Baldwin v. Kansas (129 U. S. 52) 430
Ballou v. Hudson ( 13 Grat. 672 ) 264
Baltimore & Ohio Railroad Co. v. Baugh (149 U. S 368) 407
Baltimore & Ohio Railroad Co. v. P. W. K. Co. (17 W. Va. 813),
165
Banholzer v. New York Ins. Co. (178 U. S. 402) 422, 424
Bank v. County of Yankton (101 U. S. 129 ) 34, 39, 79
Bank v. Mayor (7 Wall. 16) 159
Bank v. New York City (2 Black. 620) 150, 159
Bank v. Sarlis ( 29 Am. St. R. 185 ) 149, 216
Bank v. State (24 Am. Dec. 517 ) 142
Barbier v. Connolly (113 U. S. 27) . .107, 168, 215, 228, 320, 332, 428
Barclay v. Barclay ( 184 111. 471 ) 162, 272, 286
Barings v. Dabney ( 19 Wall. 1 ) 294
Barker v. Bigelow ( 15 Gray 130) 345
Barlow v. Daniels (25 W. Va. 512) 145, 286
Bauman v. Ross (167 U. S. 548 ) 164
Baumgartner v. Hasty (8 Am. & Eng. Corp. Cas. 353) 216
Bauserman v. Blunt (147 U. S. 647 ) 408
Beardly v. New York, L. E. & W. Co. ( 162 N. Y. 230) 195
Beatty v. Fenton (135 U. S. 244) 404
Beck v. Magillis (9 Barb. 35) 29
Beer Co. v. Massachusetts (97 U. S. 25) 169, 170, 178, 369
Bells Gap R. R. Co. v. Pennsylvania (138 U. S. 232),
150, 152, 324, 339
Belmont Bridge v. Wheeling ( 138 U. S. 287 ) 362
Bennett v. Davis (37 Atl. 864) 287
TABLE OF CASES. 495
Page.
Bergman v. Backer (157 U. S. 655) 290, 418, 434
Binghampton Bridge Case ( 3 Wall. 51 ) 350
Bishop v. American Preserve Co ( 157 111. 284) 372
Bissell v. Davisson (29 L. R. A. 251 ) .225
Bissell v. Davisson (65 Conn. 183) 94
Black v. Jackson (177 U. S. 349) 40, 286
Black Hawk v. Springer ( 58 Iowa 417 ) 308
Black v. Smith ( 13 W. Va. 780) 270
Blair v. Ridgely (97 Am. Dec. 248) 108
Blake, In re (175 U. S. 114) 447
Blake v. McClung (172 U. S. 239) 70, 350
Blanchard v. Raines (20 Fla. 467 ) 286
Board v. Caldwell ( Ohio ) 225
Board v. Louisiana (179 U. S. 622 ) 397, 399
Bolln v. Nebraska (176 U. S. 83) 37, 55, 144, 290, 295
Bolt v. Stennett (8 L. R. A. 606) 183
Boom Company v. Patterson (98 U. S. 403) 465, 468
Boske v. Comingore ( 177 U. S. 459) 442
Boswell v. Otis (9 How. 348) 253, 263
Bowler v. Huston ( 30 Grat. 266) 256
Boyd v. Alabama (94 U. S. 645) 409
Boyd v. Nebraska (143 U. S. 159 ) 19
Boyd v. Thayer (143 U. S. 135) 32, 37, 39
Boyle v. Zacharie ( 6 Pet. 648 ) 393
Bracewell v. People ( 147 111. 66) 113, 206
Bradwell v. United States ( 16 Wall, 130) 56, 81
Brass v. Stoeser (153 U. S. 391 ) 193
Brewer v. Marshall (19 N. J. Eq. 537 ) .132
Brewster v. People ( 183 111. 143) 311
Breyer v. State ( 102 Tenn. 103) 214
Bridge Company v. County (41 W. Va. 658 ) 352
Bridge v. United States (105 U. S. 470) 365*
Brimmer v. Rebman (138 U. S. 78) 489
Brine v. Insurance Company (96 U. S. 634) 394, 395
Bristol v. Washington Co. (177 U. S. 133) 302, 304
Brodis v. Brodis ( 86 Fed. R. 951 ) 32
Bronson v. Kinsie (1 How. 311) 294, 295
Brown v. Dexter ( 66 Cal. 39 ) 26
Brown, Ex parte (70 Am. St. R. 743) 81
Brown Company v. Hunt ( Iowa 39, L. R. A. 291 ) 350
Brown v. Maryland ( 12 Wheat. 419 ) 159
Brown v. New Jersey ( 175 U. S. 172) 144, 282, 290, 293 295
Brown v. Schilling (9 Md. 82) 29
Brown v. Smart (145 U. S. 454) 415
Brunswick v. Bank (99 Fed. 635) 396
Bucher v. Cheshire (125 U. S. 555) 393, 394, 396, 417, 428
496 TABLE Of VAXES.
Page.
Budd v. New York (143 U. S. 517 ) 128, 193, 194
Bullock v. State ( 47 Atl. 62 ) 328
Bunnel v. Bunnel, (25 Fed. 214) 253, 254, 263
Burdett v. Allen (35 W. Va. 347 ) 226
Burgess v. Seligman (107 U. S. 20) 406, 416
Burlington v. Swartzman (52 Am. K. 571 ) 148
Burris, In re (136 U. S. 586) : -.439
Bush v. Kentucky (107 U. S. 110) 329, 427
Butcher's Union Co. v. Crescent City Co. (Ill U. S. 755) 111, 115
Butler v. Eaton (141 U. S. 240) 340
Butler v. Toledo (5 Ohio St. 225) 354
Butz v. City (8 Wall. 587 ) 392
Byers v. McAuley (149 U. S. 608) 402
C
Caldwell v. Texas (137 U. S. 692 ) 418
Camden Co. v. Stetson (177 U. S. 173) 239
Campbell v. Evans (45 N. Y. 356) 264
Campbell v. Holt (115 U. S. 620) 275
Capital Traction Co. v. Hof ( 174 U. S. 1 ) 37, 145
Carpenter v. Bailey (60 Pac. 162) 264
Carter v. Bennett ( 6 Fla. 214 ) 265
Carter v. Texas (177 U. S. 442) 83, 328
Casey v. Cincinnati Typo. Union (45 Fed. 135) 472
Cass Farm v. Detroit (83 N. W. 108 ) 165
Castillo v. McConnico (168 U. S. 682) 158, 166, 283
Cecil v. Clark (44 W. Va. 660) 286
Central Land Co. v. Laidley (159 U. S. 103)
283, 349, 399, 400, 415
Central Loan Co. v. Campbell ( 173 U. S. 84) 335
Central Nat. Bank v. Stevens (169 U. S. 432) 427
Central Railroad v. Wright (164 U. S. 327 ) 363
Champaign Co. v. Church (62 Ohio St. 318) 225
Chappell, etc. Co. v. Sulphur Mines Co. (172 U. S. 474) 279
Charles v. City (98 Fed. 166) 291
Charles River Bridge v. Warren Bridge (11 Pet. 420) 137, 353
Charlotte, etc. Co. v. Gibbs (142 U. S. 386) 180
Cheek v. City of Aurora (4 Am. & Eng. Corp. Cas. 512) 216, 217
Cheely v. Clayton ( 110 U. S. 701 ) 253
Cherokee Nation v. Kansas Railroad (135 U. S. 641) . .467, 468, 469
Chesapeake & O. Co. v. Commonwealth (51 S. W. 160) 356
Chesapeake & O. Co. v. Kentucky (179 U. S. 388) 87, 88, 356
Chesapeake & 0. R. R. Co. v. Miller (19 W. Va. 408) 354, 368
ce & O. R. R. Co. v. White (111 U. S. 134) 426
TABLE OF CA8E8. 497
Page.
Cheever T. Wilson (9 Wall. 108) 253, 254
Chicago, B. & Q. Co. v. Chicago (166 U. S. 224),
97, 163, 178, 282, 295, 319, 467, 469, 470
Chicago v. Iowa (94 U. S. 155) 185, 187, 192
Chicago, etc. Co. v. Minnesota (134 U. S. 418) 192, 194, 197, 342
Chicago, B. & Q. Co. v. Nebraska (170 U. S. 57) 336, 399
Chicago Life, etc. Co. v. Needles (113 U. S. 574) 279
Chicago, etc. Co. v. People ( 181 111. 270) 211
Chicago, etc. Co. v. Sturm ( 174 U. S. 710) 266
Chicago Co. v. Wilman ( 143 U. S. 339 ) 188
Chinese Exclusion Case (130 U. S. 581 ) 35, 36, 37
Chipley v. Anderson (11 Am. St. R. 370) 482
Citizens' Bank v. Owensboro (173 U. S. 636) 365, 366, 369
Citizens' Security Co. v. Wheeler (48 Md. 455) 348
City of Atlanta v. Stein (111 Ga. 318) 375
City of Cleveland v. C. C. & St. L. Co. (93 Fed. 119) 216, 217
City of Chicago v. Netcher (183 111. 104) 310
City v. Netcher (55 N. E. 707 ) 292
City v. Manhattan ( 178 111. 372) 225
City v. Railroad Company ( 93 Fed. 119) 148
City v. Smyth (60 Pac. 1120) 222
City v. Trotter (32 Am. & Eng. Corp. Cas. 372) 213
City of Richmond v. Richmond & D. R. Co. (21 Grat. 604) . .354, 355
Civil Rights Cases (109 U. S. 3),
46, 84, 88, 93, 108, 116, 330, 385, 389, 444, 454, 459
Claflin v. Houseman (93 U. S. 130) 404
Claiborne Co. v. Brooks (111 U. S. 400) 396
Claybrook v. City (23 Fed. 634) 92
Clarke v. Clarke (178 U. S. 186) 179, 395
Clark, Ex parte ( 100 U. S. 399) 78
Clark v. Graham (6 Wheat. 577) 395
Clark v. Kansas City (176 U. S. 114) 339
Clark v. Maryland Institute (87 Md. 643) 92
Clarksburg Electric Co. v. City of Clarksburg (47 W. Va. ), 1
364
Clark's Estate, Tn re (46 Atl. 127) 333
Clark v. Russell (97 Fed. 900) 179, 343
Coe v. Errol (116 U. S. 517 ) 170, 303
Coeur D'Alene Consol. Co. v. Miners' Union (51 Fed. 260) 472
Cofer v. Riseling (55 S. W. 235 ) 233
Coger v. Coger ( 35 S. E. 823) 253. 263
Cohens v. Virginia (6 Wheat. 264) 47, 49, 51, 404, 426
Cole v. Cunningham ( 133 U .S. 107 ) 256
Cole v. Kegler ( 64 Iowa 59) 174
Cole v. La Grange ( 113 U. S. 1 ) 160
Collector v. Day (11 Wall. 113) 159, 384
498 TABLE OF CASES.
Page.
Collins v. State (60 S. W. 42) 328
Columbit Bank v. Okely ( 4 Wheat. 235 ) 141
Columbus, etc. Co. v. Wright (151 U. S. 470) 349
Comitis v. Parkson (56 Fed. 556) 28
Com. Bank v. Buckingham ( 5 How. 317 ) 399
Commonwealth v Berry ( 155 Mass. 117 ) 205
Commonwealth v. Byrne (20 Grat. 165) 154, 158
Commonwealth v. Charity Hospital (47 Atl. 980) 310
Commonwealth v. Douglass ( 100 Ky. 116) 178, 181
Commonwealth v. Hubey ( 172 Mass. 58 ) 213
Commonwealth v. Roberts ( 155 Mass. 281 ) 229
Commonwealth v. Sheckles (78 Va. 36 ) 301
Conner v. Elliott ( 18 How. 591 ) 45, 68
Consol. Coal Co. v. People (186 111. 134) 211
Cousol. Steel Wire Co. v. Murry (80 Fed. 811 ) 472
Contzen v. United States (179 U. S. 191 ) 37
Converse, In re (137 U. S. 624 ) 385
Cook v. Harris (61 N. Y. 448) 148, 216
Cook v. Hart ( 146 U. S. 183) 438, 445
Cook v. State (110 Ala. 40) 219
Coons v. Christie (53 N. Y. S. 668 ) 472
Cooper v. Reynolds ( 10 Wall. 308) 252, 257
Cope v. Cope (137 U. S. 682) 39
Corbett v. Nutt ( 10 Wall. 464) 247
Corfield v. Coryell (4 Wash. C. C. 101 ) 63, 68
Corn v. Erie Co. (1 Am. R. 399) 108
Cory v. Carter ( 14 Ind. 337 ) 91
Covington Bridge Co. v. Kentucky (154 U. S. 204) 219, 360, 491
Covington v. Sanford (164 U. S. 578) 43, 351
Cox v. Gilmer (88 Fed. 343) 146
Coy, In re (127 U. S. 731 ) 78
Crandall v. Nevada (6 Wall. 35) 67, 150, 159, 352
, Crenshaw v. Slate River Co. ( 6 Rand. 215) 360
Cross v. Harrison ( 16 How. 180) 39, 41
Crowley v. Christensen (137 U. S. 86) 224, 299, 300
Crump v. Commonwealth (84 Va. 927 ) 472
Cuddy Case (131 U. S. 280) 439
Gumming v. County Board (175 U. S. 528 ) 92
D
Danville v. Pace (25 Grat. 1 ) 294, 307, 313
Darcy v. Allen (11 Coke 84) 371
Dartmouth College Case (4 Wheat. 518) 140, 359, 360, 361, 366
Davidson v. New Orleans (96 U. S. 97),
12, 45, 139, 140, 145, 146, 164
TABLE OF CASES. 499
Davis v. Beason (133 U. S. 333) 120
Davis v. Burke ( 179 U. S. 399) 54, 144, 422, 430
Davis v. Massachusetts (167 U. S. 43) 166
Davis v. Settle (43 \V. Va. 19) 286
Davis v. Texas ( 139 U. S. 651 ) 421, 430
Dawson v. Lee (83 Ky. 49) 91
Dayton v. Barton (53 S. W. 970)
D.-bman v. Southern Bell Tel. Co. (36 S. E. 269) 427
Debs, In re (158 U. S. 564) 129, 147, 162, 286, 473
Debs v. United States (64 Fed. 724) 472
Decie v. Brown ( 167 Mass. 290) 224
Deems v. Baltimore (80 Md. 164) ^ . . .223
Dent v. West Virginia (129 U. S. 114) 81, 143, 199, 239
Denver v. Bach (58 Pac. 1089) 94
Denver v. Mullen (4 Am. & Eng. Corp. Cas. 304) 217
Dequasie v. Harris ( 16 W. Va. 345 ) 166
DeVaughn v. Hutchinson (165 U. S. 566) 395
Dewey v. Des Moines (73 U. S. 193) 164, 250
Dey, Matter of (9 N. J. Ch. 181) 308
Diamond Match Co. v. Roeber ( 106 N. Y. 473) 377
Dick Duncan v. McCall (139 U. S. 449) 396, 430, 434
Dickinson v. Hoomes (8 Grat. 410) 250, 265
Distilling Co. v. People (156 111. 448) 372
Dobbins v. Erie County ( 16 Pet. 435 ) 159
Dodge v. Woolsey ( 18 How. 331 ) 366
Donnell v. State (48 Miss. 661 ) 459
Dorsey v. Brigham (52 N. E. 303) 32
Douglas v. Commonwealth (97 Va. 397 ) 154
Douglass v. Insurance Co. (138 N. Y. 309).
Douglass v. Kentucky ( 168 U. S. 488 ) 181
Douglass v. Pike County (101 U. S. 677), 408, 409, 411, 413
Dow v. Biedleman (125 U. S. 680) 188
Dowdell's Case (61 Am. St. R. 290) 308
Dred Scott Case (19 How. 395) 27, 30, 31, 35, 38
Duncan, In re (139 U. S. 449) 396, 430, 434
Duncan v. Missouri (152 U. S. 377) 56, 324
E
Eames v. Savage ( 52 Am. R. 751 ) 143
Easton R. R. Co. v. Easton (133 Pa. 505 \ 216
Eaton v. West Virginia (91 Fed. 760) 434
Eberle, In re (98 Fed. 295) 127
Eden v. People (161 111. 296) 214
Edwards v. Kearzpy (96 U. S. 595) 294
500 TABLE OF CASES.
Page.
Eight-Hour Labor Law, In re (21 Colo. 29) 214
Eilenbecker v. District Court ( 134 U. S. 31) 147, 162, 286
Elder v. Richmond (58 Fed. 536) 425
Eldridge v. Trezevant ( 160 U. S. 452) 288
Elk v. Wilkins (112 U. S. 94) 18, 30
Elliott v. McCormick ( 144 Mass. 10) 51
Elmendorf v. Elmendorf (44 Atl. 164) 263
Erie Company v. Pennsylvania (21 Wall. 492) 354
Essex, etc. v. Skinkle ( 140 U. S. 334 ) 118
Eustis v. Bolles ( 150 U. S. 361 ) 421, 422
Eustis v. City of Henrietta (39 S. W. 567 ) 287
Evans v. Johnson (39 W. Va. 299 ) 281
Evans-Snider-Buel Co. v. McFadden ( 105 Fed. 293) 313
F
Fairfield v. County (100 U. S. 47 ) 396
Fallbrook v. Bradley (164 U. S. 112) 143, 150, 154, 287
Farmers' Bank v. Gunnel (26 Grat. 131 ) 271
Ferguson v. Milender (32 W. Va. 30) 256
Fertilizing Co. v. Hyde Park Co. (97 U. S. 659) 230, 363, 369
Fielden v. Illinois (143 U. S. 452) 349, 419
Fishback v. Western Union (161 U. S. 96) 403
Fisher v. City (56 Pac. 520) 241
Fisk v. Jefferson Police Jury (116 U. S. 131) 403
Fitzpatrick v. United States (178 U. S. 304) 311
Flaherty, Re (27 L. R. A. 529) 225
Fleming v. Page (9 How. 603) 42
Folmar v. Curtis (27 Am. & Eng. Corp. Gas. 578 ) 226
Folsom v. Ninety-six (159 U. S. 611 ) 409, 416
Fonda, Ex parte (117 U. S. 516) 438
Fong Yue v. United States (149 U. S. 698) 36, 37
Ford v. Delta, etc. Co. ( 164 U. S. 662 ) 364
Forsythe v. Hammond (166 U. S. 506) 397, 425, 428
Fowler v. Lewis (36 W. Va, 112) 245
Fox v. State (89 Md. 381) 218, 220
Frederich, In re (149 U. S. 70) 435
Freeman v. Alderson (119 U. S. 185) 257
Freeport Co. v. City ( 186 111. 179 ) 193
French v. French (52 S. W. 517 ) 30
Frorer v. People (141 111. 171) 205
Frost v. Chicago (178 111. 250) 171
TABLE OF CASES. 501
G
Page.
Gaines v. Fuentes (92 U. S. 10) 263
Galveston, etc. v. Texas ( 170 U. S. 226) 425
Gee Hop, In re (71 Fed. 274) 32
Geer v. Connecticut (161 U. S. 519 ) 127
Gelpcke v. Dubuque ( 1 Wall. 175) 392, 409, 410, 415
Georgia Banking Co. v. Smith (128 U. S. 174) 188, 192 ;
Gibbons v. Ogden (9 Wheat. 1 ) 129 \
Gibson v. Mississippi (162 U. S. 565) 113, 330, 421 '
Gilbert v. Ackerman (159 N. \. 118) 278
Gilchrist v. Land Company (21 W. Va. 115) 256
Gilmer v. Hunnicut (35 S. E. 521 ) 164, 312
Giozza v. Tiernan (148 U. S. 657 ) 79, 80, 224
Gladson v. Minnesota (166 U. S. 427 ) 218
Gleason v. Tacoma ( 16 Wash. 412 ) 234
Glendon Iron Co. v. Uhler (75 Pa. St. 467) 482
Glenn, Ex parte ( 103 Fed. 947 ) 438
Goetze & Co. v. United States ( 103 Fed. 72) 42
Gold washing Co. v. Keyes (96 U. S. 199) 423, 425
Goodcharles v. Wigeman (113 Pa. St. 431 ) 203, 207
Gosnell v. State (52 Ark. 228) 82
Grand Lodge v. New Orleans, 166 U. S. 143) 368
Granger Cases, The (94 U. S. 155) 164, 185, 187, 188
Graves v. Battle Creek (95 Mich. 266) 238
Green v. Biddle ( 8 Wheat. 1 ) 39
Green v. Briggs ( 1 Curtis C. C. R. 311 ) 158
Green, In re (141 U. S. 325 ) 446, 448
Green, In re ( 134 U. S. 377) 74
Green v. Neal (6 Pet. 291 ) 407
Greenough v. Greenough (11 Pa. St. 489) 296
Grice, In re ( 79 Fed. 627 ) 351
Griffin v. Cunningham (20 Grat. 31) 291, 296, 297
Gross v. United States Mortgage Co. (108 U. S. 477) . .271, 313, 345
Gulf, etc. Railway Co. v. Ellis (165 U. S. 150) 324, 335
Gum v. Hubbard ( 10 Am. St. R. 312) 29
Gundling v. Chicago (177 U. S. 183) 281, 299
Gundling v. Chicago (176 111. 340) 281
Gusman v. Marero (180 U. S. 81, 21 Sup. Ct. 293) 434
H
Racket v. State (105 Ind. 250) 199
Hagar v. Reclamation Dist. (Ill U. S. 701) 141, 147, 152, 164
Raines v. Carpenter (91 U. S. 254) 424
Hale v. La wrence ( I Zabrisk. 714 ) 173
502 TABLE OF CASES.
Page.
Hall v. De Cuir (95 U. S. 485) 89, 90
Hall v. Laiming (91 U. S. 160) 256
Hallinger v. Davis (146 U. S. 314) 143, 162, 283, 311
Hamilton v. Brown (161 U. S. 256) 256
Hamilton Gas Co. v. Hamilton ( 146 U. S. 258 ) 363, 364, 365, 369
Hancock v. Yaden ( 121 Ind. 366) 208
Harbison v. Knoxville Iron Co. (103 Tenn. 421) 203, 208, 209
Harding v. Alston ( 9 Me. 140 ) 253
Harding v. American Glucose Co. ( 182 111. 551 ) 374
Harding v. People ( 160 111. 459 ) 113, 203
Harknes-s v. Hyde (98 U. S. 476) 265
Harkrader v. Wadley (172 U. S. 148) 427, 429, 431, 445
Harpending v. Dutch Church ( 16 Pet. 455) 396
Harrington v. Board (20 R. I. 233) 229
Harris v. Eaton (20 R. I. 81) 311
Harris v. Runnels ( 12 How. 83 ) 233
Harrison v. Baltimore ( 1 Gill. 264) 228
Harrison v. Harrison (20 Ala. 629) 254
Hart v. Burnett ( 15 Cal. 530) 414
Hart v. Mayor (24 Am. Dec. 165) 148, 216
Hartford Ins. Co. v. Chicago, etc. Co. (175 U. S. 91) 399, 405
Haun v. State (7 Kan. App. 509) 208
Haverty v. Bass (66 Me. 71 ) 228
Havmeyer v. Iowa Co. (3 Wall. 294) 409
Hays v. Missouri ( 120 U. S. 68) 343
Head v. Amoskeag ( 113 U. S. 9) 279
Henderson Bridge Co. v. City ( 173 U. S. 592 ) .352
Hennington v. Georgia ( 163 U. S. 299) 214
Herb v. Morash ( 54 Pac. 323 ) 229
Hess v. White (24 L. R. A. 277) 288
Heth v. Radford (31 S. E. 8) 164
Hobbs, Ex parte (1 Wood 537) 82
Hoboken v. Land Company ( 18 How. 272 ) 146
Hodson v. Vernval (168 U. S. 262) 144
Hoffman v. Hoffman ( 7 Am. R. 299 ) 254
Hoke v. Henderson (4 Dev. (N. C.) 15), 157
Holden v. City of Alton (179 111. 318) 375
Holden v. Hardy (169 U. S. 366) . .56, 64, 144, 162, 214, 222, 320, 350
Holden v. Minnesota (137 U. S. 483) 243, 273
Holt v. Manufacturing Co. (176 U. S. 68) 403
Holyoke v. Lyman ( 15 Wall. 500) 307, 365, 369
Home Company v. New York (134 U. S. 594) 323, 340
Home of Friendless v. Rouse (8 Wall. 430) 36fi
Hong Wah, In re (82 Fed. 623) 227
Hood v. State (56 Ind. 263) .254
Hoole v. Dorroh (75 Miss. 257) 242
TABLE OF CA8E8. 503
Page.
Hooper v. California (155 U. S. 648) 128, 207, 331, 398
Hope v. Johnson (2 Yerg. (Tenn.) 123) 294
Hopt v. Utah (110 U. S. 574) 292, 312
Hopkins v. MeClure ( 133 U. S. 380) 404
Hopkins v. Oxley (83 Fed. 912) 472
Hopkins v. United States (171 U. S. 578) 477, 481, 486
Houck v. Anheuser-Busch Assoc. (88 Texas 184) 374
Houston, etc. R. Co. v. Texas (177 U. S. 77) 399
Hovey v. Elliott (167 U. S. 409) 251
Huling v. Raw Valley Co. ( 130 U. S. 559) 255
Humphreys v. Church (109 N. C. 132) 226
Humphreys v. Newport News Co. (33 W. Va. 137 ) 305
Hunt v. Hurd (98 Fed. 683) 417
Hunter v. Martin (4 Munf. 1 ) 392, 423, 446
Hunter v. Martin ( 1 Wheat. 304 ) 392, 423, 446, 447
Hurtado v. California (110 U. S. 537),
15, 72, 142, 143, 144, 147, 290, 307
Hurst v. Town (82 N. W. 1099) 314
Hutchinson v. Stovie (92 Tex. 685) 165
Illinois Central Co. v. Adams (179 U. S. ), (21 Sup. Ct. 251),
366, 403, 421
Illinois Central v. Griffin (80 Fed. 278) 237
In re Ah Yup (5 Sawy. (U. S.) 155 32, 33
In re Atlantic City R. Co. ( 164 tr. S. 633) 448
In re Black (175 U. S. 115) 447
In re Burris (136 U. S. 586) 439
In re Clark's Estate (46 (Pa.) Atl. 127) 333
In re Converse (137 U. S. 624) 385
In re Coy ( 127 U. S. 731) 78
In re Debs (158 U. S. 564) 129, 147, 162, 286, 473
In re Dey (9 N. J. Ch. 181 ) 308
In re Duncan ( 139 U. S. 449 ) 396, 430, 434
In re Eberle (98 Fed. 295) 127
In re Flaherty (27 L. R. A. 529) 225
In re Gee Hop (71 Fed. 274 ) 32
In re Green ( 141 U. S. 325) 446, 448
In re Green ( 134 U. S. 377 ) 74
In re Grice (79 Fed. 627) 351
In re Hong Wah (82 Fed. 623) 227
In re Kanaka (21 Pac. 993) 43
In re Kemmler (136 U. S. 436) 12, 15, 93, 235, 323
In re Lockwood (154 U. S. 116) . .47, 81
504 TABLE OF CASES.
Page.
In re Loney (134 U. S. 372) . . . , 441
In re Look Tin Sing (21 Fed. 905) 18, 21, 22, 26, 27, 32, 34
In, re Morgan (58 Pac. 1071 ) Ill, 214, 222
In re Morrison (147 U. S. 14 ) 448
In re Nagle (135 U. S. 1 ) .441
In re Parrott ( 1 Fed. 481 ) 330
In re Pennsylvania Co. (137 U. S. 451 ) 425, 448
In re Po (6 N. Y. 383) 43
In re Preston ( 59 N. E. 101 ) 203, 206
In re Rahrer (140 U. S. 545) 169, 385, 491
In re Spangler ( 11 Mich. 299 ) 51
In re Swan (150 U. S. 648) 434
In re Tuthill (163 N. Y. 133) 287, 306
In re Yonder Ahe (85 Fed. 959) 350
In re Waite (81 Fed. 359) 442
In re Wood (140 U. S. 278) 83, 438
In re Wong Kim Ark (71 Fed. 382) 26, 32
Insurance Co. v. Bales of Cotton ( 1 Pet. 511 ) 35
Insurance Co. v. Bayha (8 Kan. App. 169) 335
Interocean Pub. Co. v. Assoc. Press (184 111. 438) 183, 188, 376
Interstate Commerce v. Brimson (154 U. S. 447 ) 474
Iowa Savings, etc. v. Heidt (77 N. W. 1050) 313
Iron Mountain R. Co v. City of Memphis (96 Fed. 113) 431
J
Jacksonville, etc. v. Adams (33 Fla. 608) 288
Janvrin Case ( 174 Mass. 514) 193
Jefferson Bank v. Skelly ( 1 Black. 436 ) 353
Jellenix v. Huron Copper Co. (177 U. S. 1 ) 271
Jenkins v. Ballentine (8 Utah, 245) 290
Jens v. Lands (84 Fed. 73) 2]
Johnson v. Goodyear ( 59 Pac. 304) Ill, 336
Jones v. Brim (165 U. S. 180) 312
Jones v. People (84 111. App. 453) 241
Jones v. Perry ( 10 Yerg. 59) 158
Judefind v. Maryland (22 L. R. A. 721 ) 214
K
Kansas v. Zeibold (123 U. S. 623) 147
Kansas Pac. Co. v. Atchison, etc. Co. (112 U. S. 416) 426
Kaukana, etc. v. Green Bay Co. (142 U. S. 254) 54, 280
Kelley v. Owen (7 Wall. 496) 28
TABLE OF CA8E8. 505
Page.
Kelley v. Pittsburg (104 U. S. 78) 149, 355
Kemmler, In re (136 U. S. 436) 12, 15, 93, 235, 323
Kenaka, Re (21 Pac. 993) 43
Keeler Case (55 Am. St. R. 785) 148, 216
Kennard v. Louisiana (92 U. S. 480) 279
Kentucky v. Dennison (24 How. 66) 444, 453
Kentucky Railroad Tax Cases (115 U. S. 321 ) 152, 323
Kern v. Huidekoper ( 103 U. o. 485) 426
Kidd v. Pierson ( 128 U. S. 1) 79, 80, 170
Kilbourn v. Thompson ( 103 U. S. 168) 162, 297
Kiramish v. Ball (129 U. S. 217) 92
King v. City of Portland (63 Pac. 2) 164
King v. Cross (175 U. S. 396) 266, 27T
King v. Mullins (171 U. S. 404) 153, 158, 261, 336
Kinney v. Beverly ( 1 Hen. & Munf. 531 ) 141
Kirtland v. Holkiss (100 U. S. 491 ) 149
Kizer v. Texarkana Co. (179 U. S. 199) 422
Knowlton v. Moore (178 U. S. 41 ) 342
Kohl v. United States (91 U. S. 367 ) 469
Kreibohn v. Yancey (55 S. W. 260) 233
Kreitz v. Behrrenmayer ( 125 111. 141 ) 28
L
Lake Shore v. Ohio (173 U. S. 285) 178, 218
Lake Shore Co. v. Smith ( 173 U. S. 684) 181, 194
Lambert v. Barrett ( 159 U. S. 660) 283, 423, 424
Lancaster v. Clayton ( 18 Am. & Eng. Corp. Cas. 31 ) 354
Lane v. Oregon (7 Wall. 71 ) 383
Laney v. Garbee (105 Mo. 355) 253
Lansing v. Smith (21 Am. Dec. 89) 108, 138
Lanz v. Randall (4 Dill. 425) 24
Laughlin v. Louisiana Ice Co. (35 La. Ann. 1184) 51
Lawton v. Steele (152 U. S. 133) 127, 148, 172, 216, 221
Leep v. Iron Mountain Co. ( 58 Ark. 407 ) 207
Leeper v. Texas (139 U. S. 462) 282, 293, 390, 396, 397, 429
Leffingwell v. Warren (2 Black, 599) 396, 408
Legal Tender Cases ( 12 Wall. 531 ) 36
Lehew v. Brummell ( 103 Mo. 546) 91
Lehigh Water Co. v. Easton (121 U. S. 391 ) 137, 399
Leighton v. Young (52 Fed. 439) 164
Leisy v. Hardin ( 135 U. S. 100) 491
Lem Hing Dun v. United States (7 U. S. App. 31) 29, 32
Lent v. Tillson (140 U. S. 316) 295, 4fi8
L'hote v. New Orleans ( 177 U. S. 587 ) 170, 358, 420
506 TABLE OF CASES.
Page.
Levasser v. Washburn (11 Grat. 572 ) 262
License Cases (5 How. 583) 169
License Tax Cases (5 Wall. 462) 299, 301
Life Insurance Co. v. Yokum (98 Fed. 251 ) 343
Lindsay & Phelps Co. v. Mullen (176 U. S. 126) 234
Linkous v. Shafer (28 Grat. 775) 297
Little v. State (84 N. W. 248 ) 241
Livingston's Case ( 14 Grat. 592) 232
Loan Association v. Topeka (20 Wall. 655) 161
Lockwood, In re ( 154 U. G. 116) 47, 81
Loeb v. Trustees ( 179 U. S. 472) 164, 396, 409, 422
Logan v. United States (144 U. S. 263) 60, 68, 417, 418, 428, 451
Loney, In re (134 U. S. 372) 441
Long Island Water S. Co. v. Brooklyn (166 U. S. 685) 468, 469
Looker v. Maynard (179 U. S. 46) 365
Look Tin Sing, In re (21 Fed. 905) 18, 21, 22, 26, 27, 32, 34
Los Angeles v. Los Angeles Co. (177 U. S. 558) 193, 360, 409, 416
Loughbrough v. Blake (5 Wheat. 317) 41
Louisville v. Bank (174 U. S. 439) 363, 365
Louisville Gas Co. v. Citizens' Gas Co. (115 U. S. 683) 370
Louisville v. Palmes (109 U. S. 244) 399
Louisville, etc. v. Mississippi (133 U. S. 587 ) 88
Louisville & Nashville Co. v. Schmidt (177 U. S. 230) . .82, 147, 295
Louisville, etc. Co. v. W^oodson (134 U. S. 614) . . 273
Louisville Water Co. v. Clark (143 U. S. 1 ) 369
Loving v. Railroad (47 W. Va. ) 145, 287, 289
Low v. Rees Printing Co. (41 Neb. 127 ) 214, 222
Lowe v. Austin ( 13 Wall. 29 ) 159
Lowe v. Kansas (163 U. S. 81 ) 143
Lowry v. Silver City Co. (179 U. S. 196 ) 421
Ludlam v. Ludlam (26 N. Y. 356) 26, 27, 28
Luman v. Kitchens (44 Atl. 1051 ) 209
Lynch v. Clark ( 1 Sandf. Ch. 584) 29
Lynn v. State (25 S. W. 779) 290
M
McAllister v. United States ( 141 U. S. 174) 39
McArdle, Ex parte (6 Wall. 318) 432
McCall v. Ratchford (82 Fed. 41 ) 472
McClure v. Maitland (24 W. Va. 561 ) 262
McClure v. Mauperture (29 W. Va. 633) 262
McCracken v. Hayward ( 2 How. 608 ) 294
McCready's Case (27 Grat. 985) 68
McCready v. Sexton (29 Iowa. 356) 166
TABLE OF CASES. 507
Page.
McCmuly v. Virginia (94 U. S. 391 ) 313
MfCullough v. Maryland (4 Wheat. 31C) 150, 303, 383
McCullough v. Virginia (172 U. S. 102) 297, 399, 400
McDonald v. Commonwealth ( 173 Mass. 322) 280, 365
McEldowney v. Wyatt (44 W. Va. 711 ) 274
McKlmoyle v. Cohen ( 13 Pet. 312) 265
McKlvaine v. Brush (142 U. S. 155) 93, 108, 232, 243, 396
M;u key v. Enzensperger (11 Utah, 154) 288
Mackane v. Durston (153 U. S. 684) 289
Mi-Kay v. Campbell (2 Sawyer, 118 ) 29
McKinney v. State ( 3 Wyo. 719 ) 357
McMillen v. Anderson (95 U. S. 37 ) 146, 150
McMullen v. Hoffman ( 174 U. S. 639) 133
McXamara v. People (55 N. E. 625) 291
McPherson v. Blacker ( 146 U. S. 1 ) 74
McVeigh v. United States ( 11 Wall. 267 ) 257
Magoun v. Illinois (170 U. S. 283) 323, 325, 341
Mallory v. Hanaur Oil Works (86 Tenn. 598) 373
Marchant v. Pennsylvania R. R. Co. (153 U. S. 380)
141, 142, 349, 360
Marcum v. Manning (96 N. C. 132) 92
Martin v. Baltimore & O. Co. (151 U. S. 673) 44
Martin v. Board of Education (42 W. Va. 514) 90
Martin v. Hunter ( 1 Wheat. 304) 392, 404, 423, 446, 447
Martin v. School Dist. (35 S. E. 517 ) 354
Mason v. Haile (12 Wheat. 374) 292, 294
Mason v. Missouri (179 U. S. 328) 233
Massie v. Watts (6 Cranch, 148) 247
Matthews v. Associated Press ( 136 N. Y. 333) 376
Matthews v. Shanklin (56 N. Y. S. 123) 472
Matter of Day (9 X. J. Ch. 181 ) 308
May v. Xew Orleans (178 U. S. 496) 490
Mayer v. Journey Stone Cutters (47 X. J. Eq. 519) . 472
Mayor v. Cooper (6 Wall. 252) 404
Mayor v. Dry Dock (133 N. Y. 104) 212
Mayor v. Yuille ( 3 Ala. 37) 199
Maxwell v. Dow ( 176 U. S. 581 144, 307
Medley's Case (134 U. S. 160) 243
Mellen v. Moline Iron Works ( 131 U. S. 352) 258
Memphis Gas Co. v. Shelby County (109 U. S. 396) 149
Merchants' Bank v. Pennsylvania (167 U. S. 461) 353, 397
Merrill v. Bowlen (20 R. I. 226) 286
Mexican Co. v. Davidson (157 U. S. 201 ) 425
Meyer v. Berlandi ( 39 Minn. 438 ) 283
Mayer v. Richmond (172 U. S. 82) 291
Miller v. Ammon (145 U. S. 421) ..79
508 TABLE OF CASES.
Page.
Miller v. Texas (153 U. S. 535) 92, 146, 290
Millett v. People (117 111. 294) 206
Mills v. St. Clair (8 How. 569) 465
Minneapolis v. Beckwith (129 U. S. 26) 168, 217, 324
Minneapolis Co. v. Emmons (149 U. S. 364) 217
Minneapolis, etc. v. Herrick ( 127 U. S. 210) 324
Minneapolis v. Reum ( 12 U. S. App. 446) 24
Minor v. Happerset (21 Wall. 162) 15, 17, 18, 19, 47, 74, 75
Mississippi Boom Co. v. Patterson (98 U. S. 403) 464, 465, 468
Missouri, etc. Co. v. Fitzgerald (160 U. S. 556) 421
Missouri, etc. Co. v. Haber (169 U. S. 613) 92
Missouri v. Lewis (101 U. S. 22) 282, 343
Missouri Co. v. Nebraska ( 164 U. S. 403) 163, 310, 470
Missouri, Kansas & Tex. Co. v. Board (59 Pac. 383) 241
Missouri, Kansas & Tex. Co. v. McCann (174 U. S. 586) 397
Missouri Pacific Co. v. Humes ( 115 U. S. 512 ) 326
Missouri R. Co. v. Mackey (127 U. S. 205) 199, 324, 325, 342
Mitchel v. Burlington (4 Wall. 270) .409
Mitchell v. Commissioners (91 U. S. 206) 159
Mobile v. Kimball (102 U. S. 691 ) 129, 178, 324
Mobile v. Yuille (3 Ala. N. S. 140) 183
Mogul, S. S. Co. v. McGregor (21 Q. B. Div. 544) 482
Molyneux v. Seymour ( 76 Am. Dec. 671 ) 269
Mon Luck, Ex parte ( 29 Ore. 421 ) 224
Monongahela Co. v. United States (148 U. S. 312) 366, 468
Montana Co. v. St. Louis Co. ( 152 U. S. 160) 162
Mooney Manufacturing Co. ( 34 U. S. App. 582) 268
Moore v. Missouri (159 U. S. 673) 288, 290, 355
Moore v. Strickling (46 W. Va. 515) 165
Moores v. Bank (104 U. S. 625) 408
Morgan, Re (58 Pac. 1071) Ill, 214, 222
Morgan v. Louisiana (118 U. S. 455) 129
Morley v. Lake Shore Co. (146 U. S. 162) 396, 397, 398
Mormon Church v. United. States (136 U. S. 1) 39, 40
Morris Run Coal Co. v. Barclay Co. (68 Pa. St. 173) 488
Morris v. City (30 S. E. 850) 225
Morrison, Re (147 U, S. 14) 448
Morton v. Nebraska (21 Wall. 660) 119
Moundsville v. Fountain (27 W. Va. 182) 282, 272
Mugler v. Kansas (123 U. S. 623) 79, 216, 224, 286
Multonomah v. Savings (169 U. S. 421 ) 158, 303
Munn v. Illinois (94 U. S. 113) 143, 185, 193, 194, 199, 204, 369
Murdock v. Memphis (20 Wall. 591 ) 404
Murdock v. Ward (178 U. S. 139) 342
Murphy v. Massachusetts (177 U. S. 155) 232, 295
Murphy v. Ramsey (114 U. S. 44) 36, 39, 79
TABLE OF CASES. 509
Page.
Murray v. Hoboken ( 18 How. 276) 48, 154
Murray v. McCarty (2 Munf. 393) 23, 24
N
Xagle, In re (135 U. S. 1) 441
Nash v. Page (80 Ky. 539) 199 '
Nashville Co. v. Alabama (128 U. S. 96) 228
Natal v. Louisiana (139 U. S. 621 ) 273
National Fertilizer v. Lambert (48 Fed. 458) 229
National Harrow Co. v. Hench (83 Fed. 36) 372
Neal v. Delaware ( 103 U. S. 370) 47, 55, 328
Newburyport Water Co. v. City (103 Fed. 684),
82, 132, 178, 181, 193, 470
New Orleans v. Benjamin (153 U. S. 411) 404, 423, 424
New Orleans v. Kaufman (29 La. Ann. 283) 352
New Orleans v. N. O. Water Co. (142 U. S. 79),
118, 361, 364, 366, 421
New Orleans v. Semple ( 175 U. S. 309) 303
New Orleans Gas Co. v. Hart (40 La. Ann. 474) 173
New Orleans Gas Co. v. Louisiana L. Co. (115 U. S. 650)
359, 360, 366, 369
New Orleans Water Works v. Louisiana Sugar Co. (125 U. S.
18) 98, 399, 400, 412
New Orleans Water Works v. Rivers ( 115 U. S. 674) 359
Newton v. Commissioners ( 100 U. S. 548 ) 363, 366
New York v. Eno ( 155 U. S. 89) 417, 435
New York v. Miller (11 Pet. 102) 137
New York v. New York Clearing House (179 U. S. ) 323
New York, etc. Co. v. Bristol ( 151 U. S. 556) 222
New York, etc. Co. v. People ( 165 U. S. 628) 310
New York Life Co. v. Craven (178 U. S. 389) 305, 331, 396
New York & N. E. Co. v. Bristol (151 U. S. 556) 169, 178, 222
Niemeyer v. Wright (75 Va. 239) 233
Nishimura Ekin v. United States (142 U. S. 651 ) 146
Nobles v. Georgia (168 U. S. 398) 283, 308, 397
Noel v. People ( 187 111. 587) 81
Nongue v. Clapp (101 U. S. 551 ) 425
North American Co. v. Lake View (2 Am. & Eng. Corp. Gas. 6). ..217
Northwestern University v. People (99 U. S. 309) 400
Norton v. Shelby County (118 U. S. 425) 291, 396
Norwood v. Baker (172 U. S. 269) 163, 165
510 TABLE OF CASES.
O
Page.
Gates v. National Bank ( 100 U. S. 239) 405
O'Brien v. Wheelock (95 Fed. 883) 407
Ohio v. Thomas (173 U. S. 276) 442
Ohio Coal Co. v. Indiana (177 U. S. 90 ) 126
Ohio Life Ins. Co. v. Debolt ( 16 How. 416) 409
Oliver v. Parlin & Orendorf Co. ( 105 Fed. 272) 427
Oneal v. Behanna (182 Pa. St. 236 ) 472
Opinion of Justices ( 163 Mass. 589 ) 128, 215
Oregon, etc. v. Skottow ( 162 U. S. 490) 426
Orient Ins. Co. v. Daggs (172 U. S. 557) 140, 331, 332, 337, 338
Osborn v. Bank (9 Wheat. 738 ) 404
Overby v. Gordon (177.U. S. 221) 250
P
Pacific Express Co. v. Seibert (142 U. S. 339) 333, 335
Paddock v. Missouri Pacif. Co. ( 155 Mo. 524) 335
Palmer v. McMahon ( 133 U. S. 660) : . 150, 152
Palmer v. Tingle ( 55 Ohio St. 423) 201
Palmer & Crawford v. Crawford (55 Ohio St. 423) 285
Parker v. Metrop. Co. ( 109 Mass. 507 ) 199
Parkersburg Gas Co. v. Parkersburg (30 W. Va. 435) 137
Parrott, In re (1 Fed. 481 ) 330
Parsons v. District ( 170 U. S. 45) 445
Parsons v. Snider (42 W. Va 517 ) 427
Passenger Cases (7 How. 283) 86, 176
Patterson v. Kentucky (97 U. S. 501 ) 235
Paul v. Virginia (8 Wall. 168) 43, 46
Paulsen v. Portland ( 149 U. S. 30) 164, 165
Pearsall v. Great Northern Co. (161 U. S. 646) ..359, 360, 365, 366
Peik v. Chicago (94 U. S. 155) 185, 188
Pembina v. Pennsylvania (125 U. S. 181 ) 323, 331
Peninsular Co. v. Union Co. ( 100 Wis. 488) 293
Penn v. Lord Baltimore ( 1 Ves. 444) 247
Penn Mutual v. City of Austin ( 166 U. S. 685) 97
Pennoyer v. Neff (95 U. S. 714) 245, 250, 258
Pennsylvania Co. In re (137 U. S. 451 ) 425, 448
Pennsylvania Co. v. St. Louis, Alton, etc. Railroad (118 U. S.
290 374
People v. Bellett (99 Mich. 151) 214
People v. Budd (145 U. S. 175) 180
People v. Budd (117 N. Y. 1 ) 175, 197
People v. Chicago Gas Trust (130 111. 268) 374
People v. City (18 Am. & Eng. Corp. Cas. 28) 354
TABLE OF CASES. 511
Page.
People v. Gallagher (93 N. Y. 438) 9P
People v. Harper (91 111. 357) 211
People v. Havnor (149 N. Y. 195) 214
People v. Japinga ( 1 15 Mich. 222 ) 94
People v. Mayor (*55 Am. Dec. 266) 164
People v. New York (145 U. S. 175) 199
People v. Pellett (41 Am. St. R. 589 ) 94
People v. Pratt (38 Am. & Eng. Corp. Gas. 201) 226
People v. St. Saviours Sanitarium (34 App. Div. 363) 281
People v. Simon ( 176 111. 165 ) 260
People v. Squires ( 1 Am. St. R. 893) 178
People v. Sugar Refining Co. (54 Hun, 354) 134
People v. Sugar Trust (121 N. Y. 582) 372
People v. Warden ( 157 N. Y. 116) 115, 281
People v. Warden (144 N. Y. 529) 197
People v. Western Union Tel. Co. ( 166 111. 15) 183
Pepke v. Cronon (155 U. S. 100) 438
Pequignot v. Detroit ( 16 Fed. 211 ) 29
Percy v. Cockrill (53 Fed. 872) 396
Perkins v. Wakeham (86 Cal. 581 ) 258
Peryear v. Commonwealth ( 5 Wall. 475 301
Peter v. Hargrave (5 Grat. 12) 117
Petit v. Minnesota (177 U. S. 164) 94, 214
Pettibone v. United States ( 148 U. S. 209 ) 428
Pfeister v. Wheeling, etc. (19 W. Va. 676) 346
Phelan Case (62 Fed. 803) 472
Phenix Co. v. State (72 Am. St. R. 143) 299, 353
Phenix Co. v. State (118 Ala. 143) 299, 353
Pike's Peak Power Co. v. City of Colorado Springs ( 105 Fed. 1 ) ,
359, 364, 365
Pillow v. Improvement Co. (92 Va. 144) 286
Piqua Branch Bank v. Knoop 1 16 How. 369) 366, 367
Pinney v. Providence Company (82 X. W. 308) 263
Pittsburg, etc. Co. v. Backus ( 154 U. S. 421 ) 152, 280
Pittsburg & L. A. Co. v. Cleveland Iron Co. (178 U. S. 270) 424
Pleasant Township v. .Etna L. Ins. Co. (138 U. S. 67) 409, 416
Plessy v. Ferguson ( 163 U. S. 537 ) .' 87, 89, 90
Plumer v. Coler (178 U. S. 115) 159, 342
Plumley v. Massachusetts ( 155 U. S. 461 ) 219, 301
Po, In re (28 N. Y. 383) 43
Pollock v. Farmers' L. & T. Co. (158 U. S. 601) 379, 412
Pollock v. Farmers' L. & T. Co. (157 U. S. 429) 159
Potter v. Bank (102 U. S. 165) 418
Potts v. Brown ( 167 111. 67 ) 225
Powell v. Pennsylvania (127 U. S. 678) 79, 107, 219, 334
Power v. Village (10 Am. & Eng. Corp. Cas. 54) 137
512 TABLE OF CASES.
Page.
Prentis v. Brennan (2 Blatch. 102) 24
Presser v. Illinois (116 U. S. 252) 81
Preston, In re (59 N. E. 101) 203, 206
Priest v. Cummings ( 16 Wend. 617 ) 29
Prigg v. Commonwealth of Pennsylvania (16 Pet. 539) 450
Proprietors of Bridge v. Hoboken Land Co. (1 Wall. 116) 400
Providence Bank v. Billings (4 Pet. 514) 353
Provident v. Mayor ( 113 U. S. 506) 221
Pullman Co. v. Pennsylvania (141 U. S. 18) 302, 303, 305
R
Ragio v. State ( 86 Tenn. 272 ) 214
Rahrer, In re ( 140 U. S. 545 ) 169, 385, 491
Railroad v. Backus (154 U. S. 439) 340
Railroad v. Brown ( 17 Wall. 445 ) 87
Railroad v. Mackey (127 U. S. 205) 180, 199, 324, 325, 342
Railroad v. Penniston ( 18 Wall. 1 ) 159
Railroad Commission Cases (116 U. S. 307) 188, 196
Railroad Company v. Childers (82 Ga. 719) . 239
Railroad Company v. Husen (95 U. S. 465) 93, 176, 178
Railroad Company v. Koontz (104 U. S. 12 ) 305
Railroad Company v. Richmond (96 U. S. 521 ) 229
Railroad Company v. Transportation Company (25 W. Va. 324)
169, 184, 193, 199, 369
Railroad Company v. Whitton ( 13 Wall. 270) 44
Railway v. Lafton (96 U. S. 564) 354
Railway v. Mathews (165 U. S. 1 ) 180
Railway v. Matthews (174 U. S. 96) 180, 325, 335, 338
Railway Company v. Ellis (165 U. S. 150) 324, 335
Railway Company v. National Bank (102 U. S. 14) 412
Railway Company v. Philadelphia (101 U. S. 528 ) 365, 369
Ralston v. Weston (46 W. Va. 544) 217
Ramish v. Hartwell ( 58 Pac. 920) 242
Ramsey v. People ( 142 111. 380) 206
Ratcliffe v. Anderson ( 31 Grat. 105) 297
Ray v. Western Pa. Gas Co. (138 Pa. St. 576) 412
Raycroft v. Tayntor (33 L. R. A. 235) 482
Raymond v. Levitt ( 46 Mich. 450) 132
Reagan v. Farmers' Loan (154 U. S. 362) 194, 196, 198, 199
Rector v. Philadelpha (24 How. 300) 368
Reeve v. Ladies' Association (56 Ark. 335) 345
Refrigerator Co. v. Hall (174 U. S. 70) 304
Reggel, Ex parte (114 U. S. 642) 282
Reyman Company v. Brister (179 U. S. 445) 79, 352
TABLE OF CASES. 513
Page.
Reynolds v. United States (98 U. S. 54) 40
Rhodes v. Iowa (170 U. S. 412) 80
Rice v. Railroad ( 1 Black, 358 ) 353
Richards v. Clarksburg (30 VV. Va. 491 ) 165, 213
Richardson v. Buhl (77 Mich. 632) 488
Richmond v. Richmond & D. Co. (21 Grat. 604) 354, 355
Riggs v. Johnson ( 6 Wall. 195 ) 425
Ritchie v. People (155 111. 98) 113, 214
Ro Bard v. Lamb (127 U. S. 58) 255
Robb v. Connolly (111 U. S. 624) 450
Roberts v. City (5 Cush. 198) 89
Roberts v. Cocky (28 Grat. 207 ) 295
Robinson, Ex parte ( 19 Wall. 505) 473
Roller v. Holley (176 U. S. 398) 252, 266
Rondot v. Rogers (99 Fed. 202) 409, 416
Rowan v. Runnels ( 5 How. 134 ) 409
Royall, Ex parte (117 U. S. 241 ) 435, 437, 438, 443
Royall v. Virginia (116 U. S. 572) 300
Ruckabee v. Moore ( 104 Fed. 947 ) 28
Ruggles v. Illinois (108 U. S. 526) 192
Ruggles v. People (91 111. 256) 199
Ruhstratt v. People (185 111. 133) 171, 333
Russell v. Southard ( 12 How. 139) 393
Ryan v. Brindley (1 Wall. 66) 418
8
St. Clair v. Cox ( 106 U. S. 350) 44
St. Louis v. Dorr (41 S. W. 1094) 351
St. Louis Co. v. Hall ( 173 U. S. 440) 220
St. Louis & San Francisco Co. v. Gill ( 156 U. S. 649) 189
St. Tamany Water Co. v. New Orleans Water Works (120 U.
S. 64) 360, 362
Salt Company v. East Saginaw (13 Wall. 373) 362
San Diego Water Works v. City (118 Cal. 556) 192, 198, 199
Sanford v. Poe (37 U. S. App. 378) 306, 354
San Mates v. Railroad Co. (13 Fed. 722 ) 31
Santa Clara v. Southern Pac. Co. (18 Fed. 385) 336
Santissima Trinidad (1 Brock. (U. S.) 478) 20, 22
Saranac L. Co. v. Roberts (177 U. S. 318) 277, 313
Sayward v. Denny (158 U. S. 180) 422
Schenck v. City (152 Ind. 204) 313
Scholle v. State (42 Atl. 326) 81
Schoolfield v. City (78 Va. 366) 341
Sehultz v. Schultz (10 Grat. 258) 264
514 TABLE OF CASE 8.
Page.
Scott v. Jones (5 How. 343) 36
Scott v. McNeal (154 U. S. 34) 256
Scott v. Sandford ( 19 How. 393 ) 18
Scuyler Bank v. Bollong ( 150 U. S. 85) 422
Searl v. School District (133 U. S. 553) 467
Seibold, Ex parte (100 U. S. 371) 75, 78
Sentell v. New Orleans (166 U. S. 698 ) 218
Shaffer v. Union Co. (55 Md. 74) 207
Shanks v. Dupont (3 Pet. 242) 28
Sharpless v. Mayer (59 Am. Dec. 759) 161
Shaver v. Pennsylvania Co. (71 Fed. 931 ) 288
Shelby County v. Union Bank (161 U. S. 149) 364
Shepherd v. Ware (46 Minn. 174) 265
Shively v. Bowlby (152 U. S. 48) 39
Shollenberger v. Pennsylvania (171 U. S. 1) 218, 220, 491
Shoobert v. De Motta (112 Cal. 215) 413
Short v. Bullion (45 L. R. A. 603) 214, 222
Shreveport v. Cole .(129 U. S. 36) 424
Schwab v. Bergren (143 U. S. 442) 273
Sidekum v. St. L. Co. (93 Mo. 400) 238
Sing Lee, Ex parte (31 Am. St. R. 218) 215
Singer Co. v. Wright (Ga. 25 S. E. 249) .298
Skelton v. State ( 149 Ind. 641 ) 309
Skinner v. Garrett Co. (96 Fed. 735) 180, 215, 348
Slaughter's Case ( 13 Grat. 767 ) 44, 63, 336, 353
Slaughter House Cases (16 Wall. 36)
v 9, 14, 19, 20, 24, 56, 58, 63, 66, 70, 71, 82, 90, 104, 106,
168, 171, 218, 318, 360, 370, 371, 460
Smith v. Ames ( 169 U. S. 466) 190, 319
Smith v. People (65 111. 375) 308
Soon King v. Crowley (113 U. S. 703) 199, 215, 332, 342
Spangler, In re (11 Mich. 299) 51
Spencer v. Merchant ( 125 U. S. 345 ) 152, 164
Spies v. Illinois (123 U. S. 131, 166) 8, 55, 71, 103
Spring Valley Water Works v. Schottler (110 U. S. 347)
193, 199, 365, 369
Spry L. Co. v. Sault, etc. Bank (77 Mich. 199) 285
Stanton v. Allen (5 Denio, 434) 134
Starin v. New York (115 U. S. 257 ) 423*
State v. Almy (67 N. H. 274) 309
State v. Bates ( 14 Utah, 293) 144
State v. Bingham (42 W. Va. 234) 283
State v. Broadbelt (89 Md. 565) 322, 323
State v. Broadbelt (45 L. R. A. 433) 223
State v. Buswell (40 Neb. 158) 241
State v. Caldwell (69 Am. St. R. 465) 55
TABLE OF CASES. 515
Page.
State v. Campbell (42 W. Va. 246) 272
State v. Campbell (64 N. H. 402) 223
State v. Chapman (34 S. E. 961) 356
State v. Columbus (34 Ohio St. 572) 199
State v. Creditor (21 Am. St. R. 306) 82
State v. Cross (44 \V. Va. 315) 232, 291
State v. Dalton (46 Atl. (R. I.) 234) 310
State v. Darragh (54 S. W. 226) 242
State v. Doherty (60 Me, 504) 283
State v. Doherty (16 Wash, 382) 286
State v. Dennoyer (72 X. W. 1014) 30
State v. Dow (47 Atl. 734) 312
State v. Fernandez ( 39 La. Ann. 538 ) 94
State v. Fire Creek Co. (33 W. Va. 188) 202, 343
State v. Fireman's Ins. Co. (45 L. R. A. 363) 133
State v. Freight Tax Cases ( 15 Wall. 232) 159
State v. Frew (24 W. Va. 216) 473
State v. Gadner (58 Ohio St. 599) 199
State v. Gibson ( 36 Ind. 389) 82
State v. Gilbert (56 Ohio St. 575) 260
State v. Gillman (33 W. Va. 146) 81
State v. Goodwill (33 W. Va. 179) Ill, 171, 201, 203, 343
State v. Griffin (41 L. R. A. 177 ) 221
State v. Grigg (34 W. Va. 79) t x 311
State v. Haun (61 Kan. 146) 208
State v. Hay (35 S. E. 459) 225
State v. Hunt (2 Hill. (S. C. 1) 18, 33, 51
State v. Jacksonville Terminal (27 So. R. 221 ) 233, 357
State v. Johnson (61 Kan. 803) 171
State v. Julow (129 Mo. 172) 114
State v. Knowles ( 90 Md. 646 ) 82
State v. Leffring (55 N. E. 168) 240
State v. Lewis (20 L. R. A. 52) 221
State v. Loomis (115 Mo. 307 ) 207
State v. McCann (21 Ohio St. 198) 91
State v. Main (69 Conn. 123) 224
State v. Mason (55 S. W. 636) 233
State v. Mayor (109 U. S. 285) 225
State v. Moore (104 N. C. 714) 175
State v. Myers (42 W. Va. 822) 219
State v. Nebraska Distill. Co. (29 Neb. 700) 374
State v. Ohio Coal Co. ( 150 Ind. 21 ) 126
State v. Pacif. Co. ( 52 La. Ann. ) 188
State v. Peel Splint Co. ( 36 W. Va. 802 ) 110, 203, 344
State v. Prather ( 19 Wash. 336) 234
State Railroad Tax Cases (92 U. S. 575) 304, 340, 408
516 TABLE OF CASES.
Page.
State v. Santee (82 N. E. 445) 310
State v. Schlenker (84 N. W. 68) 223
State v. Sherwood (83 N. W. 527) 219
State v. Smith ( 18 Am. & Eng. Corp. Gas. 36) 354
State v. Smith (14 R. I. 100) .223
State v. Sponagle (45 W. Va. 415).. 47, 51, 143, 144, 146, 153, 261
State v. Standard Oil Company ( 121 N. Y. 582) 134
State v. Standard Oil Company (49 Ohio St. 137) 134, 372
State v. Saunders (66 N. H. 39) 147, 286
State Tax on Foreign Held Bonds (15 Wall. 300) 148, 158
State v. Thereault (70 Vt. 617 ) 312
State v. Town (Mo. 54 S. W. 552) 292
State v. Travelers' Ins. Co. (47 Atl. 299) 302
State v. Webster (50 N. E. 750) .199
State v. Webster ( 150 Ind. 607 ) 81
State v. Wheeler (44 N. J. L. 88) 221
State v. Wheeler ( 25 Conn. 290 ) 307
State v. Williams (10 S. E. 876) 356
State v. Wilson ( 7 Kan. App. 428 ) 208
State Bank v. Cooper (2 Yerg. 599) 157
Statts v. Board (10 Grat. 400) 262
Stearns v. Minnesota (179 U. S. 223) 366, 368, 399
Steed v. Harvey (72 Am. St. R. 789) 323
Steel Co. v. Erskine (98 Fed. 2*15 ) 345, 350, 355
Steffy v. Monroe (41 Am. St. R. 436) 212, 213
Stein v. Bienville Water Co. (141 U. S. 67) 361
Stewart v. Northern Co (45 W. Va. 734) 266
Stewart v. Stewart (27 W. Va. 167) 256, 267, 270
Stevens v. State (89 Md. 669) 127
Stockton v. Central R. R. Co. (50 N. J. Eq. 52, 489) 374
Stone v. Mississippi (101 U. S. 814) 169, 181, 360, 361, 369
Strader v. Graham ( 10 How. 82) 107
Strander v. West Virginia (100 U. S. 303),
31, 83, 105, 113, 326, -329, 356, 357, 453, 454
Sturges v. Crowninshield (4 Wheat. 200) 293
Stutsman v. Wallace (142 U. S. 293) 408
Sugg v. Thornton (132 U. S. 524) 256
Sully v. Amer. Nat. Bank (178 U. S. 289) 350
Suydam v. Williamson ( 24 How. 427 ) 408
Swan, In re (150 U. S. 648) 434
Sweet v. Rechel (159 U. S. 380) 467, 469
Swift v. Tyson ( 16 Pet. 1 ) 406, 412"
Syndicate Co. v. Bradley ( 7 Wyo. 228 ) 314
Syracuse Water Co. v. City (116 N. Y. 167) 137
TABLE OF CASE 8. 517
T
Page.
Talbot v. Janscn (3 Dall. 133) 21, 23, 24
Taliofaro v. Lee (97 Ala. 92) 165
Tappan v. Merchants' Bank ( 19 Wall. 490) 303
Tarbell's Case (13 Wall. 397) 47, 51, 53, 439
Taylor v. Beckham (178 U. S. 548) 118, 120, 123, 165
Taylor v. Porter (4 Hill. 140) 157
Teass v. City of St. Albans (38 W. Va. 1) 174, 212, 217
Telegraph Company v. Indiana (165 U. S. 304) 340
Telegraph Company v. Massachusetts (125 U. S. 530) 340
Telegraph Company v. Texas (105 U. S. 460) 159
Tennessee v. Davis (100 U. S. 257 ) 440, 442
Tennessee v. Sneed (96 U. S. 69) 293
Territory v. Ah Lim (9 L. R. A. 395) 227
Terry v. Anderson (95 U. S. 628) 277, 278
Thesen v. McDavis ( 34 Fla. 440) 273
Thomas v. Hot Springs (34 Ark. 553) 226
Thomas v. Railroad (101 U. S. 71) 374
Thompson v. Lee County ( 3 Wall. 327 ) 354
Thompson v. Missouri ( 171 U. S. 380) 292, 311
Thompson v. Utah ( 170 U. S. 346) 34, 36, 37, 39, 145
Thompson v. \Vhitman ( 18 Wall. 457 ) 256
Tinsley v. Anderson (171 U. S. 101) 322, 336
Toledo, etc. Co. v. Pennsylvania Co. (54 Fed. 730) 472
Towle's Case (5 Leigh, 743) 19
Town of Davis v. Davis (40 W. Va. 464) 174, 212, 217
Town of Davis v. Filler (47 W. Va. ) 165
Town of Danville v. Pace (25 Grat. 1 ) 294, 307, 313
Town of Danville v. Shelton ( 76 Va. 325 ) 353
Town v. West ( 52 La. Ann. 526 ) 358
Townsend v. State ( 147 Ind. 624) 222
Transportation Co. v. Pipe Line Co. (22 W. Va. 600) 133
Trezza's Case (142 U. S. 160) 232
Tullis v. Lake Erie Co. (175 U. S. 348) 180, 325, 338
Turner v. Richardson (80 U. S. 87, 21 Sup. Ct. 295) 402
Turner v. Turner (44 Ala. 450) 253
Turner v. Wilkes (173 U. S. 461) 396
Tuthill, In re ( 163 N. Y. 133) 287, 306
Tyler v. Judges of Registration (55 N. E. 812) 260
U
Underwood v. McVeigh (23 Grat. 409) 251
Union Pacific Railway Co. v. Botsford (141 U. S. 250) 235
Union Refrigerator Company v. Lynch (177 U. S. 149) 304
518 TABLE OF CASES.
Page.
Union Steamboat Company, Ex parte (178 U. S. 317) 447, 448
United States v. Addyston Pipe Co. (85 Fed. 271) 133, 378
United States v. Cruikshank (92 U. S. 542),
18, 19, 46, 56, 57, 67, 72, 73, 92, 94, 235, 331, 461
United States v. Cruikshank ( 1 Wood, 308 ) 461
United States v. Debs (64 Fed. 724) 472
United States v. DeWitt (9 Wall. 41 ) 179
United States v. Elliott (64 Fed. 27 ) .472
United States v. Fox (94 U. S. 315) 179, 258, 396
Uunited States v. Gillies ( 1 Pet. C. C. 159 ) 21
United States v. Gratiot ( 14 Pet. 533 ) 39
United States v. Harris (106 U. S. 629 ) 330, 460, 462
United States v. Huckabee ( 16 Wall. 434) 35, 39
United States v. Joint-Traffic Association (171 U. S. 505),
133, 373, 478
United States v. Jones (109 U. S. 513) 464, 467, 468
United States v. Kagama (118 U. S. 375) 29
United States v. E. C. McKnight Co. (156 U. S. 1) 477, 488
United States v. Morrison (4 Pet. 124) 408
United States v. Parkhurst-Davis Co. (176 U. S. 317) 431
United States v. Patterson (55 Fed. 605) 472
United States v. Perkins (163 U. S. 625) 159, 342
United States v. Reese (92 U. S. 214) 76, 77, 454, 462
United States v. Reid (12 How. 361) 417, 428
United States v. Sanges (48 Fed. 78 ) 95
United States v. Sayward (160 U. S. 497) 403
United States v. Sweeny (95 Fed. 434) 472
United States v. Trans-Missouri (166 U. S. 290) . .133, 373, 478, 481
United States v. Waddill (112 U. S. 76) 94
United jStatesv. Wong Kim_Ark (169 U. S. 696),
16, 18, 26, 27, 29, 32, 34, 39
University v. Rouse (8 Wall. 443) 367
Usher v. Pride ( 15 Grat. 190) 262
V
Van Brocklin v. Tennessee (117 U. S. 151 ) 159
Vance v. W. A. Vandercook (170 U. S. 438) 79, 80
Van Duzen v. Newcomer (40 Mich. 90) 309
Van Zant v. Waddell (2 Yerg. 260) 157
Varner v. Martin (21 W. Va. 534) 163
Vegelan v. Gunner (167 Mass. 92) 472
Vermont, etc. Co. v. Whitehead (2 N. Dak. 82) 346
Virginia v. Rives (100 U. S. 313) ... .46, 97, 106, 108, 328, 330, 461
Virginia Coal Co. v. Thomas (97 Va. 527) 158
TABLE OF CASES. 519
Page.
Virginia Devel. Co. v. Crozier I. Co. (90 Va. 126) 356
Virginia, Ex parte ( 100 U. S. 339) . .9, 31, 108, 319, 387, 444, 451, 454
Von Der Ahe, In re (85 Fed. 959 ) 350
W
Wabash Co. v. Illinois (118 U. S. 557) 188
Wade v. Travis County (174 U. S. 499) 399, 408, 412
Waite, In re (81 Fed. 359) 442
Walker v. Jameson ( 140 Ind. 591 ) 174, 212, 214
Walker v. Sauvinet (92 U. S. 90) 92, 142, 144, 145, 279, 289, 308
Walker v. Whitehead ( 16 Wall. 314) 294, 295
Wall, Ex parte (107 U. S. 265) 165, 279
W 7 alla Walla City v. Walla Walla Water Co. (172 U. S. 1)
360, 364, 365
Wally's Heirs v. Kennedy (2 Yerg. (Tenn.) 554) 316
Walston v. Nevin (128 U. S. 578) 164
Wanek v. City of Winona (80 N. W. 851 ) 238
Ward, Ex parte (173 U. S. 452) 291
Ward v. Flood (48 Cal. 36) 91
Ward v. Maryland ( 12 Wall. 418) 67, 159, 352
Ward v. Todd (103 U. S. 327) 427
Warren v. State ( 19 Ark. 214) 272
Washburn & M. Mnfg. Co. v. Reliance M. Ins. Co. ( 179 U. S. 1 ) ...405
Watkins v. Holman ( 16 Pet. 25) 247, 250, 265
Waters-Pierce Oil Co. v. Texas (177 U. S. 28) 305, 331
Wayman v. Southard ( 10 Wheat. 46) 296
Weber v. Virginia ( 103 U. S. 346) 301
Webster v. Reed ( 11 How. 437 ) 40
Welch v. Bowen ( 11 Am. & Eng. Corp. Cas. 334) 226
Western Union v. Indiana (165 U. S. 304) 287, 340
Western Union Co. v. Pendleton (122 U. S. 347) 173
Western Union Co. v. Wyatt ( 98 Fed. 335 ) 190
Western Union Telegraph Co. v. Ann Arbor R. Co. (178 U. S.
239) ....423
Westervelt v. Gregg (12 N. Y. 209) '. 141
Weston v. Ralston (47 W. Va. ) 217, 412
Weyerhauser v. Minnesota (176 U. S. 550) 152
Wheeler v. Jackson (137 U. S. 245) 277
Wheeler v. Railroad (178 U. S. 321) 222
Wheeling Bridge Case ( 18 How. 421 ) 297
Wheeling Bridge Co. v. Bridge Co. (138 U. S. 287) 137
Wheeling Bridge Co. v. Bridge Co. (34 W. Va. 155) 137
White Breast Co. v. People (175 111. 51) 207
White v. Milwaukee (61 Wis. 536) 238
Whiting v. West Point (38 Am. & Eng. Corp. Cas. 206) 354
520 TABLE OF CASES.
Page.
Wild v. Serpell (10 Grat. 405) 262
Wiley v. Sinkler (179 U. S. 58) 7ff
Wilkinson v. Leland (2 Pet. 657 ) 307
Williams v. Fears ( 179 U. S. 270) 357
Williams v. Fears (35 S. E. 699) '. 357
Williams v. Kirtland ( 13 Wall. 306 ) 166, 396
Williams v. Mississippi (170 U. S. 213) 328
Williams v. Supervisors (122 U. S. 154) 158, 242
Williams v. Wingo (177 U. S. 601 ) 137, 362
Williamson v. Eggleston ( 170 U. S. 304) 333, 355, 396
Williamson v. Massey ( 33 Grat. 237 ) 353
Williamson v. State ( 130 U. S. 189 ) 355
Wilson v. Baltimore & P. R. Co. (5 Del. Ch. 524) 465
Wilson v. Braden ( 47 W. Va. ) 250, 265
Wilson v. Eureka (173 U. S. 32) 166, 311
Wilson v. North Carolina ( 1G9 U. S. 586 ) 165
Wilson v. Wall (6 Wall. 83) 30
Windsor v. McVeigh (93 U. S. 274) 251
Winona v. Minnesota (159 U. S. 526 ) 153, 351
Wisconsin, etc. Co. v. Jacobson (179 U. S. 287) 218, 229
Withers v. Buckley (20 How. 84) 465
Witherspoon v. Duncan (4 Wall. 210) 148
Witten v. St. Clair (27 W. Va. 762) 258
Witten v. Tomlinson (160 U. S. 231 ) 436, 439
Wong Kim Ark, In re (71 Fed. 382 ) 26, 32
Wong Wing v. United States ( 163 U. S. 228 ) 37, 39
Wood v. Brady (150 U. S. 18) 412, 416
Wood, In re ( 140 U. S. 278) 83, 438
Woodward v. Seely ( 50 Am. Dec. 453 ) 217
Wooten v. State (24 Fla. 335 ) 283
Wright v. State (88 Md. 436) 219
Wulzen v. Board (48 Am. St. R. 17 ) 145, 150
, Wunsten v. Laundry ( 39 La. Ann. 312 ) 258
Wurtz v. Hoagland (114 U. S. 606 ) 164
Y
Yarbrough, Ex parte (110 U. S. 665) 76, 77, 78, 463
Yazoo & M. Valley Co. v. Adams (180 U. S. 1, 21 Sup. Ct.
256) 421,423
Yeaton v. Bank (21 Grat. 593) 365
Yeazel v. Alexander ( 58 111. 254 ) 1 78
Yick Wo v. Hopkins (118 U. S. 356) 14, 106, 215, 299, 319
TABLE OF CASES. 521
Page.
York v. Texas (137 U. S. 15) 256
York v. Texas (73 Tex. 651) 265
Young v. Upshur (42 La. Ann. 362 ) 258
Young's Will ( 123 N. C. 358) 264
Z
/anesville v. Richards (5 Ohio St. 589) 352
INDEX.
ACCUSED.
Presence at trial, when required 271
Not necessary in appellate court 272, 349
Becoming witness, examination of 311
Governor fixing date of execution 273
ACQUISITION OF TERRITORY.
Power of nation to acquire 35, 37
Congress has power to govern 34, 39, 78
ADDITIONAL PUNISHMENT.
Valid on second conviction 280
ADMINISTRATION.
On living man's estate void 256
An in rem proceeding 255
Charge for suretyship against estate 333
ADULTERATION.
Of food 222
Of streams 221
AFRICANS.
Can be naturalized 31
ALIEN s.
Who are 17
Congress may exclude 37
Resident aliens not citizens 19
Protected by amendments as persons 14, 103, 106, 319
ALIMONY.
Not decreed without personal notice 263
ALLEGIANCE.
What is 17
Due to place of birth 17
AMBASSADORS.
Children of born here not citizens 25
523
524 INDEX.
Page.
AMENDMENT FOURTEENTH.
Is Magna Charta over again 8, 47, 103
Is mixima chwrta 10
Protects all persons under jurisdiction of nation, ..14, 106, 319
Supreme Court is final judge of 47, 49, 51, 388
States bound to enforce it 46
Enlarges federal power 9, 11, 59, 103
Is no revolution in the government 12, 184, 186, 323, 384
Sprung from Civil War 14, 103
Overrules Dred Scott Case 29
Primary purpose to give civil rights to ex-slave8 14, 103
But not limited to them 14, 103, 105
Does not define rights guaranteed 15, 45, 64, 129, 144, 155
Is restraint only on states, not on persons 46, 108, 330, 461
Grants no new rights 15, 47, 385
Does not grant suffrage 73, 77
Is self -enforcing and retroactive 54
Annul prior adverse state law 54
Means of enforcement by nation. .84, 128, 381, 420, 425, 432, 449
Does not give Congress power to make general law for states,
84, 128, 385, 460
Character of Congressional legislation under. .84, 128, 385, 460
State may violate by legislative, executive, judicial or munic-
ipal action 97, 319
Fixes citizenship, national and state 7, 15, 17
What is due process under 139, 155, 142, 464
Its exact scope must not be given in advance 139, 315
Does not prohibit laws merely harsh or unjust 321, 324
Does not authorize women as lawyers 81
Nor to vote . 18, 74
Does not increase privileges and immunities 47
Protects corporations as "persons". 43, 319
Protects Chinese and other aliens as "persons" 106, 319
Does not touch mere errors of state courts or officers, if not
contrary to amendment 142, 282, 348, 421, 429
Does not affect state police power 167, 186, 321, 384, 428
Nor taxing power 149
Nor power of eminent domain 164
Nor mere civil nor criminal procedure,
107, 168, 273, 282, 289, 292, 294, 311, 343, 468
Nor prevent proper classification in laws,
151, 321, 323, 327, 331
.Nor restrain state as to crime 428
AMENDMENTS OF CONSTITUTION.
First ten bind only nation 55, 103, 465
Amendment V. magna charta binding only nation.... 8, 103
INDEX. 525
Page.
AMENDMENTS OF CONSTITUTION Continued.
Amendment XV. does not per se give colored suffrage 76
Amendment XV. prohibits denial of vote for race or color,
73, 76
Amendment XV. allows state to fix other qualifications. .. .77
ANIMALS FERAE NATURAE.
Held by state in trust for people 127
No private property in 125
ANNEXATION OF LAND TO CITIES.
Proceeding is valid 336
APPEAL FROM STATE TO SUPREME COURT.
Process to enforce amendment 420
Lies regardless of value or amount for federal question 422
Must be federal question for 420, 423
Must be independent federal question for 420, 421
No appeal if non-federal question warrants decision. . . .404, 422
State decision must be against right claimed 421
Federal question must be real, not pretense 423, 424
No appeal from state to U. S. Circuit Court 421, 424
Lies for state in habeas corpus cases 445
Appeal is by writ of error in both law and equity cases. . . .424
Does not lie for mere error in state decision,
142, 282, 348, 421, 429
Lies in eminent domain cases 464, 470
APPEAL.
Dismissal if convict escapes 287
State may deny any appeal 289
Legislature can not grant 295
APPEARANCE TO TEST JURISDICTION.
Statute may make it a general appearance 256
ARDENT SPIRITS.
State may prohibit manufacture 80
State may prohibit sale 79, 224
Liquors sent from state to state 80
State may license and regulate sale 224, 298
Keeping in possession can not be prohibited 81
ARID LAND.
Acts for irrigation valid 287
ASSESSMENT BY CITY FOR IMPROVEMENTS.
May be first lien on property 241
For improvements, valid 164
Must be notice to owner 164
Must be measured by actual value to property 165
526 INDEX.
Page.
ASSEMBLAGE.
Right of 93, 331
ATTACHMENT.
An in rem proceeding 256, 266
May be both in rem and in personam 257
Bond may be required of non-residents 335
ATTORNEYS.
May be disbarred without jury 279
Fees included in costs against railroads 335
Amendment does not protect right to practice 81
B
BAIL.
Arrest by, valid 350
BANK OFFICER.
Taking deposit knowing insolvency 242
BARBERS.
Closing on Sunday .214, 218
BODY.
Right of inspection of on trial 235
BOOMS.
Charges by, valid 233
Subject to regulation of rates 181, 184, 192, 196, 342, 369
BRIBERY IN ELECTION,
Act depriving of office for 292
BUILDING ASSOCIATION.
Usury by 345
BUILDING.
Removal of through street may be forbidden 166, 311
BURMESE.
Can not be naturalized 43
BUSINESS, PRIVATE.
Can not be interfered with by state,
181, 184, 200, 203, 320, 334, 371
Can it be limited to places or times 292, 310, 331
INDEX. 527
C
Page.
CARCASS.
Removal may be enforced 228
CARS ON RAILROADS.
Separate for white and colored persons 87, 88 356
Heating by stoves may be forbidden 310
Where and how taxable 304
CASE.
Nature of tests due process 145, 156
CATTLE.
Diseased, running at large 92
State may exclude diseased 92, 177
Exclusion must be only to prevent contagion 93, 177
Mexican and Texas, or Indian, exclusion of 93, 177, 178
Cattle may be impounded
CEMETERIES.
May be regulated 226
Disinterments may be prohibited v 226
CHARGES OF RAILROADS.
State may regulate 181, 190, 192, 196, 342, 369
A board may fix 198
CHARTERS.
Exclusive, how far valid 358
Must be for public purposes 370
Must be on consideration 361
Must amount to contract with state 361
Very strictly construed 362
Right to repeal, or alter 364
Exemption from taxes 366
CHINESE.
Can not be naturalized 32
Children of resident born here are citizens 32
Are "persons" protected by amendment 106, 319
Act against employing, void 330
CIGARETTES.
Sale or manufacture of may be denied or regulated,
213, 281, 299
528 INDEX.
Page.
CIRCUIT COURT OF UNITED STATES.
Jurisdictional amount 402, 404
Must be federal question 402, 420
No injunction from to state court 424, 431
Release of state prisoner by habeas corpus 439
Removal of suits to from state courts 425
Can not punish crimes against state 428
CITIZENSHIP.
State and National defined by amendment 7, 17, 18, 29, 56
Changed by amendment 17
Who citizens of Nation and States 17, 19, 20, 22
Native and naturalized citizens 17, 19, 24, 29
State and National different 20, 23, 56
Can not be state citizenship only 23
But may be national alone 20
Loss of state citizenship 20, 23
Indians not citizens 18, 29
Women and children are citizens 7, 18, 19
Colored persons are 24, 30
Alien women marrying citizens become citizens 28
Filipinos and Porto Ricans not citizens 32, 39
Hawaiians are citizens 43
American women marrying aliens 28
State not to abridge privileges of federal citizenship 7
"Citizen" and "person" different 43
Children born here of alien residents are citizens 29, 32
Ambassadors' and travellers' children born here not citizens. .25
Children born abroad of citizens are citizens 26, 27, 28
Children born here of alien non-residents are aliens. .. .25, 26
Children of Americans domiciled abroad are aliens 26
African woman marrying a citizen becomes such 31
Corporation not a citizen, but a "person" protected. .. .43, 319
Lost by expatriation 20
Admission of territory as state makes inhabitants citizens ... 37
State citizenship not protected by amendment 56
CIVIL RIGHTS.
Given to colored persons by amendment 14, 103, 116
But given to all alike 14, 105, 106
Does not give social rights 85, 91
CIVIL RIGHTS ACT.
Made to execute the amendment 94, 112, 116
Warranted by the amendment 112, 116
Gives full civil rights 112, 116
INDEX. 529
CIVIL RIGHTS CASES,
Important as defining Fourteenth Amendment 84, 385, 454
Important as defining powers of congress under it.. 84, 385, 454
CLASSIFICATION
Valid in taxation and other laws,
151, 321, 323, 327, 331, 337, 341, 362
Must be fair and equal for all situated alike 320, 324
Progressive inheritance tax valid 340
COAL.
Screening and weighing acts, validity of . . t 203, 206, 208
COLORED PERSONS,
Are citizens 24, 30
Rights in hotels and theatres 84, 116
Right to sit as jurors 82, 326
Separate cars for 87, 356
Given civil rights by amendment and Civil Rights Act,
14, 85, 103, 116
Not given social rights by them 85, 91
Separate schools for, valid 89
Not given votes by Fourteenth Amendment 73, 75
Can be naturalized 30
Not made voters by Fifteenth Amendment 76
But state can not deny them votes merely for color 73, 76
Marriage with white may be prohibited 82
COMBINATIONS AND TRUSTS.
Discussion 371
COMMERCE, FOREIGN AND INTERSTATE.
Congress has full power over 80, 128, 177, 475, 489, 491
Its acts exclude and supersede state law as to.. 129, 177, 476, 491
How far national law of affects state police power 177
No state tax on passengers or freight 159
No state tax on exports or imports 159
Combinations and trusts against, are illegal 130, 373, 377
As to liquors 79, 224
COMMISSIONERS OF RAILROADS.
Act compelling company to pay, valid 180
May fix rates 198"
COMMON CARRIFJRS.
Rates may be regulated by state. . .181, 184, 189, 196, 342, 369
COMPENSATION FOR PROPERTY CONDEMNED.
Must be paid or secured 163, 313, 466
530 INDEX.
Page.
COMPETITION.
Must be free to all. 481
CONCEALED WEAPONS.
Laws against, valid 92, 290
CONFINEMENT, SOLITARY.
Of condemned persons, valid 93, 243
CONGRESS.
How it may enforce amendment 84, 116, 128, 449
Can not enact original legislation for states. . .84, 128, 385, 460
Has sole power over interstate and foreign commerce. .128, 17-7
Has exclusive power over territories and possessions of nation,
36, 39, 78
May control time and manner of electing representatives in
congress 73, 75
Has power of eminent domain 469
Who vote for representatives 75
Defines suffrage in territories 78
But not in states 73
Has police power for federal purposes 179
CONSTRUCTION OF CONSTITUTION.
Strict and liberal 8, 10, 49, 52, 381
Supreme Court has final power of, federal 47, 49, 51, 389
CONTAGION.
May be regulation to prevent 176, 177, 178
Removal or exclusion of affected person lawful 176, 227
CONTEMPT.
Punishment for without jury, is constitutional. . .162, 336, 473
Power to punish for inherent in courts, congress and leg-
islature 162, 473
CONTRACT.
Right of guaranteed by amendment,
94, 110, 113, 130, 288, 343, 475
Certain contracts may be prohibited by state,
128, 130, 179, 207, 232
Federal courts say finally whether there is a contract. .390, 399
Right of given by Civil Rights Act to colored persons. . .94, 113
State can not impair obligation of 97, 358. 409
Under contract clause must be a "law" to impair, not a
decision 97
Limitation of suit on, when valid 274, 276
531
Page
CONTRACT Continued.
State regulates law of contract 128, 245
Acts validating void contracts 278, 313, 345
Act against railroad requiring waiver of damages by em-
ployees 287
CONVEYANCE AND DEVISE.
Controlled by state law 128, 179, 245
CONVICT.
Solitary confinement of, valid 93, 243
CONVICTION OF MINOR OFFENSE.
Under charge of greater, valid 288
"CORNERING" MARKET.
Is unlawful 130, 217, 371
CORPORATIONS.
Are not citizens 43, 331
Are "persons" protected by amendment 43, 319
Foreign may be excluded by state 44, 305, 330
Foreign share in assets of insolvent corporation 349
Foreign must conform to state law 43, 305, 330
Taxation of 304, 340, 349
Forfeiture of charter, for misuser 278, 373
Dissolution by court 278
Penalty on for tax delinquency 154, 287, 298
Charter can not exempt from police regulation,
168, 178, 185, 192, 369
Charter may exempt from taxation 366
Exemption rigidly construed 366
Carriers must serve all alike 188
May be compelled to do so by mandamus 188
Charges of public corporations may be fixed by state,
181, 184, 189, 196, 199, 369
Act to compel stated payment of wages, valid,
180, 206, 208, 215, 348
No regulation of charges by private corporations,
181, 200, 320, 334
Taxation on cars of used in a state 304, 349
Taxation on express companies 305
Void contracts of may be cured by state 345
Exclusive charters valid 358
Exclusive charters rigidly construed 362
Such charters must amount to contract to be valid 361
Right to alter or repeal such charters 364
532 INDEX.
Page.
COURTS.
State decisions, effect in federal courts,
179, 245, 393, 395, 405, 407, 416, 428, 467
Federal court follows latest state decisions 407
Overruled state cases, effect of in federal courts 407, 411
State decisions final, in federal courts as to title to land,
I 179, 245, 395
Also as to what is state law 395
As to contracts, effect of state decisions. 128, 245, 390, 399, 408
State decisions as to vested rights 358, 395, 408
f Federal form own judgments as to contracts and property .. 399
State decision final on state criminal law 417, 428
State criminal jurisdiction over federal officers 439
Can alone exercise judicial power 295
State fixes its courts and their procedure,
147, 273, 289, 311, 343, 468
Court first in possession of subject has preference 427
CRIME AGAINST STATE.
State decisions final 417, 428, 425
Not if federal constitution or law is violated 430
No federal injunction against state prosecution 431
State may dispense with indictment 144, 307, 428
Form of indictment alone for state regulation 289
State may dispense with unanimous verdict 288
State may allow struck jury 281
State power over not impaired by amendment 107
Criminal law rests on police power of state 107, 128, 170
CURATIVE STATUTES.
Of taxation 242, 354
Of tax deeds 166
Of void proceedings, not valid 283
Of usury 313
Of contracts 278, 313, 345
Of bad criminal proceedings, not valid 283
of recognizance 291
CURTESY.
Legislature can not destroy right of 273
D
DEAD ANIMALS.
Act to compel removal of, valid 228
DEATH SENTENCE.
Execution by electricity valid law 93
Without jury, when valid 161
Time for execution, when may be fixed by governor 273
533
Page.
DEBS CASE.
No jury required in contempt case 473
Notable as to law of strikes 472, 473
DECISIONS.
Of state courts, force in federal courts,
179, 245, 393, 395, 405, 416, 428
DEED.
Decree for, when passes title to land out of state,
247, 249, 265
DEFENSE.
Denial of makes judgment void 251, 287
DELEGATION OF POWER.
Of Taxation may be conferred on counties and municipalities,
298, 354
Counties and municipalities can not exempt from taxes with-
out statute 364
Of police power on counties and municipalities. . . .174, 211, 212
DENTISTRY.
Practice of, license may be required 82
Diploma may be required 82
DESCENT AND DISTRIBUTION.
Are tested by state law 179
DISEASED PERSONS.
See CONTAGION.
DISTRESS FOR RENT.
Is due process of law 161
DIVORCE.
Does not require personal notice 253
Fraudulent jurisdiction for, void 254
No decree for alimony without personal notice 263
DOGS.
Shooting of by police 218, 290
Property in 218, 290
DRAINAGE OF SWAMP LANDS.
Act to compel is valid 287
Cost of may be charged to county and owner 287
DRED SCOTT CASE.
Annulled by Fourteenth Amendment 29
534 INDEX.
Page.
DRUMMING FOR PATRONAGE.
May be forbidden 226
DRUNKARDS.
Restraint of constitution! 280, 309
DUE PROCESS OF LAW.
Amendment does not define it 15, 45, 64, 139, 144, 155
General definition of . . . 139, 155
Can not be defined in advance 64, 139
Equivalent to "Law of the Land" 140, 142
Born of Magna Charta 8
^^Process used must be alike for all 142
New laws do not violate the clause 64, 144
What is, depends on case 145, 156
Judicial process not always necessary 146, 148, 157
Judicial process necessary when life or liberty at stake 147
State may dispense with indictment 144, 307, 429
Criminal and civil jurisdiction consistent with 168, 170
Taxation without notice or suit is 150
Distress for rent, or tax, is 145, 161
Police action is 167, 175
Power of eminent domain is 464
Clause of in Amendment V. binds only nation 8, 103
Clause of in Amendment Fourteen binds only states 46
Clause of binds all state agencies 97
Mere errors of courts do not violate clause,
142, 282, 348, 421, 429
Punishment of contempt without jury is 162, 336, 473
Chancery jurisdiction is 147, 285, 473
Does not demand jury in state court 82, 145, 279, 468
Usual course in the matter is 146, 153, 155
Due process at adoption of amendment remains such 157, 168
f Death sentence without jury on confession is 161
Amendment does not enlarge due process 168
Changes with time 64, 292, 320
Demands jury in some nuisance cases 216
Personal judgment without notice is not 244
Sentence for felony without presence of accused is not 271
Judgment in rem without notice is 251
Forfeiture for taxes is 154, 260
Does not require jury in equity 147, 285, 473
Remedies fixed by state and may change,
147, 273, 282, 289, 292, 311, 343, 468
Does not require jury of mixed color 328
i Does not require jury in eminent domain cases 468
INDEX. 535
E
Paee
EASEMENT, PUBLIC.
Not affected by amendment 288
EIGHT HOUR LABOR LAW.
Is it valid 214, 222, 350
EJECTMENT.
An in rein proceeding 25"
ELECTION CONTEST.
Act regulating, valid 279
Act defeating one for bribery in election 292
ELECTRICITY.
Execution by, law valid 93
EMIGRANT AGENT.
Tax on, valid 357
EMINENT DOMAIN.
Definition 464
Amendment does not affect power of states 464
Requires due process 465
State may fix the process 465, 467
Taking must be for public purpose 160, 163, 306, 310, 469
Compensation must be paid or secured 163, 313, 466
Compensation may be fixed by jury or otherwise 163, 468
Appeal lies to Supreme Court 465, 470
Franchise may be condemned 366, 469
Nation has power of 469
Property injured under lawful police requires no compen-
sation. 148
Taking water without pay illegal '. . . .241
Is an in rem proceeding 255
May be on personal notice or publication 255
Amendment applies to 280, 465
Exclusive charters subject 366
Fifth Amendment restrains nation as to 465
Necessity of taking is for legislature 468
ENFORCEMENT OF AMENDMENT.
It is first duty of states 46
Of nation on failure of states 46, 51
Federal processes for 84, 128, 381, 420, 425, 432, 449
ENGINEERS, LOCOMOTIVE.
May be examined as to color blindness 228
536 INDEX.
Page.
EQUAL PROTECTION OF LAW.
Amendment does not define it 15, 315
, - Can not be defined in advance 315
Clause same as Declaration of Independence 316
General definition of 315, 321
Is for all persons 14, 105, 318, 320
Binds all agencies of state 97, 319
Classification is not contrary to clause,
321, 324, 331, 337, 341, 352
Classification must not be arbitrary 322
Colored persons' right as jurors is under this clause. . . .82, 326
Taxation as affected by clause 323, 351
Corporations protected by clause 43, 319
Aliens protected by . . 14, 103, 106, 319
Law or procedure to be alike for all similarly situated,
316, 320, 342
Separate cars for colored and white persons 87, 88, 356
Separate schools for colored and white persons 89
No bar to classification for taxes 323, 337
Progressive inheritance tax does not violate 340
Tennessee Case defined it before Amendment 316
Changes with time. 170, 230, 320
EQUITY.
No jury right in 147, 285, 473
ERROR IN TRIAL.
Mere error not undue process 142, 282, 348, 421, 429
ESCAPED CONVICT.
His appeal may be dismissed 287
ESCHEAT.
An in rem procedure 256
^ESTRAY LAWS.
Are constitutional 226
Proceeding is in rem , 264
EVIDENCE.
State fixes and changes rules of 292, 311, 418
How far state rules go in federal courts 418
Accused as witness, examination of 311
Tax deed as evidence -. 166, 283
Statutes making certain, proof of guilt 283
EXCLUSIVE CHARTERS, GRANTS, CONTRACTS.
Are valid 82, 132, 178, 181, 193, 358
Are strictly construed against grantee 362
INDEX. 537
Page.
EXCLUSIVE CHARTERS, GRANTS, CONTRACTS Continued.
Must amount to contract to be valid 361
Must be for public purpose 370
Right to repeal or modify 364
Exemption from taxes 366
EXECUTION OF DEATH SENTENCE.
By electricity, law valid 93
Governor may fix day by statute 273
EXEMPTION.
From taxation valid 336, 353, 366
Repeal of 368
Must be for public purpose 370
Must amount to contract 361, 366
Xone, if state constitution forbids 368
Strict construction of 366
EXPATRIATION.
What 20
Right exists 20
How effected 22
Destroys citizenship 20, 24
EXPORTS AND IMPORTS.
No state taxation on 159
EXPRESS COMPANY.
Taxation of 305, 332, 353
F
FEES OF ATTORNEYS.
Act to include in costs against railroad, valid 335
FEDERAL PROCESS TO ENFORCE AMENDMENT.
Appeal to United States Supreme Court 420
Constitutional question must exist 402, 420
It must be real, not pretense 424
No amount required for such appeal 422
By habeas corpus 432
By removal to federal from state court 425
No injunction from federal to state court 424, 431
No appeal to U. S. Circuit Court from state court 424
By mandamus 445
By congressional action 449
538 INDEX.
Page.
FEDERAL QUESTION.
Must exist under amendment in federal courts 402, 420
Must control case for appeal from state to Supreme Court,
404, 421
What is federal question 397, 402, 420
Mere error of state court not, unless against amendment,
142, 282, 348, 421, 429
Must exist for habeas corpus for state prisoners 439
FEDERAL SECURITIES AND SALARIES.
No tax by state on 159
Nor on those of state by nation 159
Fellow servants, act to make employers liable for negligence
of, valid 180, 325
Federal courts not bound by state decisions as to 417
FENCING RAILROADS.
Act to compel is valid 217, 325
FILIPINOS.
Not citizens 32, 39
Children of are 34
Can not be naturalized 32
Governments of by congress 34, 39
Entitled to personal rights of liberty 34, 36, 40,43
FIRES.
Act making railroads liable for, valid 180, 335
Excluding them from benefit of act to prevent fires, void. . . .335
FISH.
Laws to preserve are valid 220, 312
Sale of in certain places can not be prohibited 292, 310
State may limit right to catch to its own people 312
FLAG, NATIONAL.
Use of as advertisement lawful 333
Does Constitution follow flag ? 34, 36, 40
FOOD ADULTERATION.
Law against, valid 222
FORESTALLING AND REGRATING.
Unlawful by common law 131
Trust combinations against law of 131
FORFEITURE OF LAND FOR TAXES.
Is constitutional 150, 260. 287
FREEDOM OF CONTRACT AND TRADE.
Protected by amendment 109, 130, 343, 371
I\DI:\. 539
Page.
FREE PASSES ON RAILROADS.
Act compelling is void 241
FREIGHT RATES.
May be regulated 181, 189, 196, 342, 369
Board may fix 198
Must be reasonable and give some profit MM), 198
FRUIT TREES.
Destruction of diseased may be required 224
G
GAME.
Preservation of 127
No private property in 125
Held by state in trust for people 127
GAMING.
Legislation against, valid 232
Contracts made in, void 232
GARNISHMENT.
In rem proceeding and valid 266
GAS, NATURAL.
Waste may be restrained by statute 124, 222
"GOVERNMENT BY INJUNCTION."
What it is 471
So-called held constitutional 471
GRAND JURY.
State may dispense with 144
State may proceed by information 144
GRANTS, EXCLUSIVE.
Are valid 82, 132, 178, 181, 193, 358
Construed strictly against grantee 362
Right to repeal 364
Exemption from taxes 364
Must be for public purposes 370
Must amount to contract to be valid 381
540 INDEX.
H
Page.
HABEAS CORPUS.
A means of enforcing amendment 432
Lies to relieve one held in violation of amendment 432
Lies in federal court against state in such case 432
Lis for federal officer prosecuted by state 439
Does not lie for state officer prosecuted by nation 439
Appeal to Supreme Court lies for state in case of 445
Used with caution by federal courts against state authorities,
433
Appeal is preferred by Supreme Court 435
State criminal jurisdiction over federal officers 432, 439
Habeas corpus not a writ of error 434
Necessity of federal question for, in federal courts 439
Not used by federal courts to obstruct state procedure 438
HABITUAL CRIMINALS.
Punishment on second conviction 280, 355
HAWAIIANS.
Are citizens 43
HEALTH, PUBLIC.
State and municipalities have large power to preserve,
169, 172
HOMESTEAD, RIGHT OF.
A federal privilege protected by amendment 94
HOTELS.
Can charges of be regulated ? 182
Colored persons in 84
HUSBAND.
Act divesting curtesy of, void 273
I
IMPROVEMENTS.
Assessment on lot owner for 1 64
Must be notice 164
Assessment must be by value to property, not by foot 165
INCOME TAX.
State and nation may impose 378
United States Supreme Court holds it constitutional 378
INDIANS.
Not citizens 18, 29
Can be naturalized . . 30
IXDKX. 541
Page.
INDICTMENT.
State may substitute information for 144, 307, 428
Form of is alone for state 289
INEBRIATES.
Detention and control of 280, 309
INFECTIOUS DISEASES.
May be regulation to prevent 169, 172, 176, 178
Removal or exclusion of persons affected is lawful 176, 227
Quarantine valid against 228
INFORMATION.
May be substituted for indictment 144, 307, 428
INHERITANCE TAX.
Is constitutional 340
INJUNCTION.
None from federal to state court 424, 431
"Government by injunction" 471
Penalty on dissolution of, act valid 241
To prevent prosecution of suit in another state 256
Against strikes 471
Contempt of punishable without jury 336, 473
INNKEEPER'S LIEN.
Is valid 350 .
INNS.
Can state fix charges of 182
IN REM PROCEEDINGS.
Valid without personal notice 246, 251, 257
Attachments are 252, 257
Divorce is in nature of 253
Suits as to personal status are 253
Recovery of specific property is 252, 257
Suits to charge or divide property are 252, 257
Condemnation of land is 255
Escheat is 256
Distress for rent is 264
Suit to remove ctoud from title is 252. 257, 265
Ejectment is 257
Probate of wills is 263
Grant of administration is 255
Suit to cancel deed is 257
Suit to foreclose mortgage is .... .- 257
Suit for specific performance is 263
542 INDEX.
Page.
INSANE CONVICT.
Jury to try his insanity 283
INSANITY.
Is jury necessary to ascertain 307
INSPECTION.
Of body on trial 235
Of mines 209
Of milk
Of food 222
INSURANCE POLICY.
Act fixing value is valid 332
Act requiring payment in given time is valid 343
INTEREST, ADDITIONAL.
Act giving on affirmance of judgment valid 314
INTERSTATE COMMERCE.
See COMMERCE.
IRRIGATION OF ARID LAND.
Act for, valid 287
J
JUDGE.
Must be de jure or de facto for judgment 291
JUDGMENT.
Without personal notice void 244, 248, 263
Otherwise in in rem proceedings ' .246, 251
Service of process outside state, effect of 248, 265
Want of jurisdiction may be shown against 255
No personal judgment on publication 248
On notice to one partner only 256
Denial of defense renders void 251, 287
In one state not a lien in another 264
Effect of in another state 246, 247
Legislature can not impair 297
In criminal cases 271
Decree to transfer land in another state 247, 249, 265
As to set-off, notice of 250
No personal on non-resident without personal notice 247
Deposit as condition of defense can not be required 287
Judge must be de jure or de facto for 291
JUDICIAL PROCESS.
Not always necessary for due process 146, 148, 157
INDEX. 543
JUDICIAL LEGISLATION.
It is void 295
JURISDICTION.
Judgment without is void 244
Want of may be shown against judgment 255
Personal notice necessary for personal judgment 244, 263
Personal notice not necessary in in rem cases 246, 251
Federal question necessary in federal courts 402, 420, 429
Federal question necessary on appeal to Supreme Court,
404, 420
Amount for in Circuit Court on constitutional question,
402, 404
Xo amount required on appeal to Supreme Court 422
Fraudulent to get divorce 254
Appearance to question, statute may make general appearance,
256
To pass title to land outside the state 247, 249, 265
None in federal court over state crime 428
None in state court over federal crime 428
Of Circuit Court, of habeas corpus for state prisoner 432
Must be federal right for it 439
No federal to enjoin state court 424, 431
Pretense, not good in Supreme Court 424
Court first in possession of subject has prefereice 427
JURORS.
Colored persons' right to serve as 82, 326
Women not entitled to serve as 356
State fixes qualifications 327
Mixed color not required 328
JURY.
Must be twelve, unless state constitution otherwise provides,
144, 286
Unanimity of may be dispensed with by state. , % 288
Colored persons' right to serve on 82, 326
Mixed of white and colored not required 328
Women no right to serve on 356
Waiver of . . . . 311
Struck jury, valid 281
No right to in equity 147, 285, 473
Nor in lunacy inquisition ; 307
Nor in disbaring attorney 279
Nor in contempt case 162, 336, 473
Nor in taxation 146
Nor in nuisance case, in equity 147, 216
544 INDEX.
Page.
JURY Continued.
Nor in municipal trials 273
Nor in distress case 161
Nor in condemnation of land 163, 468
Not guaranteed in state court by amendment 82, 145, 279
Challenges of jurors may be regulated 343
State may fix number to constitute 144
Death sentence on confession without 161
Not required merely to fix punishment 309
State may fix qualification of jurors 327
K
KENTUCKY GOVERNORSHIP CASE.
Declares independence of state governments 120, 123
Holds public office not private property 120
Holds right of state to declare election of state officers finally,
120
KENTUCKY AND VIRGINIA RESOLUTIONS.
Referred to.. . .49
L
LABOR.
Act giving preferred lien valid 234, 336
Hours of, statute limiting 214, 222, 350
Payment for in advance 356
Payment of in scrip 201, 203, 205, 208
LAND.
Forfeiture for taxes valid 154, 260
Registration of title to 259
Torrens System of Registration valid 260
Title to governed by state law in federal courts,
128, 179, 245, 395
LAUNDRIES.
Power to regulate and locate 214, 227
"LAW OF LAND."
Same import as "due process of law" 140, 142
LEGISLATURE.
Can not exercise judicial function 295
INDEX. 545
Page
LIBERTY.
What it means 109, 130
Not merely freedom from imprisonment 109
Covers right to go and come, labor and contract 109, 343
Protected by Fourteenth Amendment 7, 11, 109
Filipinos and Porto Kicans entitled to civil liberty,
34, 36, 40, 43
Supreme Court final judge of liberty 388
LICENSE.
May be required for business 151, 298
Different rates on different businesses 151, 323, 333
Classification of, constitutional 151, 323
Federal a mere tax, not a permit 300
LIEX.
Preferred for labor is valid 234, 336
Judgment not a, in another state 264
Of innkeeper, valid 350
Preferred for supplies to certain companies valid 355
LIFE.
Protected by amendment 11, 103, 107
Includes everything pertaining to the person 109
LIFE. LIBERTY AND PROPERTY.
Protected by amendment 7, 103, 107
LIFE INSURANCE.
Act giving penalty for non-payment valid 343
LIMITATION, STATUTE OF.
Are valid 274
Extension and shortening of time, when valid 274, 276
Act of as to tax deed 313
As to appeal from railroad board 357
LIQUORS, SPIRITUOUS.
See ARDEXT SPIRITS.
LIVERY STABLES.
Power to regulate 358
LOG BOOM.
Rates of may be fixed by state 181, 184, 192
LUNACY INQUEST.
Does it require a jury ? 307
546 INDEX.
. M
Page.
MAGNA CHARTA.
History and character 8, 98, 317
MANDAMUS.
From Supreme to state court 445
To compel railroads to serve all alike 188
To inferior courts on reversal of judgment 447
Not to restore disbarred attorney 448
MARRIAGE. ?
Between white and colored may be prohibited by state 82
MEATS.
Selling in certain localities can not be prohibited 292, 310
MECHANIC'S LIEN LAW.
Is valid 283
Is lien for sub-contractor valid ? 284
MEDICINE, PRACTICE OF.
License or certificate may be required 81, 239
MILL.
Act granting private right valid 279
MILK.
Ordinance requiring inspection, valid 222
MINES.
Act for inspection and ventilation valid 209
MINORS IN SALOONS.
Act prohibiting is valid 94
MOBS.
Municipal liability for 225
MONGOLIANS.
Can not be naturalized 32
MONOPOLIES AND TRUSTS.
Law against 82, 129, 130, 134, 136, 217, 351, 371, 476, 480
Unlawful by common law 131, 373
Exclusive grants valid 132, 136, 181, 185, 192, 358
See EXCLUSIVE GRANTS.
MORTGAGES.
Void mortgages of foreign may be validated 315
IXDEX. 54;
Page.
MUNICIPAL CORPORATIONS.
Have police power 167, 174, 211, 230
Liability for mobs 225
Have taxing power 299, 354
But only as legislature or charter gives it 354
Can not delegate police power 212, 369
Sanitary regulations of valid 213
_:ulation of laundries by 214, 227
Annexation of land to 536
A-sessment for improvements 164
Notice of necessary 165
Are deemed the state when violating amendment 97, 319
Classification of for public burdens valid 333
Powers of may be changed by legislature 355, 365
May prohibit obstruction of streets 166, 229
May abate public nuisances 147, 215, 230
Ordinances presumed valid as to police 212
But must be reasonable 212, 223
Courts may hold police ordinance void.. 171, 173, 175, 189, 212
May destroy thing working public nuisance 148, 215, 230
Municipal trials require no jury 273
Liability to lot owner for railroad in street 290
Void bonds of may be cured by legislature 313, 345
Exclusive grants by valid 358, 364
Exclusive grants of strictly construed 364
Must be for public purpose 370
MUNN V. ILLINOIS.
Declares power of states to fix rates of public corporations . . 185
N
NATION AND STATE.
Relations of 49, 52, 123, 381, 449
Nation's power over state increased by amendment,
9, 12, 59, 103
Nation has power to acquire territory 35, 37
Nation has power of eminent domain 469
Nation has exclusive power over interstate commerce. .128, 177
Nation has final power to construe and enforce amendment,
47, 49, 51, 388
Nation not restrained by Fourteenth Amendment. . .46, 108, 130
Nation has police power for its purposes 179
Power of congress to enforce amendment 84, 116, 128, 449
Nation has power to enforce amendment by appeal from
state to Supreme Court 420
And by habeas corpus 432
And bv removarl from state to federal court 425
548 INDEX.
Page.
NATURALIZATION.
Who entitled to 31, 32
Only whites and Africans 31, 32
Women are 31, 32
Are Indians ? 30
Gives federal citizenship 7
And gives state citizenship if party resident in state 7
Porto Ricans may be naturalized 33
Mongolians can not be naturalized 32
NATURAL GAS.
Waste may be restrained 124, 222
NEW LAWS.
Do not violate amendment 144, 320
NEW TRIALS.
Number may be limited 273
Legislature can not grant 297
NON-RESIDENT.
No personal judgment against by publication 247
May be taxed on investments in state .302
NOTICE.
Necessity of in legal proceedings 244, 263
In assessment for improvements 164
Not in taxation 150
Personal not necessary in in rem proceedings 246, 251, 257
NUISANCE, PUBLIC.
May be abated without jury 147
Question whether a nuisance, a judicial one 174, 212
Must be in fact a nuisance 174
Equity has jurisdiction to restrain or abate 147. 230
Thing creating may be destroyed , . 148, 215, 230
City may declare things to be a nuisance 213
O
OFFICE, PUBLIC.
Not private property 119, 165
Removal from in mode fixed by state, valid 165
Removal from does not require jury 165
State only can settle title to its offices 120
Salary of federal, not taxable by states 159
Salary of state, not taxable by nation 159
I\DEX. 549
Page.
OFFICERS.
Habeas corpus from federal court for federal officer in cus-
tody of state 439
But not from state for one in federal custody 439
OLEOMARGARINE.
What is 218, 220
Legitimate article of interstate commerce 218, 220
How far state may regulate manufacture or sale 218, 220
OPITM SMOKING.
Prohibition of by state 227
OSTEOPATHY.
Practice of 239
OVERRULED STATE DECISIONS.
Effect of in federal courts 407, 411
Stare decisis 409, 412
P
PARADES, PUBLIC.
May be prohibited 81
PARTITION.
An in rem proceeding 252, 257
PASSES, FREE.
Railroads can not be compelled by state to give 241
I' \-KNGERS, INTERSTATE.
No tax on by state 159
PASSENGERS.
Statute for injury to by railroads valid 179
PATENTED ARTICLES.
Reflation of sale of by state 234
Monopoly in. valid by Constitution 361
PAUPERS AND CRIMINALS.
State may exclude 176
PERSONS PROTECTED BY AMENDMENT.
Aliens and others, though not domiciled are. 14, 43, 47, 106, 319
Corporations are 43, 319
All persons under jurisdiction are 14, 43, 106
PERSONAL RIGHTS.
Protected by amendment 94, 109, 130, 288
550 INDEX.
Page.
PETROLEUM.
Illumination by, can not be prohibited 310
PHYSICIANS.
License or certificate may be required of 81, 239
POISONS.
Sale of may be regulated or prohibited 224
POLICE POWER.
Amendment does not affect state power of,
168, 186, 321, 384, 428
General nature of power 169, 171, 174, 210, 219, 222
Can not be denned in advance 171
All persons, property and business subject to. 170, 174, 235, 300
Is basis of all criminal and civil law 107, 128, 169, 170
Is an original power of the states 167, 168
State may under it protect life and health in mines. . 209
Congress has power for federal purposes 179
Municipalities have power 147, 211, 213
Ordinance of municipality must be clearly one of police... 212
Ordinance must be reasonable, not arbitrary act 212, 223
Delegation of, how far valid 174, 211, 212
Property may be destroyed under 148, 170, 215, 230
Altered conditions enlarge it 64, 170, 230, 320
State can not divest itself 169, 178, 185
State can not contract or bargain it away,
169, 178, 181, 185, 192
How far affected by nation's power over interstate commerce,
169, 177
>ower not unlimited 171, 174, 223
Whether act is one of police is at first for legislature,
171, 175, 189, 212
But final decision is with courts 171, 173, 175, 189, 212, 223
Act must be for public purpose 172, 212
Not void merely because it injures 170, 321, 324
Under it sale of liquor may be regulated 79
State may exclude criminals, paupers, lunatics 176
Contract, right of, subject to 179, 232
Gives state power over rates of carriers and other public
business 181,184,192,342,369
Sanitary regulations valid 213, 223
As to oleomargarine 218
Privileges subject to 235
Sale of certain things in places 292
Licenses warranted by 299
Classification under 151, 321, 323, 327, 331
Must be same for all alike situated. . . .342
INDEX. 551
Page.
PORTO RICANS.
May be naturalized , 33
Not citizens 32, 39
Children born since acquisition are 34
Entitled to personal rights 34, 36, 40, 43
PORTO RICAN TARIFF.
Is it valid? 42
POSSESSION PENDENTE LITE.
May be regulated 234
PREEMPTION AND HOMESTEAD.
A federal right protected 94
PRESIDENTIAL ELECTORS.
How appointed 73, 74
PRETENSE JURISDICTION.
Not good in federal courts 424
PRICES.
Agreements to control, unlawful,
82, 130, 134, 136, 217, 351, 371
PRIVATE BUSINESS.
Can not be regulated by state 181, 184, 200, 320, 334
Can it be limited in place or time? 292, 310, 331
PRIVIES.
May be regulated by municipalities 229
PRIVILEGES AND IMMUNITIES.
Federal and state different 56, 69
No new ones given by amendment 47
Only federal protected by amendment 56, 66 ,
What are? 56, 58, 62, 64, 66 1
Supreme Court refuses to define them in advance 46"
State must not abridge federal 7
To vote or practice law not a privilege 73, 81
Are subject to police power 235
Privilege clause not necessary 62, 96
PROCEDURE, STATE.
Regulated exclusively by state,
147, 273, 282, 289, 292, 294, 311, 343, 468
But state must give some remedy for rights 282, 293, 295
552 INDEX.
Page.
PROCESS.
Service necessary for personal judgment 244, 248, 263
Service out of state, effect of 248, 265
Service on one partner 256
Judicial, not in every case required 146, 148, 157
PROPERTY.
Protected by amendment 7, 113, 118, 358
What is 118, 358
Title governed by state law 179, 245, 395
State decisions govern title to 128, 179, 395
Federal court say, what is 388
Subject to police regulation 170, 174, 369
Exclusive grants and charters are 358
May be destroyed to abate nuisance 148, 170, 215
Public office is not private property 119, 165
None in wild animals 125
Not to be taken for public use without pay 163, 313, 466
Can be taken only for public use 306, 310
Transfer governed by state law 128, 179
Use of on certain streets 351
Franchises are property 359
PROSTITUTES.
Regulation of 358
PUBLIC OFFICE.
Not private property 119, 165
Removal from without jury 165
State regulates removal 165
Salary of state or federal not taxable 159
PUBLICATION.
No personal judgment on 244, 247
Sufficient under statute in certain cases 254
Statute must be complied with 254
Good in ejectment, divorce, or other in rem cases 252, 257
PUNISHMENT.
Additional on second conviction, valid . .280
Q
QUARANTINE.
Regulations for are lawful 228
INDEX. 553
R
Page.
RAGS, OLD.
Storage of, may be regulated 213
RAILROADS.
Rates of may be fixed by state 181, 184, 190, 369
Also rates of other corporations 187, 193, 199
Act must not render railroad worthless to owners. 190, 196, 241
Must allow fair return for investment 190, 198
Must not divest company of control 195
Legislature may judge of fairness of rates 196
But must not make rates conclusive 194
Exemption in charter from state control .... 185, 188, 192,
State may empower a board to fix rates
Must serve all alike 188
Compelled to do so by mandamus 188
Taxation of rolling stock : 304, 349
Act for liability for accidents valid 179, 180, 343,
Act requiring them to pay state commission valid 180
State may regulate speed 229
Terminals, use of by others .Sy^-^ .233
Compulsory fencing by \s^' 21 *' 325
Stopping trains at points, act for valid. Y. 218"
Grade crossings, power of state over 221
Steam heating may be required 304
Act making liable for acts of fellow servants, valid. . . .180, 325
Liability for fires, act valid 180, 335
Wages, act to compel payment valid 180, 206, 215, 356
In streets, power of city over 229
Free pass, legislature can not require 241
Act against requiring employees to waive damages 288
Separate cars for colored people 87, 356
Exemption from taxation 388
Excluding from act to prevent fines, void 335
RAILROAD CROSSINGS.
State may compel removal of grade crossings 221
RATES.
By railroads and other corporations may be regulated,
181, 184, 189, 342, 399
Board may fix 198
Must be reasonable and give SQme profit 190, 198
RECOGNIZANCE.
Act waiving signature, valid +. 291
554 INDEX.
Page.
REGISTRY OF VOTERS.
Statute for, valid 233
REGISTRATION OF LAND TITLES.
Act requiring, valid 259
Torren's System of, valid 260
REGRATING, FORESTALLING, ENGROSSING.
Are contrary to law 131
REMEDY.
Is for state to prescribe. .147, 273, 282, 289, 292, 311, 343, 468
May be changed 292, 294, 468
REMOVAL.
From state to federal court 425
Means of enforcing amendment 425
Must be federal question for 425
Amount required for 425
State judgment void after petition for 426
Must remand prisoner to state, when 427
RENT.
Distress for, is due process 161
REPEAL OF CHARTER.
When may be made 364
REPUTATION.
Is it protected by amendment? 119
RESTRAINT OF TRADE.
Agreements and combinations for, unlawful
82, 130, 136, 217, 351, 371
RIGHT OF CONTRACT, LABOR AND PROPERTY.
Are protected by amendment 7, 109, 343
ROADS.
Taking land for 313
ROLLING STOCK.
Taxation of . . . .304
S
SALARY.
No state tax on federal, nor federal on state 159
SALOONS.
Screens before windows 213
May be regulated^ 213
INDEX. 555
Page
SAM TAR V R EGULATI ONS.
Competent for municipality to make 213, 231
SCHOOLS.
Separate for colored children 89
SCREENING COAL ACTS.
Are they valid 203,, 206, 208
S( RIP.
Payment of wages 201, 203, 205, 207, 208, 209
SK> KSSION FROM UNION.
Right of 49
Denied by Civil War 52, 103
SECOND CONVICTION.
Act for greater punishment, valid 280, 355
SECOND SENTENCE
After reversal, is valid 231
SECURITIES.
No tax by state or nation on, of each other 159, 342
SERVANTS.
Legislation to protect, valid 180, 209, 220
Fellow servants' act valid . 180, 325
Payment of in scrip, acts for 201, 205, 207
Stated payment of wages required 180, 206, 215, 220
Enticing away, act against 242
Preferred lien for, valid 234
Act against employing Chinese void 330
SET-OFF.
Must there be notice of? 250
SEWERS.
Charge for use of public, valid 232
SHAREHOLDERS, NON-RESIDENT.
Suit to settle rights of on publication valid 271
SLAUGHTER HOUSES.
Regulation of 217
SLAUGHTER HOUSE CASES.
Principles of 82
SLAVES.
Had no civil rights 117
Amendment conferred such rights 103
Return of fugitive 450
556 INDEX.
Page.
SOLITARY CONFINEMENT.
Of condemned persons lawful 93, 243
SPANIARDS IN PHILIPPINE ISLANDS.
Are citizens 39
SPECIFIC PERFORMANCE.
An in rem proceeding 263
SPEECHES.
In streets may be prohibited 166
STARE DECISIS.
Doctrine of 409, 411
STATE DECISIONS.
Generally followed in federal courts on state law,
179, 245, 393, 395, 405, 416, 428
STATE GOVERNMENTS.
Independence of 123
Powers limited by amendment 9, 11, 59, 103, 384
Have sole jurisdiction over crime against state 428
STATE RIGHTS.
Advocates of, their views 8, 10, 49, 52
Relation of nation and states 49, 53, 123, 381, 449
STATUTE OF LIMITATIONS.
Are valid 274
Extending and shortening time 274, 276
Act as tax deeds 313
Appeal from railroad board 357
STORE.
Act against corporations owning, void 208
STREAMS.
Polution of, may be prohibited. 221
STREET.
Obstruction of ordinance against, valid 166, 229
STRIKES.
Injunction against 471
SUFFRAGE.
Amendment does not confer or affect 18, 73
Is left to states 73
Women not entitled to IB, 74
Citizenship does not confer 18, 47, 73
557
Page.
S U F FR AGE Continued.
For congressmen 73, 75
For presidential electors ; 73
Nation has no voters 73, 75
Suffrage in territories fixed by congress 78
Colored voters 73, 76
Federal protection of right 78
State must not deny merely for color 73, 76
May deny on ground other than race or color 77
SUNDAY LAWS.
Validity of 214, 218
SUPREME COURT.
Appeal to is means of enforcing amendment 420
Final arbiter of amendment 47, 49, 51, 389
Writ of error is process of appeal in both equity and law
cases 424
Case must involve rights under amendment 52, 404, 420
And state decision must be against right claimed under
amendment 421
Federal question must be real, not pretense 423
Federal question must be raised by record in state court 423
Federal question must be controlling 404, 422
Constitutional question dispenses with amount for appeal 422
Jurisdiction for appeal from state court 420
Final arbiter on all questions of federal constitution or law,
47, 49, 51, 389
No jurisdiction for mere error of state court on state laws,
142, 282, 348, 421, 429
Decides finally what are contracts and property 388, 399
Appeal from state criminal decision if amendment involved. .428
Follows state courts as to state law 179, 395, 405
Follows state court as to title to land and property,
179, 245, 395
Overruled state cases, effect of in 407, 411
Mandamus to state court from 445
Its vast responsibility 59
Its conservatism in the past 13, 60
Fate of Union hangs upon it 13, 60
SURETYSHIP.
Charge against estate for 333
SURVEY OF LAND.
May be made for railroad without compensation 162
SWAMP LAND.
Drainage of, may be enforced 287
558 INDEX.
Page.
TARIFF.
As to newly acquired territory 42
Porto Rican tariff act 42
TAXATION, STATES' POWER.
Not impaired by amendment 149, 298
Breadth of 148
Must be only for public purposes 160
Classification of subjects lawful.. 151, 323, 333, 337, 341, 352
State fixes mode of 148, 149, 151
Extent of, is left to states 149
Taxation on licenses valid 151, 298
No tax on federal security, property or salary 159, 342
No federal tax on state bonds, salary or property 159
Power of, may be conferred on towns and counties. . . .298, 354
No tax on interstate passengers or freight 159
No tax on exports or imports by state 159
Inheritance tax valid 340
Assessment without hearing is due process -. . . . .148, 155
Uniformity of 351, 353
On railroad rolling stock 304, 349
On telegraph and express companies 305, 332, 353
Only on property within state 158, 303
Investments of nonresidents, subject to 302
Usual modes of, are due process 146, 155
Different tax on different subjects 151, 323, 333, 337
State may exempt property from 336, 353, 366
State can not exempt contrary to its constitution 368
State can not discriminate unfairly between persons in
taxing 352
Entire equality impracticable 323, 324
Must apply to all alike situated 323, 339, 351
Judicial process not necessary 145, 148, 150, 27tf
Forfeiture of property for taxes valid 154, 260, 287
Each government has power of 1 60
Validity of, a judicial question 161
Act curing irregular taxation 242, 354
A board may assess railroads , 279
Bank stock taxable where bank is 304
Deduction of debts 336
On corporations 340
On immigrant agents 357
Charter may exempt from 360
But exemption must be clear and amount to contract 368
On incomes. . . . 378"
1XDEX. 559
TAXATION, MUNICIPAL.
State may confer the power 299, 354
Municipality can tax only what statute allows 299, 354
Municipality may exempt from, if statute allows 299, 354
TAXES.
Land forfeiture for, is due process 154, 260, 287
Imprisonment for, is due process 154, 157
Distress for, is due process 145, 155
Action not necessary to collect 146, 155
Exemption from, how far valid 336, 366
Penalty on corporations and others for, valid 154, 287, 298
None on interstate commerce 159
None on federal bonds, salary or property 159, 342
None on exports or imports 159
On investments of nonresidents 302
Summary proceedings for, valid 158
On licenses is a tax 151, 298
Deduction of debts from 336
On incomes 378
TAYLOR VS. BECKHAM.
See KENTUCKY GOVERNORSHIP CASE.
TERRITORY.
Nation has power to acquire 35, 37
Congress power to govern 36, 39, 78
Must be free government in 34, 40, 43
Congress defines suffrage in territories 78
TICKET BROKERAGE.
Act against, held void 281
TITLE TO PROPERTY.
Tested by state law and decisions 179, 246, 395
TOLLS.
Are unequal, valid 351
TORRENS SYSTEM.
Registration of land titles 200
TOWNS.
See MUNICIPAL CORPORATIONS.
TRADING STAMPS.
Act against. 309
560
Page.
TRIAL.
Mere error in on state law, not contrary to due process,
142, 282, 348, 421, 429
Without indictment on information 144
Unanimous verdict may be dispensed with 288
TRUCK STORES.
Is act against, valid? 202, 203, 204, 208
TRUSTS AND MONOPOLIES.
Discussion of 82, 129, 130, 181, 185, 217, 351, 371, 476
U
UNION.
Powers of increased by Amendment Fourteen. .. .9, 11, 59, 103
Relation of to states 49, 52, 123, 381, 449
See title NATION AND STATES.
USE OF PROPERTY.
Ordinance against in localities, void 292, 310, 331
USURY LAWS.
Are valid 233, 346
By building associations 345
Act waiving in city bonds, valid 313
V
VACCINATION.
May be required to attend school 94, 225
Compulsory by statute, valid 94, 225
VAGRANTS.
Control over 280, 309
VALUE IN CONTROVERSY.
Amount required for jurisdiction in U. S. Circuit Courts
402, 404
None for appeal to Supreme Court on constitutional ques-
tion 422
VENTILATION OF MINES.
Statutes compelling are valid 209
VERDICT.
Unanimous, may be dispensed with by state 288
INDEX. 561
Page.
VIADUCT.
Compulsory repair of by one company, though used by an-
other 336
VIRGINIA AND KENTUCKY RESOLUTIONS.
Referred to 49
VOID CONTRACTS.
Act to validate 278, 313, 345
Procedure, can not be cured 283
VOTERS.
Amendment does not make 73
Women not 18, 74
Colored are under Fifteenth Amendment 76
Federal protection of 78, 462
State says who are 73
No federal voters, in states 75
In territories, congress prescribes 78
Registry may be required 233
W .
WAGERING CONTRACTS.
Are void 232
Legislation against, valid 232
WAGES.
Preferred lien for, valid 234, 336
Act for stated payment of 180, 206, 208, 215, 348
Act against payment of in scrip 201, 204, 207
Payment of in advance 356
WAIVER OF JURY.
May be in criminal cases 311
On confession in capital case 161
WATER.
Taking without pay, illegal 241
WATERS.
Polution of may be prohibited by state 221
WATER CLOSETS.
May be regulated by municipalities 229
WATER RENT.
Lien for , 221
WATERWORKS.
Citv mav fix rates. . . .193
562 INDEX.
Page.
WEAPONS, DEADLY.
Laws against carrying, valid 92, 290
WEBSTER, DANIEL.
His definition of due process 140
Declaration as to Supreme Court of United States 60
WHITES AND AFRICANS.
They only can be naturalized 31, 32
WILLS.
Governed by state law 128, 179
Probate of, an in rem proceeding 252
Probate of, binds world 252
WITNESS.
Accused as, examination of 311
WOMEN.
Not made voters by Fourteenth Amendment 18, 74
Not made jurors by Fourteenth Amendment 356
Are citizens 7, 18, 19
Not entitled to practice law by Amendment 81
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