attachment against all the members of the common council, as for a contempt. The course taken by the common council necessarily involved the precise question whether the courts could exercise any jurisdiction over a municipal corporation for a breach of trust, violation of general principles of law, or bad faith. The question was one of very great interest, and attracted the attention which its importance deserved. Many objections were urged to the application for the attachment; but the one of principal importance was, that the resolution in question was an act of legislation, with which the courts could not rightfully interfere. And it was contended that no court of equity could interfere in any case, or for any purpose, with the legislative action of a municipal corporation, no matter how gross the violation of law, or even of the provisions of its own charter, or how great the nuisance threatened, or how corrupt the motive. But the doctrine was denied: it was declared that there was no distinction between a municipal corporation or any other corporation aggregate in respect to the powers of courts of jus tice over its proceedings; and that "although such a municipal body is clothed with legislative and even political powers, yet in the exercise of all its powers, it is just as subject to the authority and control of courts of justice to legal process, legal restraint, and legal correction, as any other body or person, natural or artificial." This doctrine was asserted on the uniform authority of the English cases and those of our own courts, and also on the constitutional provision, "that all corporations shall have the right to sue and shall be subject to be sued in all courts, in like cases as natural persons; "* while it was admitted that the court had no right to interfere with the proper legislative discretion of the corporation, it was declared that it could interpose its authority whenever it was necessary to prevent abuse, injustice, or oppression, the violation of a trust, or the consummation of a fraud. On the ground, therefore, that the complaint alleged sufficient cause to give the court jurisdiction, that the injunction was rightly issued, and *Cons. of N. Y. 1846, art. 8, § 3. that as long as in force it was entitled to obedience, an attachment was granted. * Where a municipal corporation has power to make reasona ble by-laws, it has been said that the question whether a given by-law is reasonable, is a question for the court, and not for the jury, and evidence on the subject is inadmissible. † If unrea sonable, the court holds them void. So, a by-law of the city of Boston in regard to sewage, has been held in that State to be void for inequality and unreasonableness. | We have already seen that a statute of a local or municipal character is as fatal to the validity of all contracts based on a violation of it, as if the act be one of a general character. And it has been intimated that a corporation ordinance was equally efficacious. In regard to the enforcement or sanction of by-laws, the rule is that they can only be enforced by a pecuniary penalty, unless there is some express act giving power to inflict other punishment.** As to the passage of municipal ordinances, the following decision is to be observed. It is a general rule of practice in legislative bodies which consist of two branches, that all business before them, and unfinished at the end of a session, is discontinued; and that if taken up at all at a session following, it must be taken up de novo. It has been held in New York, that the analogy of this rule applies to acts of a municipal corpora tion of a legislative character; and consequently an ordinance *Davis v. The Mayor, &c. of the City of New York, 1 Duer, 451. The cause came up again on the return to the attachment. People v. Compton, 1 Duer, 512. The doctrine of the previous case was sustained; one of the aldermen was impris oned for fifteen days, and the rest, with the exception of one who apologized, were fined $100 and costs. + Commonwealth v. Worcester, 3 Pick. 462. But how is the court to obtain the nec essary knowledge? In Vandine's Case, 6 Pick. 191, it is said, "To arrive at a correct decision, whether the by-law be reasonable or not, regard must be had to its object and necessity. Minute regulations are required in a great city, which would be absurd in the country." Necessity is certainly a fact; and how is the judicial knowledge of this fact to be arrived at? I believe it may be said that there is a deficiency in our system of the administration of justice, in not providing the courts with means to obtain for themselves satisfactory evidence or instruction in regard to questions of fact which are left to them to decide. The difficulty presents itself in regard to the construction of technical words in statutes, as well as in the matter above referred to. Vandine's Case, 6 Pick. 187, 191. City of Boston v. Shaw, 1 Met. 130. Ex parte Dyster in re Moline, 1 Merivale, 155; Bell v. Quin, 2 Sandford, 146; Beman v. Tugnot, 5 Sandf. 154; ante, p. 70. ** Gee v. Wilden, 2 Lvtw. 1320; Bosworth v. Budgen, 7 Mod. 459; 2 Str. 1112; Leathley v. Webster, Sayer, 251; Gray on Corpora tions, 8; Hills v. Hunt, 15 Com. B. 1, 6 J. Scott, 1, 25. granting to a city railroad company leave to use the streets for that purpose, which passed the board of assistant aldermen of the city of New York in 1852, but was not passed by the board of aldermen till 1853, after a new board had been elected, has been decided to be void. * In reference to the admissibility of the books of a municipal corporation as evidence, the Supreme Court of the State of New York has said, "that the corporation of the city of New York more nearly resembles the Legislature of an independent State, acting under a Constitution prescribing its powers, than an ordinary private corporation. The acts of this corporation concern the rights of the inhabitants of the city; it exercises a delegated power, not for its own emolument, but for the interests of its constituents; and while it keeps within the limits of its authority, the constituents are bound by the acts of the corporation. When the citizen wishes to show those acts, he must resort to the authentic record of them; which is the original minutes of the corporation.”† *Wetmore v. Story, Abbott's Practice Cases, vol. iii, p. 263. Some points of local municipal interest may here be noticed. In New York, as to the power of the corporation as to the construction of piers and bridges, see Marshall v. Guion, 4 Denio, 581. In the same State it has been held that an arrest cannot be made on Sunday for a violation of a corporation ordinance. Wood v. City of Brooklyn, 14 Barb. 425. See Trustees of Clintonville v. Keeting, 4 Denio, 341, for a decision on the validity of a trustee's ordinance imposing a fine for selling ardent spirits. For a long and interesting case on the subject of the powers of municipal corporations, see the Attorney General of the State of New York v. The Mayor, &c. of New York, 3 Duer, 119. Denning v. Roome, 6 Wend. 651, note 800; 3 Phillips on Evidence, p. 1150. CHAPTER X. LIMITATIONS IMPOSED UPON LEGISLATIVE POWER BY THE CONSTITUTIONS OF THE SEVERAL STATES OF THE UNION. The general Character of Constitutional Provisions regarded as Limitations upon Legislative Power.-Principal Restrictions imposed by the State Constitutions.-Guaranty of Private Property.-Trial by Jury.-Protection of Law.Searches and Seizures Taxation.- Police Regulations.- Titles of Bills.Amendments.-Repeal.-Constitutional Majorities.-Religious Tests.-Religious Societies. Creation of Judges.-Incorporations.-Trust Funds.-—Divorces.— Suits against the State. WE have thus far examined the subject of written law with reference to the general principles of the jurisprudence which we have derived from the English stock, and which govern wherever that system obtains. We now proceed to consider a branch of the great topic which is confined exclusively to this country-I mean CONSTITUTIONAL LAW. The late chief justice of the United States, in his survey of the events leading to the Declaration of Independence, on which he looked with almost a contemporary eye, when speaking of the first State governments organized in 1776, says that "the untried principle was everywhere adopted of limiting the constituted authorities by the creation of a written Constitution prescribing bounds not to be transcended by the Legisla ture itself." It is in this point of view that I have now to examine the subject of our constitutional law. * The provisions of the Constitutions of the several States of the Union, as well as those of the Federal Charter itself, may be divided into two great heads: those which relate to political power and organization; and those which are intended to serve as securities for private rights, and which are specially framed as checks on legislative action. Of the constitutional provis *Marshall's Life of Washington, vol. ii, and Rhode Island, whose systems had ever p. 371. He makes an exception as to the been in a high degree democratic." novelty of the idea, in favor of "Connecticut ions which distribute, arrange, and determine political power, this work is not intended to treat. It is confined to the consideration of those clauses which, for the purpose of protecting private and personal rights, are inserted as limitations upon legislative action. This great head of Constitutional Law is peculiar to American jurisprudence.* It is full of importance to every citizen of the Republic; to the lawyer it is a matter of commanding interest; nor will it ever be possible to understand the character or to write the history of our people, without a complete knowledge of this fertile and complex subject.+ It is not possible that the eminently sagacious men who framed our systems of administration supposed that they would remain forever inviolate; and it is one of the most curious circumstances connected with their formation, that in laying down these barriers against legislative invasions of private right they wholly omitted to provide any positive guaranty or specific protection for them. No sanction or penalty is attached. A prohibition or command not to do certain things is laid on the * I have already (ante, p. 181) had occasion to notice what are called the principles of the English Constitution, and have stated the fact that they do not in any wise interfere with the theoretical supremacy of the British Parliament. Mr. Justice Story has said, According to the theory of the British Constitution, their Parliament is omnipotent. To annul corporate rights might give a shock to public opinion which that government has chosen to avoid; but its power is not questioned." Dartmouth College v. Woodward, 4 Wheat. 518. "The absolute power of the Legislature," says Mr. Hallam, speaking of the resumption of the Irish grants in 1699, "in strictness is as arbitrary in England as in Persia."—Hallam's Const. Hist. vol. iii, p. 193, cl. xv. In regard to Canada, I may notice that an act was passed in 1840, entitled an act to re-unite the provinces of Upper and Lower Canada, and for the government of Canada, 23d July, 1840-3 and 4 Vict. c. xxxv -which operates as a sort of Constitution for the united provinces. The act declares that from and after the re-union of the two provinces, there shall be in the province a Legislative Council and Assembly, and that within the province Her Majesty shall have power, by and with the advice and consent of the Council and Assembly, to make laws for the province-such laws not being repugnant to this act, or such parts of an act of the 31 Geo. III as are not repealed, or to any act of Parliament made or to be made and not hereby repealed, which does or shall by express enactment or by necessary intendment extend to the provinces of Upper and Lower Canada, or to either of them, or to the province of Canada. The act, however, mainly relates to the arrangement and distribution of political power, including the subject of the church, taxation, and the judiciary, and does not seem to contain, except incidentally, any such guaranties of private rights as are to be found in our State Constitutions. It is interesting, however, as containing the germ of the great principle of Constitutional limitation upon legislative power. The term Constitution, like many others in our law, appears to claim a Latin original, and to have been primarily used for the will of the sovereign declaring, decreeing, and expounding the law. "Quodcumque, igitur, Imperator per epistolam et subscriptionem statuit, vel cognoscens decrevit, vel de plano interlocutus est, vel edicto præcepit, legem esse constat. Hæc sunt quas vulgo Constitutiones appellamus."Dig. de Constitutionibus Principum, l. 1, § 1; Vicat. Vocab. Utriumq. Juris, in voc. |