CHAPTER XI:
RIGHTS OF PERSON AND OF PROPERTY
119. Citizenship of the United States.
120. Citizenship of a state.
121. The right of suffrage.
122. The right of serving on juries.
123. Congressional regulation of federal elections.
124. Immigrants and aliens.
125. Personal and property rights.
126. The rights within a state of citizens of other states.
127. Foreign corporations.
128. The I Amendment.
129. The XIII Amendment.
130. The XIV Amendment.
131. The equal protection of the laws.
132. The police power.
Citizenship of the United States.
119. As Miller, J., stated in the judgment in the Slaughter House
Cases, the Constitution, as originally adopted, did not define
citizenship of the United States, although it did, by Section 2
of Article IV, provide that "the citizens of each state shall be
entitled to all privileges and immunities of citizens in the
several states," and, by Section 2 of Article I, declare
citizenship of the United States to be a necessary qualification
for election as a representative in Congress. In view of that
which the Constitution said, and of that which it left unsaid, it
might well have been thought that citizenship of the United
States was dependent upon and only incident to citizenship of a
state, but the point was not judicially determined before the
adoption of the XIV Amendment. In a recent case, (2) however,
Gray, J., discussed at length the meaning of the term "citizen"
as used at common law and suggested that after the adoption of
the Constitution all white persons, at least, born within the
sovereignty of the United States, whether children of citizens or
of foreigners, excepting only children of ambassadors or public
ministers of a foreign government, were native-born citizens of
the United States. An even broader definition of the term was
established by Section 1 of the XIV Amendment, which declares
that "all persons born or naturalized in the Unites States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the state wherein they reside." From and after the
adoption of that Amendment, therefore, the birth within the
United States of any person, whether white or colored, who is
subject to its jurisdiction, or the naturalization of any alien,
makes the person so born, or naturalized, a citizen of the United
States; (3) and that right of citizenship is entitled to
protection under such laws as Congress may enact in execution of
the powers conferred by the XIV and XV Amendments. Section 8 of
Article I of the Constitution authorizes Congress "to establish
an uniform rule of naturalization." It is, therefore, beyond the
power of any state to prescribe the conditions of naturalization,
or to admit to citizenship any alien other than those whom the
acts of Congress permit to be naturalized; (4) nevertheless
aliens may be naturalized by proceedings in courts of the states
in conformity with the acts of Congress. (5)
Citizenship of a state.
120. In Dred Scott v. Sandford, (6) the court determined that a
free negro could not be a citizen of a state, but, in his
dissenting judgment, Curtis, J., showed that it was an historical
fact, that in five of the thirteen original states negroes were
not only recognized as citizens, but also admitted to the
exercise of the right of suffrage, and that many acts of Congress
had, by necessary implication, recognized negroes as citizens;
and the weight of authority supports the position, that each
state could, so far as the Constitution of the United States does
not restrain it, determine the status, and consequently the
citizenship, of the persons domiciled within its territory. (7)
By the terms of the XIV Amendment, "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." Therefore birth, or naturalization in the
United States, followed by residence within the territory of any
state, makes the person so born or naturalized, and so residing,
a citizen of that state.
The right of suffrage.
121. All citizens are not necessarily entitled to the exercise of
the right of suffrage, for the term "citizen," in the
constitutional sense of the term, means one who owes the duty of
allegiance and is entitled to the correlative right of
protection, and it, therefore, includes persons who, by reason of
sex, or age, may not be qualified to vote. The right of suffrage
is a subject of state regulation, and not a privilege, or
immunity, of citizenship protected by the Constitution of the
United States, (8) except in so far as the XIV Amendment protects
it. The Constitution provides, in Section 2 of Article 1, that,
at congressional elections, "the electors in each state shall
have the qualifications requisite for electors of the most
numerous branch of the state legislature." (9) A state may,
without contravening any constitutional provision, deny the
suffrage to women, (10) but by force of the XV Amendment a state
may not, in its limitations on the exercise of the right of
suffrage, discriminate against citizens of the United States on
account of their "race, color, or previous condition of
servitude." A state, therefore, cannot limit the right of
suffrage to the white race. (11) Nevertheless, the power of
Congress to legislate for the protection of the rights conferred
by that Amendment being limited by the terms of the Amendment,
Congress cannot by statute provide for the punishment of state
election officers for wrongfully refusing to receive the vote of
a qualified voter at an election, when that refusal is not based
upon a discrimination against the voter on account of his race,
color, or previous condition of servitude; (12) nor can Congress
by a general statute provide for the punishment of individuals
who bribe persons to whom the right of suffrage is guaranteed by
that Amendment; (13) nor can a conviction in a court of the
United States be sustained under an indictment which charges the
defendant in general terms with an intent to hinder and prevent
citizens of the United States, of African descent, therein named,
in the free exercise and enjoyment of the rights, privileges,
immunities, and protection, granted and secured to them as
citizens of the United States and of a state, without specifying
any particular right, the enjoyment of which the conspirators
intended to hinder or prevent. (14)
As the right of a citizen of a state to vote for
representatives in Congress is derived not only from the
constitution and laws of his state, but also from the
Constitution and laws of the United States, it follows that a
citizen, otherwise qualified under the constitution and laws of
his state may maintain an action at law in the circuit court of
the United States to recover from officers of the state damages
for their wrongful refusal of his vote at a congressional
election. (14) But where the constitution of a state defines the
qualifications for the exercise of the suffrage, and imposes the
conditions of registry as a voter, one to whom registry is
refused cannot, upon an allegation that the state's system of
registration is void because it violates the XV Amendment,
maintain a suit in equity in the circuit court of the United
States to compel the state officers to register him as a voter
under that system which he alleges to be void, for a decree in
his favour would accomplish no practical result; (14) and when
that citizen has brought an action at law in a court of the state
to recover from state officers damages for their alleged wrongful
refusal to register him as a voter, and when he has petitioned a
court of the state for a mandamus to compel the state officers to
register him as a voter, and the state court of last resort has
entered judgment against him on the grounds that if the
provisions of the state constitution are repugnant to the XV
Amendment they are void and registrars appointed thereunder had
no power to act, they could not be liable to him in damages for
their refusal to register him, and they cannot be compelled by
mandamus to register him; and the Supreme Court of the United
States cannot reverse the judgment of the state court upon writ
of error, for the state court has denied relief to the plaintiff
in error for reasons independent of the federal right upon which
he claimed. (14)
The right of serving on juries.
122. The right of serving as a juror being incident to
citizenship, a state cannot so regulate the selection of jurors
in its courts as to prevent citizens of African descent from
serving as jurors. (15)
Congressional regulation of federal elections.
123. Section 4 of Article I of the Constitution declares that,
"the times, places and manner of holding elections for senators
and representatives, shall be prescribed in each state by the
legislature thereof; but the Congress may at any time by law make
or alter such regulations, except as to the places of choosing
senators. Under this clause of the Constitution, Congress without
question provided for the election of its members by separate
districts, composed of contiguous territory, and required the
election in every district throughout the United States to be
held on the Tuesday after the first Monday of November in every
second year. In other respects, however, the exercise of power by
Congress on this subject has been contested in the courts. In the
several cases it has been held, that Congress, having a
supervisory control over the election of its members, and being
authorized to make regulations of its own, or to alter
regulations made by any state, can by statute impose duties on
state officers of election, punish the non-performance by such
officers of their duties, whether imposed by laws of the state or
by acts of Congress, and provide for the appointment of officers
of the United States to execute the regulations as made by
Congress or by the states. (16) It has also been held that
Congress can, for the protection of the voters at congressional
elections, punish acts of violence or intimidation done in
furtherance of a conspiracy to prevent a voter From exercising
the franchise at such elections; (17) and it can punish
interference with election officers when engaged in the discharge
of their official duties. (18)
The appointment and mode of appointment of electors belong
exclusively to the states. Congress is empowered to determine the
time of choosing electors and the day on which they shall give
their votes, which must be the same day throughout the United
States, but otherwise the power and jurisdiction of the state is
exclusive, with the exception of the provisions as tow the number
of electors and the ineligibility of certain persons, so framed
as to exclude federal influence. (19)
Immigrants and aliens.
124. The states cannot, (20), and the United States can, (21)
control and regulate immigration and the residence of aliens in
the United States. This power is an incident of sovereignty which
cannot be alienated in the exercise of the treaty-making power.
(22) Congress may, therefore, prohibit the immigration of any
class of persons; it may expel, and compel the deportation of,
resident aliens; and (23) it may forbid the transit of aliens
across the territory of the United States. (24) Congress may
authorize the courts to investigate and ascertain the facts on
which depends the right to land or to remain in the country; (25)
or it may entrust to administrative officers the final
determination of these facts; (26) and the decisions of such
officers will constitute due process of law, (27) and will be
binding on the courts. Congress may authorize a United States
commissioner to determine the facts upon which citizenship
depends. (28) While Congress may, as a means to give effect to
the legislation excluding or expelling aliens, authorize their
detention in temporary confinement, Congress nevertheless cannot,
unless provision be made for a judicial trial, declare an
unlawful residence in the country to be an infamous crime
punishable by imprisonment at hard labour. (29) An administrative
officer when executing a statute affecting the liberty of persons
may not disregard the fundamental requirement of due process of
law. There must, therefore, be adequate notice to, and a hearing
of, the person affected; (30) but defects in the form of the
proceeding will not affect its validity, or the finality of its
conclusion. (31) The existing legislation is applicable only to
persons owing allegiance to a foreign government, and, therefore,
does not affect citizens of Puerto Rico; (32) nor does it affect
a child born in the United States of parents who, while remaining
aliens, have a permanent domicile and residence in the United
States. (33)
Personal and property rights.
125. The states retain full control over the personal and
property rights of their citizens and of residents within their
territory, subject to the restraints imposed by the Constitution.
(34) The states retain the power of regulating the tenure of real
property within their respective limits, including the mode of
its acquisition and transfer, the rules of its descent and the
extent to which a testamentary disposition may be made of such
land by its owner, and a state may forbid the United States, by
reason of its not being a corporation created by the laws of that
state, to take by devise lands within the state. (35) The states
may legislate specially for the sale or investment of the estates
of infants and other persons not sui juris. (36) The shores of
navigable waters, and the soil under those waters, were not
granted by the Constitution to the United States, but were
reserved to the riparian states respectively, and new states have
the same rights, sovereignty, and jurisdiction over this subject
as the original states. (37) The United States having no
proprietary title to lands on the shore of a state, under
navigable waters and below high-water mark, can grant no valid
title thereto. (38) A state may, therefore, prohibit, or license
under regulation, the taking of oysters and fish in the navigable
waters within its limits. (39) The states may determine what
classes of persons shall come and remain within their territory,
(40) provided, of course, that they do not thereby impair the
rights of intercourse and traffic secured by the Constitutions to
citizens of other states, nor come into conflict with the
regulations made by the United States as to immigration and the
residence of aliens. (41) The Constitution makes no provision f
or the protection of the citizens of the several states in their
religious liberty, and imposes no restraints on the states in
that respect. Therefore, a judgment of a state court imposing a
fine upon a clergyman for violation of a municipal ordinance
regulating the place and manner of conducting funeral services,
is not subject to review in the Supreme Court of the United
States. (42)
The rights within a state of citizens of other states.
126. Section 2 of Article IV of the Constitution declares that
"the citizens of each state shall be entitled to all privileges
and immunities of citizens in the several states." As Miller, J.,
said, in the Slaughter House Cases, (43) the "sole purpose" of
this constitutional provision "was to declare to the several
states, that whatever those rights, as you grant or establish
them to your own citizens, or as you limit, or qualify, or impose
restrictions on their exercise, the same, neither more nor less,
shall be the measure of the rights of citizens of other states
within your jurisdiction." (44) Washington, J., said, in Corfield
v. Coryell, (45) the privileges and immunities in question are
those "which are fundamental, which belong of right to all
citizens of all free governments, and which have at all times
been enjoyed by citizens of the several states which compose this
Union, from the time of their becoming free, independent, and
sovereign," including "protection by the government, with the
right to acquire and possess property of every kind, and to
pursue and obtain happiness and safety, subject, nevertheless, to
such restraints as the government may prescribe for the general
good of the whole." In Paul v. Virginia, (46) Field, J., said,
"The privileges and immunities secured to citizens of each state
in the several states ... are those privileges and immunities
which are common to the citizens in the latter states under their
constitutions and laws by virtue of their being citizens. Special
privileges enjoyed by citizens in their own states are not
secured in other states by this provision. It was not intended by
the provision to give to the laws of one state any operation in
other states. They can have no such operation, except by the
permission, express or implied, of those states. The special
privileges which they confer must, therefore, be enjoyed at home,
unless the assent of other states to their enjoyment therein be
given." It is clear that this provision guarantees the privileges
and immunities of citizens of other states, and has no reference
to action by a state in respect to its own citizens. (47) "The
Constitution of the United States does not make the privileges
and immunities enjoyed by the citizens of one state under the
constitution and laws of that state the measure of the privileges
and immunities to be enjoyed, as of right, by a citizen of
another state under its constitution and laws. (48) Nor does this
constitutional provision vest the citizens of one with any
interest in the common property of citizens of another state.
Therefore, a statute of a state by which other than its own
citizens are prohibited from planting or taking oysters from the
soil which is covered by the tide-waters of that state, is not a
violation of any privilege or immunity of citizens, for, subject
to the paramount right of navigation, the regulation of which in
relation to foreign and interstate commerce has been granted to
Congress by the Constitution, each state owns the soil of all
tide-waters within its, jurisdiction, and may appropriate them to
be used by its citizens in common for cultivating and taking
fish, etc., if navigation be not thereby obstructed. (49) Nor
does this constitutional provision require a state to confer upon
citizens of other states peculiar privileges granted to its own
citizens; thus, the privilege of community of acquets or gains as
between married persons in Louisiana, as regards lands in
Louisiana acquired by a citizen of Mississippi who, while living
in that state, has married a woman born in Louisiana, cannot be
claimed as a constitutional right, for the wife by her marriage
became a citizen of Mississippi. (50) On the same principle, a
state may enact a statute of limitations, discriminating, as
regards suits against non-resident defendants, against creditors,
if citizens of other states, and in favour of creditors who are
citizens of the state. (51) On the other hand, a state cannot
without contravening this constitutional provision, so
discriminate by taxation against either the natural products of,
or the goods manufactured in, another state, as to hinder the
citizens of that other state in their exercise of the rights of
freely transporting and selling their goods manufactured or
unmanufactured. (52) Nor can a state by taxation, or otherwise,
restrict the exercise by the citizens of other states of their
right of free transit from place to place within the United
States, in order to approach the seat of government of the United
States and the federal offices in the various states. (53) Nor
can a state by statute provide that in the distribution of the
assets of insolvent debtors local creditors shall be given
priority over creditors who are citizens of other states. (54)
Foreign corporations.
127. Foreign corporations are, in the states of the United
States, corporations created by any other state, or by a foreign
government. A joint stock partnership organized under the laws of
a foreign country, with a statutory recognition of the
distinctive entity of the association and with powers of transfer
of shares and succession of members, and the right to sue and be
sued as an aggregation, is regarded in the United States as a
foreign corporation. (55) A corporation is not, in its corporate
capacity, a citizen, within the meaning of the Constitution; but
for jurisdictional purposes there is a conclusive presumption of
law that it is composed of citizens of the state which created it
and it may sue and be sued in its corporate name. (57) A foreign
corporation is not a citizen within the meaning of Section 2 of
Article IV of the Constitution, which declares that "the citizens
of each state shall be entitled to all privileges and immunities
of citizens in the several states." (58) While corporations are
persons within the meaning of the XIV Amendment, (59) they are
not entitled to such equal protection of the laws as to have the
right to do business within a state, other than that of their
incorporation, without being hampered by such discriminating
conditions as the state may choose to impose. (60) A corporation
exists only in contemplation of law and by force of law, and it
can have no legal existence beyond the bounds of the sovereignty
creating it, unless it be, by comity, permitted to exist within
the bounds of some other sovereignty, (61) save only, that a
state may not exclude from its limits a corporation which is in
the employ of the federal government(62) or which is engaged in
interstate or foreign commerce. (63) Of course, if there be no
prohibitory legislation, it is not competent for an individual
citizen, not personally interested in the corporation, to object
to the doing of business within a state by a foreign corporation.
(64) Unless the local law prohibit, a foreign corporation, if its
charter so authorizes, may sue and be sued in the courts of a
state, (65) make contracts, (66) acquire and hold real estate,
(67) buy and sell bills of exchange, (68) and negotiate and issue
policies of life and fire insurance. (69) Corporations, by doing
business within the bounds of a sovereignty other than that which
has created them, do not become corporations of that other
sovereignty, nor lose privileges which are incident to their
citizenship in the sovereignty which created them. Therefore, a
railway corporation of Maryland does not, by becoming lessee of a
railway in Virginia, forfeit its right to remove into the Circuit
Court of the United States a suit brought against it in the
courts of Virginia by a citizen of that state. (70) A state may
discriminate in favour of its own corporations and against
foreign corporations; (71) it may tax foreign corporations; (72)
it may arbitrarily refuse to foreign corporations permission to
do business within its territory, or it may give its consent on
any conditions which "are not repugnant to the Constitution or
laws of the United States, nor inconsistent with those rules of
public law which secure the jurisdiction and authority of each
state from encroachment by all orders, or that principle of
natural justice which forbids condemnation without opportunity
for defense; (73) it may impose on a foreign corporation a
condition that service of process on the resident agent
representative of the corporation on reasonable notice shall be
considered a service upon the corporation, (74) and it may
prohibit the transaction of the business of insurance within its
bounds by a foreign corporation, or it may impose in its
discretion conditions on the performance of such business, for
contracts of insurance being covenants for indemnity and not
articles of commerce, the negotiation and issue of policies of
insurance are not trans actions of foreign or interstate
commerce. (75) But a state cannot, by any alteration of the
conditions imposed upon foreign corporations doing business
within the state, impair the obligation of contracts lawfully
made. (76) So also a state cannot rightfully impose as a
condition the non-exercise by a corporation of its right of
removing to the courts of the United States actions brought
against it in the courts of the state. (77) If, however, a state
prohibit a foreign corporation from doing business within its
bounds because the corporation will not forego the exercise of
its right of removal of actions, the corporation cannot be
protected by an injunction issued by the courts of the United
States; (78) but a state statute, requiring foreign corporations
as a condition of doing business in a state to stipulate that
they will not remove into the courts of the United States causes
which under the laws of the United States they would be entitled
to remove, is void; (79) and a servant of the corporation(80)
cannot be convicted for doing business for a corporation which
had not complied with the statute. (81) A substantial compliance
by a foreign corporation with the condition on which it is
permitted to do business within the bounds of another sovereignty
is sufficient; thus, the law of Colorado requiring the filing of
a certificate "designating the principal place where the business
of such corporation shall be carried on in this state, and an
authorized agent or agents, residing at its principle place of
business, upon whom process may be served," is sufficiently
complied with by a certificate naming the town in which the
business is to be carried on and stating "that the general
manager of said corporation residing at the said principal place
of business, is the agent upon whom process may be served," but
not giving the name of the general manager. (82) A foreign
corporation does not, by making a single contract for the sale of
machinery, come within the provisions of a statute forbidding
foreign corporations to "do any business" within the state, (83)
but it does come within a similar statute when it loans money
upon a note and mortgage solicited by its agent and executed
within the state, although the instruments especially stipulate
that they are made with reference to and under the laws of the
home state of the corporation. (84) Moreover, a foreign insurance
company does not cease to do business within the state by
withdrawing its agent and refusing new risks if its old policies
continue in force and premiums are paid thereon by the policy-
holders. (85)
Every one who deals with a foreign corporation impliedly
subjects himself to the laws of the foreign government which
chartered the corporation, so far as those laws affect the powers
and obligations of the corporation or the validity, enforcement,
or discharge of its contracts; thus, for instance, a holder in
the United States of bonds, issued by a railway corporation of
Canada, but negotiated, and stipulated to be paid, in the United
States, is bound by the terms of a statutory scheme of
arrangement enacted by the Parliament of Canada subsequently to
the issue and sale of the bonds. (86) On the same principle, a
holder in Louisiana of a policy of life insurance issued in that
state by a Missouri corporation is chargeable with notice of the
insurance laws of Missouri substituting the insurance
commissioner of that state as the representative of insolvent
insurance companies. (87)
The I Amendment.
128. The I Amendment declares that "Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances." The clause
as to religion cannot "be invoked as a protection against
legislation for the punishment of acts inimical to the peace,
good order, and morals of society;" (88) nor does the clause
prevent Congress from declaring the marriage, in a territory or
other place over which the United States have exclusive
jurisdiction, of any person having a husband or wife living and
undivorced, etc., to be bigamy; nor can one convicted of bigamy
successfully defend upon his allegation that he religiously
believed in plural marriages; (89) nor does this clause prohibit
a contract of the commissioners of the District of Columbia with
an incorporated charitable association for the application of the
moneys of the United States in the construction of hospital
buildings in which paupers are to be housed and to be cared for
by devotees of the Roman Catholic faith; (90) nor does the clause
as to the freedom of speech and of the press prohibit
congressional legislation forbidding the transportation of
lottery tickets and advertisements by the mails; (91) nor does
the Amendment forbid congressional prohibition of the immigration
of anarchists. (92)
The XIII Amendment.
129. The XIII Amendment declares that "neither slavery nor
involuntary servitude, except as a punishment for crime whereof
the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction," and
that "Congress shall have power to enforce this Article by
appropriate legislation." This provision does not validate an act
of Congress which declares it to be a crime to conspire to
deprive others of the equal protection of the laws. (93) Nor does
the XIII Amendment prohibit the creation of monopolies by a
state, such as the exclusive right of providing a place for the
slaughtering of cattle. (94) Nor does it prohibit state
legislation requiring railway companies to furnish separate
accommodations for white and colored passengers. (95) Nor does it
prohibit congressional legislation providing for the punishment
of sailors who desert a ship after having contracted to serve
upon it. (96) Nor does it invalidate a promissory note made
before the adoption of the Amendment, the consideration for which
note was the price of a slave, slavery having been lawful by the
lex loci contractus at the time the note was given, (97) and this
rule holds even where the vendor made an express warranty,
warranting the chattel to be a slave for life and the warrantor's
title to him to be clear and perfect. (98) And, on the same
principle, the estate of a former slave-owner may recover from
one who used those slaves upon his own plantation a fair rental
for their use, estimated to the time when they became free. (99)
The XIV Amendment.
130. The XIV Amendment declares that "all persons born or
naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state
wherein they reside. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States; nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws."
The purposes of the Amendment are to define citizenship of the
United States and of the states, to confer citizenship upon
negroes, to secure against hostile legislation of the states
those privileges and immunities which are common to citizens of
the United States, (100) and to protect all natural persons
within the territorial jurisdiction of the United States, without
regard to difference of race, color, nationality, or citizenship.
(101) The Amendment does not confer upon women the right of
suffrage, (102) nor the right to practice law. (103) The
provision that "no state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States" protects, it seems, only those rights which are
secured against state encroachment by other clauses of the
Constitution: it does not extend to state legislation those
restrictions which the first eight Amendments impose upon
congressional action. (104) Within the meaning of the
Constitution, due process of law is secured when the laws operate
on all alike and no one is subjected to an arbitrary exercise of
the powers of government. The provision does not control mere
forms of procedure, while, on the other hand, the bare observance
of legal forms is insufficient when the proceedings are
manifestly fraudulent. (105) The prohibition of state legislation
which denies to any person the equal protection of the laws,
prevents the enactment of laws which discriminate unjustly
against any citizen, although special legislation, as such, is
not prohibited. (106) And while corporations are persons within
the meaning of the Amendment, (107) yet foreign corporations are
not entitled to such equal protection of the laws as to have the
right to do business within a state without being hampered by
such discriminating conditions as the state may choose to impose.
(108)
The equal protection of the laws.
131. The provision of the XIV Amendment that no state shall "deny
to any person within its jurisdiction the equal protection of the
laws" requires that equal security be given to all under like
Circumstances in the enjoyment of their personal and civil
rights. The officers of a municipality may not, in the
administration of an ordinance regulating the carrying on of a
lawful business within the corporate limits, make arbitrary and
unjust discriminations, founded on differences of race, between
persons otherwise similarly placed. (109) A state may not, to the
prejudice of a colored man, who is put upon his trial for an
offense against its laws, refuse to other colored men the
privilege of serving upon the jury, nor compel such prisoner to
submit to a trial by a jury from which citizens of African
descent are by reason of their race excluded; (110) but a
prisoner cannot insist upon having a jury composed, either in
part or in whole, of his own race, for all that he can rightfully
demand is a jury from which men of his race are not excluded
because of their color. (111) A state may not require railroad
companies to transport passengers or freight at unreasonably low
rates, for in so far as such corporations are denied the right,
while others are permitted, to receive reasonable profits upon
their invested capital, those corporations are deprived of the
equal protection of the laws. (112) So also a statute is
unconstitutional which provides, as a penalty upon railroad
companies for failure to pay certain debts, that parties
successfully suing the companies to recover such debts shall be
entitled to attorney's fees, but which gives to the companies no
like or corresponding benefit. (113) So also a statute is
unconstitutional which, although general in its terms, is
designed to limit the charges of a single stockyards company and
which does not limit the charges which may be made by similar
companies doing like business. (114) And a statute is
unconstitutional which prohibits the recovery of the price of
articles sold by a trust or combination formed in restraint of
trade, but which does not apply to agricultural products or live
stock in the hands of the producer or raiser. (115) A corporation
is a person within the meaning of the Amendment. (116)
But a law is presumptively constitutional whenever it
operates alike on all persons and property similarly situated,
and while a state may not make a classification of the objects of
legislation an excuse for an unjust discrimination, or the
oppression or spoliation of a particular class, yet special
legislation, as such, is not prohibited by the Amendment. (117) A
state may grant a monopoly of the slaughtering of cattle. (118)
It may require that prior to the admission to its territory of a
corporation of another state, such conditions as it may designate
shall be observed; (119) it may prohibit a white and a negro from
living together in adultery or fornication under more severe
penalties than those to which the parties would be subjected were
they of the same race and color; (120) it may classify railroads
for the purpose of regulating fares, (121) and may establish
reasonable rates of fare; (122) it may reasonably limit the rates
of water supply companies; (123) it may fix the tolls which may
be charged by turnpike companies, (124) and the rates which may
be charged by grain elevator companies, (125) and in neither case
is it necessary that the regulations so imposed be uniform
throughout the state; it may make railroad corporations(126) or
all corporations(127) liable for injuries to employees caused by
the negligence of fellow employees; it may prohibit the sale of
oleo margarine within its limits; (128) it may prohibit the
manufacture and sale of oleomargarine which contains coloring
matter, although permitting the use of coloring matter in butter;
(129) it may authorize municipalities to improve streets and to
assess the owners of adjoining lots for the benefits accruing to
them from the improvements; (130) and it may provide that the
proposed improvements shall not be made if a majority of the
resident holders of adjoining property protest, although the
privilege of interference is not given to non-residents, where
there is no discrimination in the assessment for the
improvements; (131) it may impose upon railroad companies
liability to punitive damages for injuries caused by their
omission to fence their tracks as required by law; (132) it may
impose upon railway companies alone a penalty for allowing
certain weeds to go to seed upon their right of way; (133) it may
tax corporate securities at their face value, (134) and may
classify property (135) and occupations(136) for the purpose of
taxation, for the Amendment was not intended to compel the states
to adopt an iron rule of equal taxation; it may tax all companies
exercising the franchises of corporations within its limits on
the privilege of exercising those franchises; (137) it may
require the railroad companies of the state to pay the expenses
of the state railroad commission, (138) and the electric
companies to pay the salaries of the subway commissioners; (139)
it may provide that licenses to sell liquor shall not be granted
save on the compliance by the applicant with certain conditions,
which conditions may be more burdensome than those imposed upon
persons engaged in other lines of business; (140) it may allow a
county or smaller district to prohibit the sale of liquor within
its limits, but, discriminating in favour of prohibition, forbid
the sale in the smaller district when it is prohibited by the
county containing that district; (141) and it may allow a
municipality to prohibit the sale or gift of liquors except by
druggists, manufacturers, persons who give away liquors in their
private dwellings, and railway corporations dispensing liquors in
their cars under state license; (142) it may apportion the
movable property of railroads among its counties for assessment
and taxation without so apportioning property owned by other
corporations or by individuals; (143) it may require all railroad
companies to remove grade crossings under certain conditions;
(144) it may require grain elevator companies to insure grain
stored by them; (145) it may provide that persons who have been
before convicted of crime shall suffer severer punishment for
subsequent offenses than for a first offense against the law;
(146) it may provide that lands on the banks of a river may be
taken for levees without compensation, the provision applying
alike to all owners of riparian lands; (147) it may require that
white and colored passengers on railroads within the state be
transported in separate cars; (148) it may provide that the costs
in actions improperly instituted shall be borne by the
prosecutor; (149) it may make railroad companies liable in
damages for all fires along their routes caused by their
locomotives (150) and provide, as a police regulation, that in an
action to recover such damages the plaintiff, if successful,
shall be allowed a reasonable attorney's fee; (151) it may
provide that in successful actions against life and health
insurance companies the plaintiff shall be allowed an attorney's
fee, although a similar condition is not imposed on other
insurance companies or on mutual relief associations; (152) it
may allow to a successful plaintiff an attorney's fee in a suit
on a policy covering real estate where the property has been
totally destroyed, and exclude the right to such fee in suits to
enforce policies on other classes of property, or where there has
not been a total destruction of the property covered by the
insurance; (153) it may provide that under certain conditions a
change of venue shall be allowed to a party suing or sued by a
corporation having more than fifty stockholders; (154) it may
provide that any person who drives a herd over a public highway,
where such highway is constructed on a hillside, shall be liable
for all damages caused by such animals, without imposing this
absolute liability on those who move animals otherwise than in
herds; (155) it may regulate the heating of steam passenger cars,
although at the same time it declares that the regulations shall
not apply to railroads less than fifty miles in length; (156) it
may limit the hours of labour in mines, (157) and on public
contracts; (158) it may commit to administrative officers the
power to determine the right of citizens to serve as jurors, and
it does not deny to any person accused of crime the equal
protection of the laws unless discrimination against certain
classes of citizens is shown in the actual administration of the
statute; (159) it may provide that in suits on policies of fire
insurance the defendant shall not be permitted to deny that the
value of the property destroyed was that set forth in the policy
of insurance, although no such provision is made concerning
insurance against the destruction of property from causes other
than fire; (160) it may give to residents priority over non-
resident corporations in the distribution of the assets of
insolvent debtors, for the prohibition relates only to the denial
by the state of equal protection to persons "within its
jurisdiction;" (161) it may provide that if on the day of
discharge of any railroad employee the wages then due to him be
not paid the railroad shall be subject to a penalty; (162) it may
provide that in a trial for murder the court may, on the motion
of either the state or the prisoner, order a struck jury, and
that in such case the accused shall be allowed only five
peremptory challenges, while in ordinary trials for murder the
accused shall be allowed twenty peremptory challenges; (163) it
may provide for the indictment of prisoners by information and
their trial by a jury composed of eight instead of twelve jurors;
(164) it may declare a presumption that policy slips are held for
an unlawful purpose when in the possession of persons other than
public officers; (165) it may authorize municipalities to annex
adjoining tracts of land used for other than agricultural
purposes; (166) it may prohibit all labour on Sunday except works
of necessity and charity, providing, as a matter of law, that the
keeping of a barber shop on Sunday shall not be deemed to be a
work of necessity, but leaving the character of other kinds of
labour to be determined as questions of fact; (167) it may impose
a license tax upon persons and corporations carrying on the
business of refining sugar and molasses, while exempting from
such taxation planters who refine their own sugar and molasses;
(168) it may tax persons who are engaged in hiring laborers to be
employed beyond the limits of the state, although no such tax is
imposed upon the business of hiring persons to labour within the
state; (169) it may provide that mis-statements, other than
fraudulent, in answer to interrogatories in applications for
policies of life insurance shall not invalidate policies issued
on the strength of those answers; (170) it may establish two
district criminal courts and allow to the state an appeal from
one of these courts although not allowing to it an appeal from
the other; (171) it may provide that the real estate of
corporations shall be assessed by a procedure different from that
used in determining the value of real estate owned by
individuals; (172) it may require the assessment of railroad
property which escaped taxation in preceding years, without
providing for the assessment of other property which escaped
taxation in the same period; (173) it may prohibit railway
companies from charging more for shorter than for longer hauls,
except by permission of the railroad commission; (174) it may
prohibit the making of options for the purchase or sale of
commodities; (175) it may prohibit contracts for the sale of
corporate stock on margin; (176) and it may provide for the
inspection of all mines in which more than five men are employed,
and, after stipulating the fees to be charged by the inspectors,
permit them to determine the number of inspections per year
required by each mine. (177) So also a municipality may forbid
the use of steam power by railways on designated streets without
forbidding its, use by companies which traverse other streets of
the City; (178) it may forbid washing and ironing in public
laundries within definite limits between prescribed hours; (179)
it may prohibit the keeping of a private market within six
squares of a public market, (180) and it may forbid the
maintenance of a cow stable within municipal limits without the
permission of the municipal assembly. (181) So also a saloon
keeper may be denied a renewal of his license upon the ground
that he is not a suitable person to conduct the business; (182) a
prisoner may be tried and sentenced by a judge de facto of a
court de jure; (183) a prisoner convicted of conspiracy to
defraud may be subjected to a heavier sentence than is imposed on
a co-conspirator; (184) judicial procedure may be regulated,
provided the same course of procedure be applied to all persons
under similar conditions; (185) a board of education which has
not sufficient funds to maintain two high schools may exclude
negroes from a high school which is maintained for the benefit of
white students; (186) and a mayor may be given authority to grant
or refuse permission to move buildings along the streets of a
city. (187) The power of enforcement by appropriate legislation,
vested by the Amendment in Congress, does not authorize
congressional legislation with regard to individuals, for the
Amendment restrains state and not individual action; it has,
therefore, been held that Section 5519, Revised Statutes of the
United States, declaring it to be a crime punishable by fine and
imprisonment for any two or more persons to conspire to deprive
any person of the equal protection of the law is
unconstitutional. (188) It has also been held that the Civil
Rights legislation of Congress(189) declaring that all persons
within the jurisdiction of the United States shall be entitled to
the full and equal enjoyment of inns, transportation facilities,
etc., and subjecting to fine and imprisonment, and also to a
liability to damages in an action at law, any person violating
the provisions of the statute, is unauthorized by the Amendment,
the ground of decision being that the Amendment is prohibitory of
state legislation and action, and that, therefore, it is not in
the power of Congress to directly legislate for the protection of
individual rights against wrong doing by individuals. (190)
The police power.
132. The police power is that function of government, by the
exercise of which, all persons, who are subject to the
sovereignty of the government exercising the power, are, for ends
of public policy, restrained in their use, or enjoyment, of some
right of person or of property. The police power may attain its
end by absolutely prohibiting the exercise of a particular right,
or by so regulating the exercise of that right as to permit its
use under conditions, and, if the power exists, the extent to
which it may be exercised in any case is limited only by the will
of the government, or the department thereof, in which the power
may be vested, unless a restraint be imposed by organic law. It
is clear that the United States cannot exercise within territory
of a state any portion of the state's police power, but it is
equally clear that the United States can exercise therein
whatever of the police power is applicable to the protection or
regulation of the rights of person or of property which are
granted by the Constitution of the United States. It may be said
upon one side, that the autonomy of the states is nothing more
than a name, if the police power is not to be exclusively
exercised by them, and that the constitutional grant to the
United States of any power which in its exercise may affect the
internal concerns of a state must be understood to have been made
on the implied condition that its exercise is to be subject to
the police power of the state. It may be said, on the other side,
that, as the power of police involves a power not only to
control, but also to forbid, the powers granted by the
Constitution to the United States would be nugatory, if the
states might veto, under the pretense of regulating. It may be
repeated here as it has been said in another connection, (191)
that while the states did not, by the adoption of the
Constitution, surrender their local powers of government, yet,
nevertheless, the territorial limits of each state's
jurisdiction, the grant to the United States of powers
conflicting with state sovereignty, and a due regard to the right
of citizens of other states, must so limit each state's otherwise
unlimited police powers, that those powers shall not be so
exercised as to interfere with the full exercise of the powers
granted to the United States.
Therefore, persons or property brought within the territory
of a state in the exercises of any federal right are exempt from
obstructive state control until the federal power shall have
ceased to operate, and the persons, or property, on which it
acted shall have merged in the mass of persons, or property,
within the territory of the state.
(1) 116 Wall. 72.
(2) U.S. v. Wong Kim Ark, 169 U.S. 649.
(3) The Slaughter House Cases, 16 Wall. 73; U.S. v. Cruikshank,
92 U.S. 548; U.S. v. Wong Kim Ark, 169 id. 649, cf. Elk v.
Wilkins, 112 id. 94. Congress mav, by statute or treaty,
provide for the collective naturalization of the citizens of
a territory upon its admission to statehood: Boyd v.
Nebraska, 143 U.S. 135; Contren v. U.S. , 179 id. 191.
(4) Chirac v. Chirac, 2 Wheat. 2169; Dred Scott v. Sandford, 19
How. 405.
(5) Collet v. Collet, 2 Dall. 294.
(6) 119 How. 393.
(7) 1 Stroder v. Graham, 10 How. 93; Holmes v. Jenuison, 14 Pet.
540; Groves v. Slaughter, 15 id. 449; Prigg v. Pennsylvania,
16 id. 539,
(8) Pope v. Williams, 193 TJ. S. 621.
(9) Wiley v. Sinkler, 179 U.S. 58. See also Mason v. Missouri,
ibid. 328; Swafford v. Templeton, 185 id. 487.
(10) Minor v. Happersett, 21 Wall. 162.
(11) Ex parte Yarbrough, 110 17. S. 665. See Giles v. Harris, 189
id. 475; Giles v. Teasley, 193 id. 146.
(12) U.S. v. Reese, 92 U.S. 214.
(13) James v. Bowman, 190 U. B. 127.
(14) U.S. v. Cruikshank, 92 U.S. 542.
(14)a Wiley v. Sinkler, 179 U.S. 58; Swafford v. Templeton, 185
id. 487.
(14)b Giles v. Harris, 189 U.S. 475; Harlan, Brewer, and Brown,
JJ., dissented.
(14)c Giles v. Teasley, 19 3 U.S. 146.
(15) XV Amendment; Stratuder v. West Virginia, 100 U.S. 303;
Virginia v. Rives, ibid. 313; Ex parte Virginia, ibid. 339;
Neal v. Delaware, 103 id 370; Gibson v. Mississippi, 162 id.
565; Carter v. Texas, 177 id. 442; Rogers v. Alabama, 192 @.
226.
(16) Ex parte Siebold, 100 U.S. 371; Ex parte Clarke, ibid. 399;
In re Coy, L27 id. 731.
(17) Ex parte Yarbrough, 110 U.S. 651.
(18) Connors v. U. B., 158 U.S. 408.
(19) McPherwn v. Blinker, 146 U.S. 1; in row Green, 134 id. 377.
(20) Chy Lung v. Freeman, 92 U.S. 273, 28 0.
(21) The Chinese Exclusion Case, 130 U.S. -Z81.
(22) The Chinese Exclusion Case, supra.
(23) Foug Yue Ting v. U.S. , 149 U.S. 698.
(24) @ Fok Yung Yo v. U.S. , 185 U.S. 296.
(25) U.S. v. Jung Ah Luing, 124: U.S. 621.
(26) U.S. v. Sing Tuck, 194 U.S. 161; Li Sing v. U. 6., 180 id.
486.
(27) Nishimura Ekiu v. U.S. , 142 U.S. 651, 660.
(28) U.S. v. Wong Kim Ark, lC39 U.S. 649; Chin Bak Kan v. U.S.,
186 id. 193.
(29) Wong Wing v. U.S. , 163 U.S. 228.
(30) The Japanese Immigrant Case, 189 U.S. 86.
(31) Pong Yue Ting, 149 U. S. 698, 729; Chin Bak Kan v. U.S. ,
186 id. 193.
(32) Gonzales v. Williams, 192 U.S. 1.
(33) U.S. v. Wong Kim Ark, 169 U.S. 649.
(34) The first eight Amendments bind only the federal government:
Spies v. Illinois, 123 U. S. 131, 166; Eilenbecker v.
Plymouth County, 134 id. 31; In re Kemmler, 136 id. 436;
McElvaine v. Brush, 142 id. 155; Thorington v. Montgomery,
147 id. 490; Moore v. Missouri, 159 id. 673; Brown v. New
Jersey, 175 id. 172; C. C. D. Co. v. Ohio, 183 id. 238; Ohio
v. Dollison, 194 id. 445. The provision of the XIV Amendment
that "no state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States" protects, it seems, only those rights which
are secured against state encroachment by other clauses of
the Constitution. See In re Kemmler, 136 U. S. 436, 448;
Giozza v. Tiernan, 148 id. 657, 661; Duncan v. Missouri, 152
id. 377, 382; Maxwell v. Dow, 176 id. 581; Slaughter House
Cases, 16 Wall. 36, 79; Bartemeyer v. Iowa, 18 id. 129;
Presser v. Illinois, 116 U.S. 252; Mugler v. Kansas, 123
id. 623; In re Lockwood, 154 id. 116; Gray v. Connecticut,
159 id. 74; Plessy v. Ferguson, 163 id. 537; Holden v.
Hardy, 169 id. 366; Cumm ing v. Board of Education, 175 id.
528; W. P. S. C. v. Caspefson, 193 id. 189; Ohio v.
Dollison, 194 id. 445. The Amendment does not extend to
state legislation the restrictions which the first eight
Amendments impose upon congressional action: Maxwell v. Dow,
176 U.S. 581, 597. Harlan, J., dissented.
(35) U.S. v. Fox, 94 U.S. 315.
(36) Hoyt v. Sprague, 103 U.S. 613.
(37) Pollard v. Hagan, 3 How. 212; Weber v. Harbour
Commissioners, 18 Wall. 57; Shively v. Bowlby, 152 U.S. 1;
M. T. Co. v. Mobile, 187 id. 479.
(38) Pollard v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 id. 471;
Doe v. Beebe, 13 id. 25; U.S. v. M. R. Co., 189 U.S. 391.
(39) Smith v. Maryland, 18 How. 71; McCready v. Virginia, 94 U.
S. 391.
(40) Holmes v. Jennison, 14 Pet. 540; Groves v. Slaughter, 15 id.
449; Prigg v. Pennsylvania, 16 id. 539.
(41) Supra, See. 124.
(42) Permoli v. First Municipality, 3 How. 589.
(43) 16 Wall. 77.
(44) See, on the same line, KimTnigh v. Ball, 129 U.S. 217, 222.
Compare T. I. Co. v. Connecticut, 185 id. 364.
(45) 4 Wash. C. C. 371.
(46) 8 W&U. 180.
(47) Bradwell v. State, 16 Wall. 130.
(48) Harlan, J., in McKane v. Durston, 153 U.S. 684, 687.
(49) McCready v. Virginia, 94 U.S.391. See also Geer v.
Connecticut, 161 id. 519.
(50) Conner v. Elliott, 18 How. 593; Curtis, J., said, "We do not
deem it needful to attempt to define the word 'privileges'
in the clause of the Constitution. It is safer and more in
accordance with the duty of a judicial tribunal, to leave
its meaning to be determined in each case, upon a view of
the particular rights asserted and denied therein, and
especially is this true, when we are dealing with so broad a
provision, involving matters not only of great delicacy and
importance, but which are of such a character that any
merely abstract definition could scarcely be correct; and a
failure to make it so would certainly produce mischief."In
McCready v. Virginia, 94 U.S. 395, Waite, C. J., after
referring to the view thus expressed by Curtis, J., added,
"this clearly is the safer course to pursue." These dicta,
of course, mean only that in the decision of a cause, the
court ought to confiiae themselves to the case at bar and
ought not so to generalize as to prejudice cases that have
not yet arisen for determination, but they do not mean that
the court, in order to arrive at a decision, should reason
empirically, and should avoid a clear statement of the
general principles whose application must necessarily
determine the particular ease. If they did mean that, they
would establish a "rule" which is not "salutary," and they
would lay down a "course" which is not the "safer" one to
pursue.
(51) Chemung Canal Bank v. Lowery, 93 U. S. 72. Strong, J.,
dissented.
(52) Ward v. Maryland, 12 Wall. 418; Welton v. Missouri, 91 U.S.
275; Guy v. Baltimore, 100 id. 434; Webber v. Virginia, 103
id. 344; Walling v. Michigan, 116 id. 446; Robbins v. Shelby
County, 120 id. 489; Corson v. Maryland, ibid. 502; Asher v.
Texas, 128 id. 129. But see Hinson v. Lott, 8 Wall. 148;
Downham v. Alexandria Council, 10 id. 173; Machine Co. v.
Gage, 100 U.S. 676; Tiernan v. Rinker, 101 id.123; Ficklen
v. Shelby County, 145 id. 1; Emert v. Missouri, 156 id. 296;
Rash v. Farley, 159 id. 263.
(53) Crandall v. Nevada, 6 Wall. 35.
(54) Blake v. McClung, 172 U. S. 239, 176 id. 59; Stilly v.
American Nat. Bank, 178 id. 289.
(55) L. f. Co. v. Massachusetts, 10 Wall. 566.
(56) The Bank of U.S. v. D eveaux, 5 Cr. 61; Paul v. Virginia, 8
Wall. 168; Blake v. McClung, 172 U.S. 239; O. 1. Co. v.
Daggs, ibid. 557.
(57) L.,C.&C.R. v. Letson, 2 How. 497; Marshall v. B. & 0. R., 16
id. 314; C. D. Co. v. Shepherd, 20 id. 227; O. & M. R. v.
Wheeler, 1 Bl. 286; Express Co. v. Kountze Bros., 8 Wall.
342; v. Co. v. Whitton, 13 id. 270; St. L.& S.F. Ry. v.
James, 161 TT. S. 545; St. J. & G. 1. R. v. Steele, 167 id.
659; Blake v. McClung, 172 id. @39; L., N. A. & C. Ry. v. L.
T. Co., 174 id. 552; S. Ry. v. Allison, 190 id. 326.
(58) Paul v. Virginia, 8 Wall. 168; P. M. Co. v. Pennsylvania,
125 U. S. 181; N. & W. R. v. Pennsylvania, 136 id. 114;
Blake v. McClung, 172 id. 239; Sully v. American Nat. Bank,
178 id. 289.
(59) Santa Clara County v. S. P. R., 118 U.S. 394; C., C. & A.
R. v. Gibbes, 142 id. 386; C. & L. T. Co. v. Sandford, 164
id. 578; G., C. & S. F. Ry. v. Ellis, 165 id. 150; Smyth v.
Ames, 169 id. 466; L. S. & M. S. Ry. v. Smith, 173 id. 684;
P. M. Co. v. Pennsylvania, 125 id. 181; M. P. Ry. v. Mackey,
127 id. 205; M. & S. L. Ry. v. Herrick, ibid. 210; @NI. & S.
L. Rv. v. Beckwith, 129 id. 26, 28.
(60) P. F. Assn. v. New York, 119 U.S. 110; P. M. Co. v.
Pennsylvania, 125 id. 181; 0. T. Co. v. Daggs, 172 id. 557;
W. P. O. Co. v. Texas, 177 id. 28; Sully v. American Nat.
Bank, 178 id. 289; ef. N. Y., L. E. & W. R. v. Pennsylvania,
153 id. 628; Nutting v. Massachusetts, 183 id. 553.
(61) Bank of Augusta v. Earle, 13 Pet. 519; Runyan v. Coster, 14
id. 122; O. & M. R. v. Wheeler, 1 Bl. 286; P. M. Co. v.
Pennsylvania, 125 U.S. 181; H. S. M. Co. v. New York, 143
id. 305; Ashley v. R@, 153 id. 436; Hooper v. California,
155 id. 648; New York v. Roberts, 171 id. 658; N. Y. L. I.
Co. v. Cravens, 178 id. 389; Nutting v. Massachusetts, 183
id. 553. See also D. C. & I. Co. v. Barton, ibid. 23; D. G.
Co. v. U.S. G. Co., 187 id. 611.
(62) P. M. Co. v. Pennsylvania, 125 U.S. 181; H. S. M. Co. v.
New York, 143 id. 305.
(63) P. M. Co. v. Pennsylvania, 125 U. S. ISI; McCall v.
California, 136 id. 104; N. & W. R. v. Pennsvlvania, ibid.
114; Crutcher v. Kentucky, 141 id. 47; H. S. NI. Co. v. Ney
York, 143 id. 305; Ashley v. Ryan, 153 id. 436; P. T. C. Co.
v. Adams, 155 id. 68S; cf. California v. C. P. R., 127 id.
1; Maine v. G. T. Ry. 142 id. 217.
(64) Waite, C. J., said in P. T. Co. v. W. U. T. Co., 96 U.S. 1,
13, "No citizen of a state can enjoin a foreign corporation
from pursuing its business. Until the state aets in its
sovereign capacity, individual citizens can not complain.
The state must determine for itself when the public good
requires that its implied assent to the admission shall be
withdrawn."
(65) Bank of Augusta v. Earle, 13 Pet. 519, 587; Cowles v. Mercer
County, 7 Wall. 118.
(66) Bank of Augusta u. Earle, 13 Pet. 519, 591; Runyan v.
Coster, 14 id. 122,129.
(67) Runyan v. Coster, 14 Pc-t. 122; S. F. et A. des E. U. v.
Milliken, 135 U.S. 304.
(68) Bank of Augusta v. Earte, 13 Pet. 519.
(69) Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 id. 410;
L. 1. Co. v. Massachnsetts, ibid. 566; P. F. A. v. New York,
119 U.S. 110.
(70) Railroad Co. v. Koontz, 104 U.S. 5. See also St. L. & S. F.
Ry. v. James, 161 id. 545; L., N. A. & C. Ry. v. L. T. Co.,
174 id. 552; S. Ry. v. Allison, 190 id. 326.
(71) Paul v. Virginia, 8 Wall. 168; Dueat v. Chicago, 10 id. 410.
(72) Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 id. 410;
L. 1. CO. v. Massachusetts, ibid. 566; H. S. M. Co. u. New
York, 143 U.S. 305. See also Kidd v. Alabama, 188 id. 730.
(73) L. I. Co. v. French, 15 How. 404, 407; Paul v. Virginia, 8
Wall. 168; St. Clair v. Cox, 106 U.S. 350, 356; H. S. M.
Co. v. New York, 143 id. 305; Ashley v. Ryan, 153 id. 436;
Hooper v. California, 155 id. 648; New York v. Roberts, 171
id. 658; Bedford v. E. B. & L. Assi3., 181 id. 227.
(74) L. I. Co. v. French, 18 How. 404; St. Clair v. Cox, 106 U.
S. 350, 356.
(75) Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 id. 410;
L. I. Co. v. Massachusetts, ibid. 566; P. F. Assn. v. New
York, 119 U.S. 110; Hooper alifor@, 155 id. 648; N. Y. L.
I. Co. v. Cravens, 178 id. 389.
(76) Bedford v. E. B. & L. Assn., 181 U.S. 227; ef. D. G. Co. v.
U.S. G. Co., 187 id. 611.
(77) H. T. Co. v. Morse, 20 Wall. 445; S. P. Co. v. Denton, 146
U.S. 202.
(78) Doyle v. C. 1. Co,, 94 U.S. 535; Cable v. U.S. L. I. Co.,
191 id. 288.
(79) Barron v. Buriaside, 121 U.S. 186.
(80) In this case an engine driver of a foreign railway
corporation.
(81) Barron v. Burnside, 121 U.S. 186.
(82) Goodwin v. C. M. I. Co., 110 U.S. 1.
(83) C. M. Co. v. Ferguson, 113 U.S. 72 7. But see also Pritts
v. Palmer, 132 id. 282; F. & M. C. Co. v. Fitzgerald, 137
id. 98; C. N. B. & L. Assn. v. Denson, 189 id. 408.
(84) C. N. B. & L. Assn. v. Denson, 189 U.S. 408.
(85) C. M. L. I. Co. v. Spratley, 172 U.S. 602.
(86) C. S. Ry. v. Gebhard, 109 U.S. 527.
(87) Relfe v. Rundle, 103 U.S. 222. See also Pinney v. Nelson,
183 id. 144.
(88) Per Field, J., Davis v. Beason, 133 U.S. 333, 342.
(89) Reynolds v. U.S., 98 U.S. 145. See also Mormon Church v.
U.S., 136 id. 1.
(90) Bradfield v. Roberts, 175 U.S. 291.
(91) In re Rapier, 143 U.S. 110. As to the right of assembly and
of petition, see U.S. v. Cruiksbank, 9,2 U.S. 542, 552.
(92) U.S. v. Williams, 194 U.S. 279, 292.
(93) U.S. v. Harris, 106 U.S. 629.
(94) Slaughter House Cases, 16 Wall. 36.
(95) Plessy v. Ferguson, 163 U.S. 537.
(96) Robertson v. Baldwin, 165 U.S. 275.
(97) White v. Hart, 13 Wall. 646; Boyce v. Tabb, 18 id. 546.
(98) Osborn v. Nicholson, 13 Wall. 654.
(99) Clay v. Field, 138 U.S. 464.
(100) The Slaughter House Cases, 16 Wall. 36. See also See. 119,
supra.
(101) Yiek Wo v. Hopkins, 118 U.S. 356.
(102) Minor v. Happersett, 21 Wall. 162.
(103) Bradwell v. The State, i6 Wall. 130.
(104) Maxwell v. Dow, 176 U.S. 581. See also See. 125, supra.
(105) See. 117, supra.
(106) See. 131, infra.
(107) See. 127, supra.
(108) See. 127, supra.
(109) Yick Wo v. Hopkins, 118 U.S. 356.
(110) Strauder v. West Virginia, 100 U.S. 303; Bush v. Kentucky,
107 id. 110; Gibson v. Mississippi, 162 id. 565; Carter v.
Texas, 177 id. 442; Rogers v. Alabama, 192 id. 226. See also
Ex parte Virginia, 100 id. 339; Brownfield v. South
Carolina, 189 id. 426.
(111) Virginia v. Rives, 100 U.S. 313; Bush v. Kentucky, 107 id.
110; In re Shibuya Jugiro, 140 id. 291, 297; Gibson v.
Mississippi, 162 id. 565. See also Williams v. Mississippi,
170 id. 213; Tarrance v. Florida, 188 id. 519.
(112) C.,M.&St.P.Ry. v. Minnesota, 134 U.S. 418; Reagan v.
F.L.&T.Co., 154 id. 362; Smyth v. Ames, 169 id. 466; L. S. &
M. S. Ry. v. Smith, 173 id. 684; ef. L. & N. R. v. Kentucky,
183 id. 503; M. & St. L. R. v. Minnesota, 186 id. 257.
(113) G., C. & S. F. Ry. v. Ellis, 165 U.S. 150. See, however,
A., T. & S. F. R. v. Matthews, 174 id. 96; and also F. M. L.
Assn. v. Mettler, 185 id. 308; 1. L. I. Co. v. Lewis, 187
id. 335; F. & M. I. Co. v. Dobney, 189 id. 301.
(114) Cotting v. K. C. S. Y. Co., 1:83 U.S. 79.
(115) Connolly v. U.S. P. Co., 184 U.S. 540.
(116) Santa Clara County v. S.P.R., 118 U.S. 394; P. M. Co. v.
Pennsylvania, 125 id. 181; G.,C.& S.F.Ry. v. Ellis, 165 id.
150; Smyth v. Ames, 169 id. 466; L.S.&M.S.Ry. v. Smith, 173
id. 684; M. P. Ry. v. Mackey, 127 id. 205; M. & St. L. Ry.
v. fierrickl, ibid. 210; M. & St. L. Ry. v. Beckwitb, 129
id. 26; C., C. & A. R. 1,. Gibbes, 142 id. 386; C. & L. T.
Co. v. Sandford, 164 id. 578.
(117) "Class legislation, discriminating against some, and
favouring others, is prohibited, but legislation which, in
carrying out a public purpose, is limited in its
application, if within the sphere of its operation it
affects alike all persons similarly situated, is not within
the Amendment." Barbier v. Connolly, 113 U.S. 32. "Arbitrary
selection can never be justified by calling it
classification.... It is apparent that the mere fact of
classification is not sufficient to relieve a statute from
the reach of the equality clause of the XIV Amendment, and
that in all cases it must appear not only that a
classification has been made, but also that it is one based
upon some reasonable ground -- some difference which bears a
just and proper relation to the attempted classification --
and is not a mere arbitrary selection:" G.C.&S.F. Ry. v.
Ellis, 165 U.S. 159, 165. "The question in each case is
whether the legislature has adopted the statute in exercise
of a reasonable discretion, or whether its action be a mere
excuse for an unjust discrimination, or the oppression or
spoliation of a particular class: " Holden v. Hardy, 169 U.
S. 398. "Classification...is not invalid because not
depending on scientific or marked differences in things or
persons in their relations. It suffices if it is practical,
and is not reviewable unless palpably arbitrary:" O.I. Co.
v. Daggs, 172 U.S. 562. "The very idea of classification is
that of inequality, so that it goes without saying that the
fact of inequality in no manner determines the matter of
constitutionality." A.,T.& S.F.R. v. Matthews, 174 U. 14.
106.
(118) Slaughter House Cases, 16 Wall 36.
(119) P. M. Co. v. Pennsylvania, 125 U.S. 181; H. S. M. Co. v.
New York, 143 id. 305; New York v. Roberts, 171 id. 658.
(120) Pace L,. Alabama, 106 U.S. 583.
(121) Dow v. Beidelman, 125 U.S. 680.
(122) St.L.&S.F.Ry. v. Gill, 156 U.S. 649; Reagan v. F.L.&T.Co.,
154 id. 362; Smyth v. Ames, 171 id. 361; M.&St.L.R. v.
Minnesota, 186 id. 257. See also C., M. & St. P. Ry. v.
Tompkins, 176 id. 167; L. & N. R. v. Kentucky, 183 id. 503.
(123) Stanislaus County v. S. J. & K. R. C. & 1. Co., 192 U.S.
201.
(124) C. & L. T. Co. v. Sandford, 164 U.S. 578.
(125) Munn v. Illinois, 94 U.S. 113, two justices dissenting;
Budd v. New York, 143 id. 517, three justices dissenting;
Brass v. North Dakota, 153 id. 391, four justices
dissenting.
(126) M.P.Ry. v. Mackev, 127 U. S. 205; M. & St. L. Ry. v.
Herrick, ibid.210. (127) Tullis v. L. E. & W. R., 175 U.S.
348.
(128) Powell v. Pennsylvania, 127 U.S. 678. It may not, however,
regulate commerce by prohibiting the We, in original
packages, of oleomargarine brought from other states:
Schollenberger v. Pennsylvania, 171 U.S. 1.
(129) C. C. D. Co. v. Ohio, 183 U.S. 238.
(130) Walston v. Nevin, 128 U. S. 578; French v. B. A. P. Co.,
181 id. 324; Detroit v. Parker, ibid. 399; Shumate v. Heman,
ibid. 402; Chadwick i7. Kelley, 187 id. 540; Schaefer v.
Werling, 188 id. 516; cf. Norwood v. Baker, 172 id. 269.
(131) Field v. B. A. P. Co.y 194 U.S. 618.
(132) M. P. Ry. v. Humes, 115 U. S. 512; M. & St. L. Ry. v.
Beckwith, 129 id. 26; M. & St. L. Ry. v. Emmoias, 149 id.
364.
(133) M., K. & T. Ry. v. May, 194 U. S. 267. Three justices
dissented.
(134) B. G. R. v. Pennsylvaiaia, 134 U.S. 232; Jennings v. C. R.
C. Co., 147 id. 147.
(135) Kentucky R. Tax Cases, 115 U.S. 321; A. Ex. Co. v. Ohio,
165 id. 194; Magoun v. 1. T. & S. @k, 170 id. 283; Orr v.
Gilman, 183 id. 278; P. C. & P. R. v. Reynolds, ibid. 471;
Billings v. Illinois, 188 id. 97; Kidd v. Alabama, ibid.
730; Missouri v. Dockery, 191 id. 165. See also M. & M. Bank
v. Pennsylvania, 167 id. 461; Connolly v. U.S. P. Co., 184
id. 540.
(136) Giozza v. Tiernan,.148 U.S. 657; Clark v. Titusville, 184
id. 329.
(137) H. I. Co. v. New York, 134 U.S. 594.
(138) C., C. & A. R. v. Gibbes, 142 U. 8, 386.
(139) New York v. Squire, 145 U.S. 175.
(140) Giozza v. Tiernan, 148 U.S. 657.
(141) 41 Rippey v. Texas, 193 U.S. 504.
(142) Ohio v. Dollison, 194 U.S. 445.
(143) C. S. Ry. v. Wright, 151 T:-. S. 470.
(144) N. Y. & N. E. R. v. Bristol_ 151 U.S. 556.
(145) Brass v. North Dakota, 15a U.S. 391.
(146) Moore v. Missouri, 159 U.S. 673; McDonald v. Massachusetts,
180 id. 311.
(147) Eldridge v. Trezevant, 160 U.S. 452.
(148) Plessy v. Ferguson, 163 U.S. 537.
(149) Lowe v. Kansm, 163 U.S. 81.
(150) St. L. & s. P. Ry. v. Mathews, 165 U.S. 1.
(151) A., T. & S. F. R. v. Matthews, 174 U.S. 96. Four justices
dissented.
(152) F.M.L. Assn. v. Mettler, 185 U.S. 308. See also I.L.I.Co.
v. Lewis, 187 id. 335.
(153) F. & M. I. Co. v. Dobney, 189 U. S. 301. Three justi@
dissented.
(154) C. S. Ry. v. Snell, 193 r. S. 30.
(155) Jones v. Brim, 165 L. S. 180.
(156) N. Y., N. H. & H. R. v. New York, 165 U.S. 628.
(157) Holden v. Hardy, 169 U. Zi. 366. Two justices dissented.
(158) Atkin v. Kansas, 191 U.S. 207. Three justices dissented.
(159) Williams v. Mississippi, 170 U.S. 213; Tarrance v. Florida,
188 id. 519; cf. Carter v. Texas, 177 id. 442; Rogers v.
Alabama, 192 id. 226. But the Amendment does not protect
individuals against unauthorized acts by state officials:
Barney v. City of New York, 193 U.S. 430. See Arbuckle v.
Blackburn, 191 id. 405.
(160) O. I. Co. v. Daggs, 172 U.S. 557.
(161) Blake v. McClung, 172 U.S. 239;Sully v. American Nat. Bank,
178 id. 289.
(162) St. L., I. M. & St. P. Ry. v. Paul, 173 U.S. 404.
(163) Brown v. New Jersey, 175 U.S.172. See also Hayes v.
Missouri, 120 id. 68.
(164) Maxwell v. Dow, 176 U.S. 581.
(165) Adams v. New York, 192 U.S. 585.
(166) Clark v. Kansas City, 176 U.S. 1 14.
(167) Petit v. Minnesota, 177 U.S. 164.
(168) A. S. R. Co. v. Louisiana, 179 U.S. 89.
(169) Williams v. Fears, 179 U.S. 270.
(170) H. M. L. I. Co. v. Warren,, 181 lLT. S. 73.
(171) Mallet v. North Carolina, 181 U.S. 589.
(172) New York v. Barker, 179 U.S. 279. See also F.C.&P.R. v.
Reynolds, 183 id. 471.
(173) F. C. & P. R. v. Reynolds, 183 U.S. 471.
(174) L. & N. R. v. Kentucky, 183 U.S. 503.
(175) Booth v. Illinois, 184 TT. S. 425.
(176) Otis v. Parker, 187 U. ;S. 606.
(177) St. L. C. C. Co. v. Illinois, 185 U.S. 203.
(178) Railroad Co. v. Richmond, 96 U.S. 521.
(179) Barbier v. Connolly, 113 U. S. 27; Boon Hing v. Crowley,
ibid. 703.
(180) Natal v. Louisiana, 139 U.S. 621.
(181) Fischer v. St. Louis, 194 U.S. 361.
(182) Crowley v. Christensen, 137 U.S. 86.
(183) In re Manning, 139 U.S. 504.
(184) Howard v. Fleming, 191 U.S. 126.
(185) Dancan v. Missouri, 152 U.S. 377; Tinsley v. Anderson, 171
id. 101; Maxwell v. Dow, 176 id. 581; cf. Missouri v. Lewis,
101 id. 22; Brown v. New Jersey, 175 id. 172; Minder v.
Georgia, 183 id. 559.
(186) Cumming v. Board of Education, 175 U.S. 528.
(187) Wilson v. Eureka City, 173 U.S. 32. See also Davis v.
Massachusetts, 167 id. 43; Gundling v. Chicago, 177 id. 183.
(188) U.S. v. Harris, 106 U.S. 629.
(189) Act 1st March, 1875, 18 Stat. 335.
(190) Civil Rights Cases, 109 U.S. 3. Bee also Barney v. City of
New York, 193 id. 430.
(191) Supra, p. 70.
CHAPTER XII:
THE FEDERAL SUPREMACY AND THE RESERVED RIGHTS OF THE STATES.
133. The results of federal supremacy.
134. The constitutional reservation of the rights of the states.
135. The nature and extent of those reserved rights.
136. The importance of the preservation of the rights of both
the United States and the states.
The results of federal supremacy.
133. A consideration of the cases which have been cited in the
preceding chapters of this book leads to the conclusion that the
supremacy of the government of the United States, within its
constitutional sphere of action, involves: first, the exercise of
judicial power by the government of the United States for the
purposes of enforcing the rights created by the Constitution,
laws, and treaties of the United States, of punishing offenses
against the laws of that government, and of finally determining
the judicial construction of the Constitution, statutes, and
treaties of the United States, and of the constitutions and
statutes of the states, so far as regards subjects of federal
jurisdiction; second, the exemption of all property and agencies
of the federal government from state control; and third, the non-
exercise by the states of powers clashing with the powers granted
by the Constitution to the government of the United States.
The constitutional reservation of the rights of the states.
134. Articles IX and X of the Amendments to the Constitution
declare that, "the enumeration in the Constitution of certain
rights shall not be construed to deny or disparage others
retained by the people .... The powers not delegated to the
United States by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the
people." If these Amendments had never been adopted, the
construction of the Constitution as a whole would lead inevitably
to the conclusion that, in so far as the states are not
controlled by the expressed or implied restrictions contained in
the Constitution of the United States, they may severally
exercise all the powers of independent governments. (1)
The nature and extent of those reserved rights.
135. The nature and extent of the reserved rights of the states
must be determined by a process of reasoning by exclusion,
involving a statement of the express and implied constitutional
restraints upon freedom of state action, and a conclusion that
any state may, so far as the United States are concerned,
rightfully exercise every power of government which is not
included within the specific restraints thus enumerated. A
consideration of the terms of the Constitution and of the effect
of the judgments of the court, which have been cited in the
preceding chapters of this book, renders it easy to formulate a
statement of the general nature of the constitutional restraints
upon the states. by force of those restraints, a state cannot
withdraw from the Union, nor deprive itself of its rights as one
of the United States, nor emancipate itself from the
constitutional limitations upon freedom of state action; it
cannot have any international relations with foreign states, nor
with any other of the United States; it cannot enter into
treaties with foreign powers, nor make interstate compacts; it
cannot engage in war, unless actually invaded, or in such
imminent danger as will not admit of delay; it cannot grant
letters of marque and reprisal; it cannot adopt any other than a
republican form of state government, nor grant any title of
nobility; it cannot prescribe the conditions of its citizenship,
for the birth within the United States of any person subject to
their jurisdiction, or the naturalization of any person under the
acts of Congress, followed, in either case, by residence within a
state, makes the person so born or naturalized, and so residing,
a citizen of that state; it may not, under the penalty of a
reduction in the basis of representation, delay or abridge the
right to vote at elections for electors, congressmen, state
executive, or judicial officers, or legislators of any male
inhabitant twenty-one years of age and a citizen of the United
States; it cannot, in its regulation of the exercise of the right
of suffrage by its citizens, discriminate because of race, color,
or previous condition of servitude; it cannot in its action with
regard to its own citizens or with regard to temporary denizens
within its territory, abridge those privileges or immunities
which are common to citizens of the United States, nor deprive
any person of life, liberty, or property, without due process of
law, nor deny to any person the equal protection of the laws; it
cannot deny to citizens of other states those privileges and
immunities of citizenship which it allows to its own citizens; it
cannot control or regulate the immigration or residence of
aliens; it cannot tax the property of the United States, nor the
agencies employed by the United States in the execution of its
constitutional powers to such an extent as to interfere with the
full performance by such agents of their duties to the United
States, nor the subjects of foreign or interstate commerce in
such a manner as to amount to a regulation of such commerce, nor
lay any imposts or duties on imports or export, except what may
be absolutely necessary for executing its inspection laws, nor
lay any duty on tonnage; it cannot coin money, nor emit bills of
credit, nor make anything but gold and silver coin a tender in
payment of debts; it cannot, by any law or by any act to which
it, by its enforcement thereof, gives the force of a law, deprive
a party of the legal right of enforcing, or obtaining
compensation for the breach of, an express and valid contract,
executed or executory; it cannot regulate commerce, foreign or
interstate, or with the Indian tribes, by obstructing or
burdening, or discriminating against, such commerce; it cannot
exercise judicial jurisdiction over persons or subject-matters
rightfully withdrawn by the United States from its jurisdiction,
and in its exercise of jurisdiction it cannot derogate from the
supremacy of the Constitution, laws, and treaties of the United
States, nor fail to give full faith and credit to the public
acts, records, and judicial proceedings of every other state; it
cannot pass any bill of attainder or ex post facto law; and it
cannot so exercise its powers of police regulation as to
interfere with the exercise of the constitutional powers of the
United States, or, in other words, in such manner as to operate
upon persons or property brought within its jurisdiction in the
exercise of powers granted to the United States, before such
persons or property shall have lost their distinctive character
and merged in the mass of persons or property within the
territory of the state. Such are substantially the constitutional
restraints upon the powers of the states; and their practical
effect is that, while limiting the powers of each state in that
which concerns foreign nations, and in that which affects the
interests of other states, and of the citizens of those other
states, it yet reserves to each state full powers of self-
government in all that affects only the interests of that state
and of its own citizens.
The importance of the preservation of the rights of both the
United States and the states.
136. The Constitution was the result of a struggle between
contending parties, the one fearing a disintegration of the Union
as a consequence of the weakness of the confederation, and
striving to create a nation, and the other mindful of the contest
for the independence of the colonies, and seeking to sacrifice as
little as possible of the autonomy of the states. Fortunately for
the peace and prosperity of the country, and for the permanence
of its free institutions, neither party triumphed, and their
conflict of opinion gave birth to a government, which, though
national in its relations to foreign powers, and in the
directness of its action upon the citizens of the several states,
is also federal in its reservation to the states and the people
of all powers not expressly, or by necessary implication, granted
to the United States. The distinguishing characteristics of the
Constitution, thus created, are the Limitation in terms of the
powers confided to the United States, the reservation to the
states of the right of local self-government, and that practical
conservatism, which is the necessary consequence of the supremacy
of a written Constitution, whose manner of amendment guards it
against hasty changes. The government created by that
Constitution has. stood the tests of time and growth; its
nationality has survived the shocks of foreign and of civil war;
and its recognition of the principle of home rule has overcome
the disintegrating tendencies the expansion of territory and the
increase of population that in the future as in the past the
United States escape the perils of dissolution and the danger of
consolidation, it is necessary that its Constitution be
maintained in its integrity, and that the reserved rights of
states, and the supremacy of the United States within limits of
its delegated powers, be alike jealously guarded. So long as that
just equipoise of federal and of state power shall be preserved,
and so long as the mass of the people shall continue to be God-
fearing law-abiding, and shall steadfastly resist any usurpation
of power, by whomsoever made, the United States will triumph
over all that may endanger the perpetuity of their free
institutions.
(1) Supra, Section 3.
(2) Section 4 of Article IV of the Constitution requires the
United States to "guaranty to every state in this Union a
republican form of government." It rests with Congress to
decide what government is the established one in a state,
and also to determine upon the means proper to be adopted to
fulfil the guaranty of a republican form of government to
the states: Luther v. Borden, 7 How. 1, 42. See also Taylor
and Marshall v. Beckham, 178 U. S. 548. Chase, C. J.,
pointed out in Texas v. White, 7 Wall. 727, that this
constitutional obligation required the United States, after
the suppression of the Rebellion, to re-establish the
representation in Congress of the states lately in
rebellion.
INDEX:
(References are to the pages in the original printed work.)
ACTIONS.
Against the United States, 209, 212.
Against a state, by the United States, 209.
Between states, 211.
Between a state and citizens of another state, 213, 258.
Between citizens of different states 210, 215, 239.
Legislation affecting, as impairing contracts, 142, 143.
Legislation affecting, as denying due process of law, 275,
279.
See also JUDICIAL POWER.
ADMIRALTY.
Jurisdiction in, 206.
AGENCIES.
Federal, state taxation of, 44.
State, federal taxation of, 39.
ALIENS.
Admission and naturalization of, 291, 296.
ALLIANCES.
By states forbidden, 191.
AMBASSADORS.
Jurisdiction in cases affecting 197, 206, 221.
AMENDMENTS.
First eight limit only federal government, 258, 298.
1, 309.
IV, '.145.
V, 247, 251, 297.
VI, 253.
VII, 255.
VIII, 257.
XI, 258.
XIII, 310.
XIV, purposes of, 311.
XIV, citizenship, 290, 292.
XIV, privileges and immunities of citizenship, 298.
XIV, due process of law, 273, 297.
XIV, equal protection of the laws, 312.
XIV, right of suffrage, 292.
XV, 291, 293, 294, 295.
APPELLATE JURISDICTION. See Judicial Power (Chapter X).
ATTAINDER.
Prohibition of bills of, 182.
Bills of, deflued, 187.
Bills of, illustrations of, 188.
BANKS, NATIONAL.
Power of Congress to create, 17.
State taxation of, 48.
Federal taxation of, 17, 23.
BANKS, STATE.
Federal taxation of, 17, 40.
BlLLS OF ATTAINDER. See ATTAINDER.
BILLS OF CREDIT.
Prohibition of State, 189.
Definition of, 189.
Illustrations of, 189, 190.
BILLS OF EXCHANGE.
Dealing in, taxable by states, 55, 62.
BILLS OF LADING.
State. taxation of, 63.
BRIDGES.
Regulation of, 82.
CARRIERS. See RAILWAYS, SHIPPING.
CASES.
Requisites of judicial, 228.
See also ACTIONS, JUDICIAL POWER.
CHARTERS.
As contracts, 163, 165, 168.
Implied contracts in, 170, 173, 174, 176.
CIRCUIT COURTS OF THE UNITED STATES.
Jurisdiction of 219 221.
CIRCUIT COURTS OF APPEALS OF THE UNITED STATES.
Jurisdiction of, 219, 220).
CITIZENS.
Of the United Staten, 290.
Of a state, 291, 29@-).
Privileges and immunities of citizens of the United States.
Privileges and immunities of citizens of one state within
state, 300.
Right to vote not a privilege of citizenship, 292.
Discrimination in state regulation of suffrage, @193.
Right to serve on juries, 295.
CIVIL RIGHTS.
Federal regulation of, unconstitutional, 32.
CLASSIFICATION.
Of persons or property for purposes of state legislation, 3
Uniformity in federal taxation, 26, 35, 37.
COLONIES. See TERRITORIES.
COLORED PERSONS.
Separate transportation, 98, 317.
Exclusion from schools for white students, 322.
Federal regulation of civil rights unconstitutional, 322.
Right to vote, 292.
Right to serve on juries, 295, 312.
COMITY, INTERSTATE. ALLIANCES, FULL FAITH AND CREDIT
COMMERCE.
Definition of, 62.
Regulation of, 59, 64.
Constitutional provisions as to, 59.
Historical reason for provisions, 61.
Federal statutes regulating, 66.
Limits of federal and state regulation of, 68.
Taxation as regulation of, 54, 90.
Distinction between internal and foreign or interstate, 68.
Internal commerce, 70.
With Indian tribes, 135.
COMMON LAW.
Theory of judicial system under, 199.
In federal courts, 239.
COMPACTS BETWEEN STATES, 191.
COMPENSATION.
For private property taken for public use, 253, 277, 278.
CONCURRENT JURISDICTION.
Of federal and state courts, 217, 268.
CONFLICT OF JURISDICTION.
Between federal and state courts, 265.
CONSTITUTION OF THE UNITED STATES.
By whom ratified, 1.
Effect of ratification of, 1.
Rules of construction of, 233, 234.
Supremacy of, 325.
CONSTRUCTION OF CONSTITUTION AND STATUTES.
Rules of, '-)32, 233.
CONSULAR COURTS.
Establishment of, 19, 246.
CONSULS.
Jurisdictions in cases affecting, 197, 206, 221.
CONTRACTS.
Prohibition of impairment of obligation of, 137.
Prohibition affects only state laws, 137.
"law" defined, 138.
"obligation" defined, 142.
"contracts" defined, 147.
History of prohibition, 155.
Judgements of state courts, as to non-existence or non-
impairment, not conclusive, 141.
Contracts made by states, 160.
Contracts made by political subdivisions, 154.
Contracts of state with political subdivisions, 170.
Regulation of remedies, 142.
Judgements on contracts, 153.
Charters as contracts, 162, 163, 170.
Express exemption from state taxation, 52, 161.
Implied exemption from state taxation, 52, 713.
Express grants of peculiar privileges, 168.
Implied grants of peculiar privileges, 174.
Exemption from police power, 176.
Contracts as to matter of public concern, 178.
Constitutional prohibition as affecting suits against states,
180.
Force and effect of constitutional prohibition, 181.
CONTRACTS IN RESTRAINT OF TRADE.
Under Anti-trust Act and at common law, 124.
CONTROVERSIES.
See ACTIONS.
CORPORATIONS.
Citizenship of, for jurisdictional purposes, 303.
Not citizens within meaning of Art. IV, sec. 2, 304.
Persons within meaning of XIV Amendment, 304,314.
Foreign, 303, 314.
COUNSEL FOR DEFENSE.
Right to, 254.
COURTS, FEDERAL. See Judicial Power, Supreme Court, Circuit Court
of Appeals, Circuit Court, District Courts.
COURTS, STATE. See JUDICIAL POWER.
COURTS MARTIAL.
Jurisdiction of, 243, 247.
CREDIT, BILLS OF. See BILLS OF CREDIT.
CRIMES.
Ex post facto laws prohibited, 182.
Federal Judicial procedure, 246-258.
Due process of the laws in state judicial procedure, 312,
317,319, 320, 322
Cruel and unusual punishment, 257.
CRUEL AND UNUSUAL PUNISHMENT.
Prohibited, 257.
CURRENCY.
Legal Tender, 20.
Bills of Credit, 189.
DAMS
Regulation of, 82.
DIRECT TAXATION.
By United states, 30.
DISTRICT COURTS OF THE UNITED STATES.
Jurisdiction of, 219, 222.
DIVORCE.
Not impairment of contract, 148.
Recognition of decrees obtained in other stat-I 283, 286.
DUE PROCESS OF LAW.
Under V Amendment, 247, 297.
Under XIV Amendment, 273, 311.
DUTIES. See EXPORTS, IMPORTS.
EIGHTH AMENDMENT.
Cruel and unusual punishments, 257.
ELECTIONS.
State regulation of, 292.
Federal regulation of, 293, 295.
ELEVENTH AMENDMENT.
Effect of, 258.
EQUAL PROTECTION OF THE LAWS.
Right to, 312.
EXCISES.
Requirement of uniformity of, 35.
EXPORTS.
state Taxation of , 43, 87.
State inspection of, 89.
Term not applicable to interstate commerce, 73.
Terms applied to commerce with Puerto Rico, 12, 27, 28, 37, 73.
Taxation of, by United States, 28, 73.
EX POST FACTO LAWS.
Prohibition of, 182.
Definitions of, 184.
Illustration of, 185.
EXPRESSED RESTRAINTS.
On states, 4
EXTRADITION.
From other states, 193.
FAITH AND CREDIT.
To statutes, records, and judgements of other states, 280.
FERRIES.
Taxation of, 54, 57, 82.
Regulation of, 81, 100.
FIFTEENTH AMENDMENT.
Prosecution upon information, 247.
Due process of law, 247.
Putting twice in jeopardy, 251.
Compelling accused to be a witness against himself, 252.
Compensation for property taken, 253.
FIRST AMENDMENT, 309.
FISHING
State regulation of, 72, 274, 299, 301.
FOREIGN CORPORATIONS.
Rights and liabilities of, 303.
FOURTEENTH AMENDMENT.
Scope of,
As defining citizenship, 290, 291, 292.
As affecting right to vote, 293, 294.
Privileges and immunities of citizens of the United Staten,
298.
Due process of law, 273.
Equal protection of the laws, 312.
FOURTH AMENDMENT, 246.
FUGITIVE FROM JUSTICE.
State obligation as to, 193.
Jurisdiction as to issue of habeas corpus in cases of, 194.
FULL FAITH AND CREDIT.
To statutes, records and judgments of other states, 280.
GRAND JURY. See INFORMATION.
GRANTS.
As contracts, 160.
HABEAS CORPUS.
In cases of fugitives from justice, 194.
In cases of restraint of liberty in violation of the
Constitution, 225.
In cases of restraint for acts done in pursuance of federal
authority, 214.
HARBOR REGULATIONS.
By states, 78.
HEALTH LAWS.
Established by states, 80.
IMMIGRANTS.
Admission of, 296.
IMMUNITIES OF CITIZENSHIP. See CITIZENS.
IMPAIRMENT OF CONTRACTS. See CONTRACTS.
IMPEACHMENTS.
Jurisdiction in, 243.
IMPLIED POWERS.
Defined, 3.
Necessity of, 15.
Grant of, 16.
Illustration of, 17.
IMPLIED RESTRAINT.
On states, 4, 6, 44.
IMPORTS.
State taxation of, 43, 87.
State Prohibition of sale of, 100.
Federal taxation of, 66.
Federal prohibition of, 66.
Term not applicable to interstate commerce, 87.
"Imports" into Puerto Rico from United States, 12, 27, 28, 37.
"Imports" into United States from Puerto Rico, 12, 13, 37.
IMPOSTS
State imposition of, 43.
IMPROVEMENTS OF NAVIGATION.
Federal power over, 85.
INCOME TAX, 30
INDIAN TRIBES.
Not states, 135, 213.
Regulation of commerce with, 135.
Their exercise of powers not restrained by V Amendment, 247.
INDICTMENT.
After submission to grand jury amenable only on resubmission,
247.
INFORMATION, PROSECUTION UPON.
In federal trials, 12, 247.
In state trials, 274,320.
INSOLVENT LAWS.
Effect of state, 150.
INSPECTION LAWS.
State, 44, 89, 91, 280, 321.
Federal, 251.
INSURANCE.
State regulation of contracts of, 63.
State regulation of suits against insurance companies, 318,
319,320.
INTERSTATE COMMERCE ACT, 106.
INTOXICANTS. See LIQUOR LAWS.
JEOPARDY.
Putting twice in, 251.
"JIM CROW" LEGISLATION, 98, 317, 322.
JUDGES.
Tenure of office of federal, 196.
Compensation of federal, not diminishable during continuance in
office, 197.
Character of federal judiciary, 230.
JUDICIAL POWER.
Necessity of federal, 203.
Constitutional provisions as to federal, 196.
Courts of the United States, 219.
Federal Jurisdiction, 214.
Exclusive federal jurisdiction, 217.
Concurrent federal jurisdiction, 217, 268.
Original Jurisdiction of federal courts, 216, 220.
Appellate Jurisdiction of federal courts, 223.
Removal of causes, 224, 227.
In cases in law and equity under the Constitution, 205.
Jurisdiction dependent on character of parties. See ACTIONS.
Jurisdiction as to political questions, 228, 231.
Jurisdiction in habeas corpus. See HABEAS CORPUS.
Jurisdiction in admiralty, 206, 243, 269.
Courts martial, 243.
Military commissions, 243, 246, 249.
Impeachments, 243, 244.
Construction of Constitution and statutes, 232, 233.
Limitation of, by Amendments. See AMENDMENTS.
Law administered in federal courts, 239.
Relations between federal and state courts, 265.
Judicial power of the states as affected by "full faith credit"
clause, 280.
JUDICIAL SYSTEM.
Theory of, under common law, 199.
JUDGEMENTS.
As contracts, 153.
Effect of, in other states, 280.
Scope of, of courts, 237.
JURISDICTION.
Conflict of, between state and federal courts, 265.
Of federal courts, See JUDICIAL POWER.
JURY
Trial by, not to be taken away by federal government, 246, 249,
253, 255.
Waiver of trial by for minor offense, 246, 254.
Trial in state courts, 274, 320.
Discriminations forbidden in state regulation of jury service,
312.
JUST COMPENSATION.
For private property taken for public use, 253, 277, 278.
LANDS.
Public, state taxation of, 45, 46.
LAW OF THE LAND, 4, 248.
LEGAL TENDER.
Power of Congress over, 20.
LIBERTY.
Religious, 309.
Of speech, 309.
Deprivation of, without due process of law, 147, 250, 251, 280,
297.
LIFE, LIBERTY AND PROPERTY. See DUE PROCESS of LAW.
LIMITATIONS, STATUTES OF.
As impairing contracts, 143.
As denying due process of law, 275, '-179.
LIQUOR LAWS.
License legislation, 317, 321.
Local option, 275, 317.
Prohibition, 100, 278.
Original package doctrine, 91, 93.
Inspection, 90.
Taxation, 92.
LOTTERIES.
Federal legislation, 64.
State legislation, 178, 320.
MILITARY COMMISSIONS, 243.
MONEY. See BILLS OF CREDIT, LEGAL TENDER.
MONOPOLIES.
Federal legislation, 120.
State grants of, 168, 169, 175, 178, 310, 314.
State restriction of, 313.
NATIONAL BANKS.
Power of Congress to create, 17.
State taxation of, 48.
Federal taxation of, 17, 23.
NATURALIZATION.
Regulation of, by United States, 291.
State courts may admit to citizenship under acts of Congress,
218, 291.
NAVIGABLE WATERS.
Defined, 209.
Title to land under, 71.
Improvements of, 85.
NAVIGATION.
Regulation of, by United States, 77.
Regulation of, by states, 77.
Improvements of, 85.
NEGROES. See COLORED PERSONS.
ORDINANCE OF 1787.
Effect of, on regulation of commerce, 84.
ORIGINAL JURISDICTION.
Of federal courts, 216, 220.
ORIGINAL PACKAGE.
Doctrine, 93.
Taxation of goods in, see also 88.
PAINS AND PENALTIES.
Prohibition of bills of, 182, 188.
Defmitioa of bills of, 188.
PATENTS.
Granted by United states do not exempt from state taxation, 47.
Granted by United States do not exempt from state police
regulation, 70.
Exclusive license to use, does not violate Anti-trust law, 123.
Jurisdiction of state courts in patent cases, 269.
PERSON, RIGHTS OF, See RIGHTS OF PERSONS.
PHILIPPINES, See TERRITORIES.
PIERS.
Regulation of, 87.
PILOTAGE
Regulation of, 76.
POLICE POWER.
Definition of, 323.
Of the United States, 323.
Of the states, 323.
POLICE REGULATION.
As affecting commerce, 97.
Exemption by contract from, 176.
PORT DUES.
Imposition of, by states, 75.
PUERTO RICO.
Taxation, 12, 13, 27, 28, 37, 73.
immigration from, 298.
PORT REGULATIONS.
Established by states, 78.
PORTS, PREFERENCES OF, 73.
PREAMBLE OF THE CONSTITUTION.
Force and effect of, 6.
PRIVILEGES AND IMMUNITIES.
Of citizens of the United States '-)98.
Of citizens of one state within another state, Ji)U.
PROCESS OF LAW. See DUE PROCESS or LAW.
PUBLIC LANDS.
State taxation of, 45, 46.
QUARANTINE REGULATIONS. 80.
RAILWAYS.
Federal regulation of interstate transportation by, 106.
State regulation of interstate transportation by, 97.
State police regulation of, 97.
State taxation of, 102.
Tolls for use of improved facilities for transportation, 102.
RAILWAY RATES, STATE REGULATION OF.
As limited by commerce clause, 98, 101, 101a.
As limited by contract, 164, 177, 178.
As limited by requirement of due process of law, lola, 278.
As limited by requirement of equal protection of the laws,
101a,313, 315, 321.
RAILWAY STATIONS.
State regulations concerning, 99, 100, 101.
RATIFICATION OF CONSTITUTION.
Effect of, 1.
RECORDS.
Proof of, in other states, 280.
REGULATION.
Of commerce. See COMMERCE.
Of remedy. See CONTRACTS.
RELATION BETWEEN THE GOVERNMENTS, 1.
RELATION BETWEEN FEDERAL AND STATE COURTS, 265.
RELIGION.
Establishment of, 369.
REMEDY, REGULATION OF. See CONTRACTS.
REMOVAL OF CAUSES, 224, 227.
REPUBLICAN FORM OF GOVERNMENT.
Guaranteed to the states, 327.
RESERVED POWERS AND RIGHTS.
Of the states, 2, 325, 326.
RESTRAINTS UPON STATES, 4.
RETROSPECTIVE LAWS.
Not prohibited, 182, 183.
RIGHTS OF PERSON AND OF PROPERTY.
State control over, 298.
As protected by V Amendment, 247.
As protected by XIV Amendment, 273, 311, 312.
RULES OF CONSTRUCTION.
Of Constitution and statutes, 232, 233.
SEARCHES AND SEIZURES.
Unreasonable, by federal officers, prohibited, 246.
SECESSION.
Unconstitutionality of, 1.
SELF-GOVERNMENT.
Reservation to the states of right of, in local matters, 329.
SEVENTH AMENDMENT. 255.
SHIPPING.
Regulation of, by United States, 77.
Regulation of, by states, 77.
State taxation of, 57, 106.
SIXTH AMENDMENT, 253.
SLAVERY.
Abolished by XIII Amendment, 310.
STATES, THE
Existence of, before the Constitution, 2.
Independent of each other, so far as not controlled by
constitution, 2.
Powers and obligations of new, 2.
Restraints upon, 4.
Taxation by, 40.
Suits against, as affected by contracts, 180.
Suits against, as affected by XI Amendment, 214, 258.
Judicial power of, as affected by the federal supremacy, 23:2,
Judicial power of, as affected by grant of judicial power
United States,270.
Judicial power of, as affected by the XIV Amendment, 273.
Reserved rights of, 2, 325, 326.
Necessity for maintenance of rights of, 319.
STATE AGENCIES.
Federal taxation of, 39.
STATE BANKS.
Federal taxation of, 17, 40.
STATE COURTS, See JUDICIAL POWER.
SUITS. See ACTIONS, JUDICIAL POWER.
SUPREMACY OF THE UNITED STATES.
State taxation affected by the, 44.
State regulation of federal judicial process or practice, 265.
Supremacy of the Constitution, 3, 232.
Supremacy of the laws of the United States, 3, 233.
Supremacy of the treaties of the United States, 3, 238.
Results of the, 325.
SUPREME COURT.
Jurisdiction of, 219.
Constitution of, 220.
Appeals to, 2-6.
See also JUDICIAL POWER.
TAXATION.
Defined, 22.
Power of, in whom vested, 22.
Charges which are not taxes, 23, 39.
Not to be imposed for private purposes, 24.
TAXATION, FEDERAL.
Constitutional provisions as to, 25.
Restrictions upon, 26.
Uniformity of, 35.
Direct, 30.
Of imports and exports, 28, 29, 87.
In the territories 12, 26, 27, 28, 37.
Of state agencies 39.
TAXATION, STATE.
General power of, 40.
Illustrations of power of, 40, 41.
Expressed restraints on, 43.
Implied restraints on, 44.
Of federal agencies, 44.
Of national banks, 48.
Of imports, 88.
Of goods from other states, 43, 90.
Of person and property beyond its territory, 41, 42.
As affected by contracts of exemption, 52.
As a regulation of commerce, 54.
Denial of due Process of law in, 277.
Denial of equal protection of the laws in, 41, 316, 317, 320,
32
TELEGRAPHS.
Regulation of, 133.
State taxation of, 40, 134.
TERRITORIES.
Congressional power over, 7.
Taxation in, 12, 26, 27, 28, 37, 73.
Trial by jury in, 10, 12.
THIRTEENTH AMENDMENT.
Slavery and involuntary servitude prohibited by, 310.
TITLES OF NOBILITY.
Not to be granted by the states, 327.
TONNAGE.
Defined, 74.
State duties upon, 43, 44, 74.
TRADE MARKS.
Federal regulation of, 63.
TRANSIT.
Right of, not limitable by state taxation, 47, 104.
TRANSPORTATION. See RAILWAYS, SHIPPING.
TREATIES.
Supremacy of, 238.
TRIAL BY JURY. See JURY.
TRIBES. See INDIAN TRIBES.
TRUSTS.
Necessity of, 114.
Anti-trust law, 120.
TWICE IN JEOPARDY, 251.
UNIFORMITY. See CLASSIFICATION.
UNION.
Indissolubility of, 1.
UNITED STATES.
Limited powers of, 2.
Supremacy of, 3, 325.
VOTERS. See CITIZENS.
WARRANTS.
Requisites to issue of search, 246.
WATER-WAYS. See NAVIGABLE WATERS.
WHARVES.
State regulation of, 83. 87.
WITNESSES.
Right of accused to be confronted with, 254.
Right of accused to have compulsory process for obtaining, 254.
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C. Stuart Patterson