was not repealed by implication, as the new clause referred only to future laws. * (a)

The Supreme Court of Louisiana has very discreetly ex pressed its unwillingness to decide a question as to the unconstitutionality of the law of another State, when the question was still open in the State which passed the law, and the case could be decided on other grounds. †

In regard to the subject of strict and liberal construction, considerations analogous to those which we have discussed under this head as to the interpretation of statutes present themselves, in regard to the interpretation of Constitutions. Where a constitutional provision is of doubtful import, it is frequently susceptible of two interpretations, one the more restricted or severe, and the other more enlarged or equitable. Questions of this kind have presented themselves in the history of many if not all the individual States; but we are more familiar with them in regard to the Federal Constitution. So in regard to the Bank of the United States, it was contended by the advocates of an enlarged or equitable construction, that the clause giving Congress power to make all laws necessary and proper to carry into execution the powers specifically granted, conferred on that body the power to create the institution; while, on the other hand, the advocates of a stricter interpretation, insisted that this general clause could only be used to enlarge powers already expressly given, and could not be construed to give a new and distinct head of authority. So again, the advocates of a protective tariff have found the congressional authority in the clause giving power to regulate commerce; while the friends of free trade have insisted upon a stricter construction, and asserted that the authority to regulate commerce could not be so exerted as to protect manufactures.

These questions have given rise to two great schools of construction the topics which they involve are of perpetual and vital interest; but they approach so near the demesnes of poli

*Cass v. Dillon, 22 Ohio, 607. But see Mr. J. Ramsay's able dissenting opinion.

Shelden v. Miller, 9 La. Ann. R. 187.

(a) That the State Constitutions remained unaffected by secession, and until legally changed, see Scruggs v. Mayor, 45 Ala. 220.

tics, and are so much influenced by the organization and shape of parties, that they are out of place here. Still, some general considerations are too apparent to be overlooked. An arbitrary or equitable power over acts of ordinary legislation has been resisted on the ground "that the Legislature is ever at hand," as it has been said, to explain its meaning. This consideration. in favor of a restricted interpretation of statutory enactments, has less weight in regard to constitutional law. There are, as a general rule, no regular or frequent convocations of the people to revise or consider the fundamental law; and in regard to the Constitution of the United States, any serious amendment, requiring as it would the concurrence of two-thirds of the Legis latures of all the States, can scarcely be thought within the regions of hope or probability; so that it is apparent that the arguments of hardship, irregularity, injustice, and inconvenience, will address themselves to the judiciary in constitutional cases with more force than in regard to ordinary legislative acts, just in proportion as it is more difficult to revise a Constitution or to escape its power, than to amend or to evade a statute. Another consideration will impress itself still more forcibly on the minds of those who are called to consider questions connected with the interpretation of constitutional law. Statutes can and do enter into the details of our daily transactions; they can and do prescribe minute directions for the control of those af fected by them. Constitutions, on the other hand, from the nature and necessity of the case, in many instances go little beyond the mere enunciation of general principles; and it is impossible, and would lead to endless absurdity, to endeavor to apply to a declaration of principles the same rules of construction that are proper in regard to an enactment of details. In regard to a statute, the general duty of the judge is that of a subordinate power, to ascertain and to obey the will of a superior; in regard to a Constitution, his functions are those of a co-ordinate authority, to ascertain the spirit of the fundamental law, and so to carry it out as to avoid a sacrifice of those inter. ests which it is designed to protect. No absolute rules of interpretation in such a matter can be framed. Still, I cannot

refrain from saying, as a general rule, while a strict adherence to the mere letter of a written Constitution would render our system practically intolerable, that, on the contrary, a loose and careless mode of intepretation is attended by the most serious dangers. It puts all our institutions in the power of the judiciary; it abolishes all restraints on legislation, and tends directly and inevitably to alter the very nature of our Government.* (a)

Having thus considered the general principles to be applied to the construction of constitutional limitations upon legis lative power, we approach the examination of particular pro

The analogies of history often throw light upon the annals of remote and obscure periods; and our schools of strict and liberal construction may tend to render intelligible the sects or schools of Roman law. "The freedom of Labeo was enslaved by the rigor of his own conclusions. He decided according to the letter of the law the same questions which his indulgent competitor (Capito) resolved with a latitude of equity more suitable to the common sense and feelings of

mankind." See Gibbon, ch. xliv. Our Labeos and Capitos, our Sabinians and our Proculeans, might easily be named. Indeed, the analogies between the whole body of Roman jurisprudence and the English, are most curious and striking. The division into two great bodies, of strict and equitable law; the formulæ by which questions of fact were distinguished from questions of law; the severe regard to mere symbolical forms, are as ap parent in the one system as the other.

(a) Implied Restrictions in the Constitution.-Where the Constitution reserves to the defendant in criminal trials before justices of the peace the right of appeal, this does not imply any restriction upon the power of the Legislature to give a right of appeal to the prosecution. State v. Tait, 22 Iowa, 141. And when the Constitution gives to resident foreigners the same property rights which citizens have, this does not prevent the Legislature from giving equal rights to non-resident "foreigners. Purczell v. Smith, 21 Iowa, 540. A Constitutional provision that the Board of Supervisors may provide for laying out highways, etc., does not prevent the Legislature from conferring concurrent authority upon other officials. People v. Highway Comm'rs, 15 Mich. 347; People v. Ingham Co. 20 Mich. 95; but the powers of a Board of Education were held exclusive in Dist. Township &c. v. Dubuque, 7 Clarke (Ia.) 262. "The State may continue to collect all specific taxes accruing under existing laws. The Legislature may provide for the collection of specific taxes from banking, railroad, plankroad, and other corporations hereafter created;" held no implied prohibition against imposing such taxes upon unincorporated companies. Walcott v. People, 17 Mich. 68. An act for registration of voters was held void as conflicting with implied prohibitions of the Constitution, in Page v. Allen, 58 Penn. St 338; but see Patterson v. Barlow, 60 Penn. St. 54.

The schedule or ordinance appended to the Constitution, and submitted to the people with it and accepted by them, forms a part of the Constitution, Stewart v. Crosby, 15 Tex. 546; but a provision in it found among other temporary provisions, is to be presumed temporary. State v. Taylor, 15 Ohio, N. S. 137.

When the Constitution Executes itself.-As to what provisions require legislation to make them operative, see Goldman v. Clark, 1 Nev. 617; People v. Highway Comm'rs, 15 Mich. 347.

visions; and of these, as I have said, there is none more important than that which declares that

Private Property shall not be Taken for Public Purposes without Compensation.-In considering the subject of constitutional checks as imposed in this country on legislative power, we find two limitations of paramount importance; the one guaranteeing the inviolability of private property, the other protecting the obligation of contracts; the one intended to guard present ownership and enjoyment, the other to secure future transactions, or rights of property not yet converted into possession. These provisions are both to be found in the Constitution of the United States, (a) and the latter in some of the State Constitutions; but as the one in regard to private property is to be found, with the exception of New Hampshire and South Carolina,* in all the State Constitutions, I shall consider it under our present head, reserving the clause in regard to the obligation of contracts till we come to the subject of the Constitution of the United States.

In discussing the constitutional guaranty of private prop erty, I shall first consider the precise nature of the legislative power over private property, and to what branch or branches

*The Constitution of New Hampshire is is not involved. Since the decision of this silent on the subject of compensation; but it case, however, the precise question seems to has been held that the duty to provide re- have been considered and determined. It muneration is none the less imperative. Bris- was held in a case growing out of a right to a tol v. New Chester, 3 N. H. R. 535. In South ferry, that the Legislature has the constituCarolina there is no constitutional provision tional right to deprive an individual of his whatever; and it has been there held that property for great national purposes. Stark the legislative power over private property v. M'Gowan, I Nott and M'Cord, 387. is supreme and absolute. The State v. Dawson, 3 Hill, 100. This was an indictment for obstructing road commissioners in cutting down timber to repair a road; the act giving them general power to take so much timber, earth, or rock as should be necessary to keep roads in repair. The case was chiefly put on the question whether the act infringed the constitutional guaranty of the "law of the land," which we shall hereafter consider. It was upheld chiefly on the ground of long usage and acquiescence; and Evans, J., delivering the prevailing opinion of the court, says expressly, that the general power of the Legislature to appropriate private property,

On the other hand, in New Hampshire the abstract right to compensation, independent of all constitutional provision, has been declared. "The power of the Legislature is limited, undoubtedly, in its nature, by the public exigencies; but it is a power recog nized by the Constitution. There is no doubt that when this power is exercised, a just compensation is to be made. The Constitutions of some of the States expressly declare that such compensation shall be made; and natural justice speaks on this point when a Constitution is silent." Bristol v. New Chester, 3 N. H. 535.

(a) The provision in the Constitution of the U. S. in regard to taking private property is directed only to legislation and acts of the United States. Withers v. Buckley, 20 How. 84.

of the sovereign power of the State the restricting clause is intended to apply; secondly, consider, under the head of delega tion of the power, by whom it can be exercised; thirdly, examine the question, what is a taking of private property within the meaning of the clause; and lastly, speak of the rules which determine how and when compensation must be made. Before entering, however, into this examination, it is proper to give the leading provisions of the different State Constitutions on the subject, in order the more fully and accurately to understand the precise nature of the question as it presents itself in the several States. (a)

(a) Constitutional Provisions.—The following are all the provisions respecting the exercise of the right of eminent domain contained in the existing State Constitutions: Private property shall not be taken or applied for public use unless just compensation be made therefor; nor shall private property be taken for private use, or for the use of corporations other than municipal, without the consent of the owner: Provided however, that laws may be made securing to persons or corporations the right of way over the lands of either persons or corporations, and, for works of internal improvement, the right to establish depots, stations, and turnouts, but just compensation shall in all cases be first made to the owner.-Alabama, i, 25. No right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money or secured by a deposit of money to the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury of twelve men in a court of record as shall be prescribed by law.-1bid. xiii, 5. Private property shall not be taken for public use without just compensation.—Arkansas, i, 15; Rhode Island, i, 16. [Same] nor unless the public exigencies require it.-Maine, i, 21. [Same] first secured or paid.—Minnesota, i, 13. Nor shall private property be taken for public use without just compensation.—California, i, 8; Florida, Dec. of Rights, 9; New York, i, 6. The property of no person shall be taken for public use, without just compensation therefor.-Connecticut, i, 11; Michigan, xviii, 14; Nebraska, i, 13; Wisconsin, i, 13. Nor shall any man's property be taken or applied to public use without the consent of his representatives, and without compensation being made-Delaware, i, 8. [Same] and without just compensation being previously made to him.—Kentucky, xiii, 14. [Same as last except "previously" is omitted.]-Pennsylvania, ix, 10. Private ways may be granted upon just compensation being paid by the applicant.-Georgia, i, 20. Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. The fee of land taken for railroad tracks without consent of the owners thereof, shall remain in such owners, subject to the use for which it is taken.-Illinois, ii, 13. The exercise of the power and the right of eminent domain shall never be so construed as to prevent the taking, by the General Assembly, of the property and franchises of incorporated companies already organized, and subjecting them to the public necessity the same as individuals. The right of trial by jury shall be held inviolate in all trials of claims for compensation, when, in