like college located in a different locality. It is conferring a privilege on one and withholding it from the other. These are in fact. mere special privileges acquired under legislative grant for the advancement of private or local interests that in no manner violates the rights of others, and neither grant can be said to have been made in consideration of public service.

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The motive prompting the legislature to make the grant cannot be inquired into by this court. " Plenary power in the legislature for all purposes of civil government is the rule" with uncontrolled authority in making the laws within the limits of the constitution. This court has nothing to do with the moral question involved. If it had, the case could be easily disposed of. "The legislative makes, the executive executes, and the judiciary construes the law." Cooley's Constitutional Limitations.

As an additional argument in favor of the constitutionality of the measure is the practical construction placed upon this section of the Bill of Rights by the constant legislation of the state conferring special privileges since the formation of the state constitution. "When such is the case," says Cooley, "a strong presumption exists that the construction rightly interprets the intention," and besides, says the same author, where the question of construction, after all the investigation given the subject, remains a matter of doubt it is clear that the court should abstain from deciding it unconstitutional.

The appellee, Whips, was involved in debt, and the legislature, upon his application, granted him the privilege of selling his property by lottery, at a single drawing, the proceeds to be applied to the payment of his indebtedness. The extent of the grant and the power conferred by it are not questioned. The Commonwealth, after making the grant, has indicted him from proceeding to act under it, and is insisting that he shall be fined in a sum not exceeding $10,000 for promoting a lottery. No other party is complaining, and the citizen, by reason of the grant, deprived of no right he had when the grant was made. Can this penalty be enforced, and is the act unconstitutional? Both questions must be answered in the negative, and the judgment below is therefore affirmed.

Judges HARGIS and HINES dissenting.

A general law of the state of Kentucky forbad the sale of lottery tickets, and punished those who engaged in holding a VOL. XXXI.-57.

lottery. In the face of this general law the legislature authorized Whips to dispose of his property by lottery. What

were the motives that induced the legislature to grant this special privilege does not appear from the opinion, unless it was to enable him to pay his debts.

That clause of the Constitution forbidding the granting of special privileges, it is said, "was intended to prevent the exercise of some public function or an exclusive privilege affecting the interests and rights of the public generally, when not in consideration of public service." If such is not the construction to be placed upon that clause, then the people would confer upon local tribunals power to legislate with reference to local or private interests. When it is necessary to surmise what the sovereign people would do were a certain construction placed upon a provision of the Constitution, in order to support the constitutionality of a statute, we certainly are compelled to receive the opinion of the court resorting to such reasoning and methods with much hesitancy. And were it in any other state, where lotteries are not tolerated, the decision in a similar case would certainly have been very different. Certainly the reasoning of the opinion is very strained, and while it is the duty of the courts to uphold all legislative enactments, and in case of doubt to yield to the legislative construction of the Constitution, yet here certainly was an opportunity for the exercise of that inaction dependence of thought and

which the courts have always been free to exercise, and, when the opportunity afforded, to decide, without fear of crit icism.

No question of police power arises as in the Slaughter-House Cases; that is out of the question. The statute was applicable to no class of individuals, but was confined to one individual. Perhaps he alone would be estopped to deny its validity, either from having petitioned the legislature for its passage, or else from having accepted its provisions after its passage: Ferguson v. Landram, 5 Bush 230; Motz v. Detroit, 18 Mich. 495;

Beall v. Beall, 8 Ga. 210. Neither is he selected by the legislature and subjected to any peculiar rules, or any special obligations or burdens imposed upon him, nor is it enacted that he shall dispose of his property in any certain way, but he is left free and untrammelled to accept or reject the provisions of the statute. Such an act would be unconstitutional: Lin Sing v. Washburn, 20 Cal. 534. In Holden v. James, 11 Mass. 396, cited in the principal case, it was held that the legislature had no power to suspend the operation of a general law, in favor of an individual; and it was said that the exercise of a power to enact that an individual should not be held to answer to any suit, except for a period of two years, was an exercise of no greater power than to enact that he should be held to answer such suit for four years. The court expressly put its decision upon the ground that the act conferred special powers, and was therefore unconstitutional. Bearing in mind that the Supreme Court of the United States has decided that there is no vested right in a law to im prison a debtor (Mason v. Haile, 12 Wheat. 370), we can easily agree with the Supreme Court of Vermont that a special act of the legislature discharging a judgment-debtor from imprisonment on an execution is void: Kendall v. Dodge, 3 Vt. 360; Lyman v. Mower, 2 Id. 517. And the court rest their decision upon the principle that an act conferring upon any one citizen privileges to the prejudice of another, and which is not applicable to others in like circumstances, in the language of the learned commentators upon the English law, does not enter into the idea of municipal law, having no relation to the community in general" Ward v. Barnard, 1 Aik. 121. Accordingly it was held that a departure from the liberties of the prison, under color of such an act, was an escape Id. See Starr v. Robinson, 1 Chip. 257.

Undoubtedly the law is that the legis

one

its funds. The state saw fit in this way to raise funds to keep them in repair, a duty she owed to the public. The property was that of the state, so long as the United States did not interfere-so said the court. It will thus be seen that the state was simply renting her own property, nothing more. Commonwealth v. Jackson, 5 Bush 680, was also cited. That was a suit against the state, authorized by a special act, in order to ascertain Jackson's damages caused by a wrongful act of the state's Board of Internal Improvement. No constitutional question was discussed analogous to the principal discussed in the case. The act was the state simply consenting to be sued in order to do equity to one of her citizens. Patterson v. Trabue, 3 J. J. Marshall 598, was a grant of land belonging to the state, to an individual, upon condition that he would expend money in the pursuit of salt water. This act was passsed in 1820. The court very properly held that the act was constitutional, although it gave the grantee absolute right to appropriate, of the public land, 5000 acres situated within five miles of the place where he was boring for salt water. This was simply a grant of the state's own lands and in no wise affected the public. No public law of the state was annulled; no question of immunity from crime arose. Kibby v. Chitwood's Adm'r., 4 T. B. Mon. 91, was where a guardian was authorized to sell his ward's real estate to pay the ward's ancestor's debt. The land was subject to the debts and could be sold by the administrator. The court looked upon the statute as providing a shorter and more direct method of paying the debts-a question of expediency-and that it made but little difference how the land was sold so the proceeds of the sale were applied to the extinguishment of the debts. It can hardly be deemed an authority.

In a number of decisions cited in this

note no constitutional provisions served as a guide to the courts; but the opinions of the courts were founded upon those fundamental principles recognised by jurists as essential to the validity of laws enacted in those countries receiving the common law as the basis of their legislation that the laws must be general and not the decrees of the enacting body applicable only to an individual; "that all freemen, when they form a social compact, are equal, and that no man or set of men are entitled to exclusive separate public emoluments or privileges from the community, but in consideration of public services."

It is said in the principal case that no citizen of the state is in court complaining of the action of the legislature; that no citizen of the state is complaining that the legislature had invaded his special privileges as a citizen of the Commonwealth. The question is pertinent, "How was it possible for any one citizen to appear in such an action and complain of the action of the legislature ?" Are we to understand the court to mean by such an expression that if it were a civil suit, brought by a citizen of the Commonwealth against Whips, for the recovery of property or maintaining of some right necessarily connected with his lottery scheme, that greater deference would be paid to his complaint and the action of the legislature more closely scrutinized than was done in the principal case? If so, then when the private citizen sues the act may be declared unconstitutional, and when the Commonwealth sues it may be constitutional. A legal absurdity. And it may be again pertinently asked, "Was not the entire body of the people of the Commonwealth present in court by their duly constituted attorney complaining of the action of the legislature ?" They certainly were, and as great, nay greater, deference should be paid to their suit than to the suit of an individual.

Nor is there any sound reasoning in

the question of estoppel. An unconstitutional enactment of the legislature is not law; it is of no more force than if it never had been passed. Its passage is not the act of the legislature as an official enactment. No one is bound by it, nor is any one bound to notice it, The state is not estopped because her officers recognised it as valid, and rights of her citizens are acquired under it and through the acts of her officers: Reid v. State ex rel. Thompson, 74 Ind. 252.

We cannot regard this special act in any other light than a legislative license to violate the general law of the state. All the citizens of the state are forbidden to establish and run a lottery, but the legislature has seen fit to grant the privilege to this individual, Whips. He, above all others, enjoys a special favor. Suppose all the citizens of the state were

permitted to establish and run a lottery except Whips. Would it be contended for a moment that the law was constitutional as to him? In that event the court would regard the entire act unconstitutional, or else the proviso forbidding Whips to engage in lottery schemes. The legislatures of the respective states are as supreme as Parliament in the highest pitch of its power, subject only to the Constitution of the United States and laws made in pursuance thereof, public treaties, and their own state constitutions; yet we very much doubt if even an attempt, previous to this one, has ever been made to exempt a citizen from the provision of the general criminal law of the state.

W. W. THORNTON.

Indianapolis, Ind.

Supreme Court of Pennsylvania.

BALTIMORE AND OHIO RAILROAD CO. v. SCHWINDLING.

Where an infant is upon the platform of a railroad station, not as a passenger or upon any business connected with the railroad company, the company owes him no duty. Hence, if he be injured by a passing train he cannot recover against the company for his injuries upon the theory that they have failed to discharge towards him a legal duty and hence have been guilty of negligence.

Semble, that in such case the company would only be liable for a wanton or intentional injury.

ERROR to the Common Pleas No. 1, of Allegheny county.

Case by William Schwindling, by his next friend Peter Schwindling, against the Baltimore and Ohio Railroad Co., to recover damages for an injury occasioned by the negligence of the company defendant.

On the trial, before COLLIER, J., the following facts appeared: On September 5th 1880, the plaintiff, a boy about five years of age, was run over by a train of cars of defendant at Osceola. On that afternoon, the plaintiff, who lived with his parents in one of a row of houses, built close along the line of the road, started to follow his older brothers, who had been sent by their mother to the store