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5 Bosw. 341. Bank bills held at the time of the
The case of Carty v. Shields, 5 Week. Not. Cas. 241, decided by the Supreme Court of Pennsylvania on the 18th February last, illustrates the principle that an existing right of way cannot be enlarged or altered by uses not contemplated by the parties at the time of its creation. One Carty was the owner of two lots fronting upon a railroad, the larger of which he used as a coal yard. He connected the tracks of the railroad with his coal yard by a side track passing over the smaller lot, and over this side track he carried on the business of a coal dealer. He sold the smaller lot to one Shields without any terms as to way or incumbrances. After the sale Carty established a lime business on the larger lot, in addition to the coal business, and
age, and was therefore void as to importers, was for that reason unconstitutional and void as to all other persons. The court held that it was not so void, saying that if a law which is constitutional under certain limitations exceeds those limitations, it may still be operative within its legitimate sphere and void only for the excess. See, as holding a similar doctrine, Commonwealth v. Kimball, 24 Pick. 359, where Chief Justice Shaw says, in respect of a similar statute of Massachusetts: "Supposing the law could be construed to be repugnant to the Constitution of the United States in so far as it prohibited the sale of imported spirits by the importer in the original packages, it would be void thus far and no farther, and in all other respects conforming to the acknowledged power of the State government, it would be in full force." The general principle is that where a part of a statute is unconstitutional that fact does not authorize the courts to declare the remainder void also unless all the provisions are connected in subject-matter depending on each other, operating together for the same purpose, or otherwise so connected together in
used the siding for the passage of cars employed in meaning that it cannot be presumed the legisla
both these trades. Shields threatening to tear up
ture would have passed the one without the other.
R. R. v. State, 29 Ala. 573; Santo v. State, 2 Iowa,
sumed to have accepted it burdened with a larger
In Jerome v. Smith, 48 Vt. 230, plaintiff bought a ticket over defendant's railroad with checks attached. While riding over the route a conductor detached and retained one of the checks and gave plaintiff in lieu thereof a conductor's check which was a full equivalent for the check retained. This Before plaintiff arrived at the check plaintiff lost. point in his journey to which the conductor's check entitled him to ride, another conductor took the train. He demanded of plaintiff the production of the conductor's check or payment of fare, and refused to let him ride on the passage ticket held by him. Plaintiff being unable to find the conductor's check and refusing to pay fare, he was ejected from the train. The court held that he was lawfully ejected. This decision seems to be supported by a number of authorities. Among the most nearly in point are Hamilton v. N. Y. C. R. R. Co., 51 N. Y. 100; Standish v. Narragansett Steamship Co., 111 Mass. 512; Townsend v. N. Y. C. R. R. Co., 56 N. In the case of State v. Amery, decided by the Y. 295; Duke v. G. W. Ry. Co., 14 U. C. C. P. 369. Supreme Court of Rhode Island, the question was See, however, Pittsburgh R. R. Co. v. Hennigh, 39 whether a statute of that State which prohibited Ind. 509; Palmer v. Charlotte R. R. Co., 3 S. C. (N. S.), 580; Marony v. Old Col. R. R. Co., 106 Mass. the sale of intoxicating liquors, and makes no excep153; Hamilton v. Third Ave. R. R. Co., 53 N. Y tion in favor of importers selling in the original pack-25; Moore v. Fitchburg R. R. Co., 4 Gray, 465.
SOME RECENT DECISIONS -TWENTY-SEC- Cemetery Association v. Commonwealth, 81 Penn. St
OND AMERICAN REPORTS.
235, it is held that a by-law of a cemetery association prohibiting the burial of negroes therein is void as to persons who were lot owners when the by-laws were passed. We have known of cemeteries prohibiting the interment of dogs, but this is the first instance of the extension of the prohibition to negroes that has come to our notice. Judge Gordon sits down on the cemetery folks in this lively manner: "In a sound code of ethics this prejudice never had a respectable standing, for it was but the child of an abnormal servile system that was entitled to no man's respect outside of the country and laws which maintained it. But at this time, when this prejudice is under the ban of recent constitutional and legal provisions, expressly designed for its suppression and extinction, it is scarcely to be expected that we can be induced to indorse its respectability, or to encourage it to linger on ger around the halls of justice." Judge Sharswood said, "I dissent from this judgment and opin
N the subject of life insurance we find two cases directly in conflict. In Guardian Mutual Life Insurance Company v. Hogan, 80 Ill. 35, it is held that the relation of father and son does not give the son an insurable interest in the life of the father, unless the son has a well-founded or reasonable ex
pectation of some pecuniary advantage to be derived from the continuance of the life of the father. On the other hand, in Reserve Mutual Insurance Company v. Kane, 81 Penn. St. 154, it is held that the son has an insurable interest in the life of his father, especially where the son is liable under the poor law for the support of the father. We vote with Illinois on the point. The matter being one simply of pecuniary interest, no person has an insurable interest in the life of another unless it is a pecuniary advantage to him to have the other live. In the Pennsylvania case it was for the son's interest to have the insured die.
Dogs and "niggers" make a good deal of trouble in this volume. In Heisrodt v. Hackett, 34 Mich. 283, a statute authorized "any person" to kill a dog going at large, and not licensed or collared. In an action to recover for the killing of plaintiff's dog by defendant's dog, held no defense that plaintiff's dog was not licensed and collared, as defendant's dog was not a "person." We know the converse of this to be urged once. Sidney Smith, when solicited by Landseer, the famous animal painter, to sit to him for his portrait, exclaimed: Is thy servant a dog, that he shall do this thing?" In Rider v. White, 65 N. Y. 54, it is laid down that one injured by the bite of a dog may recover damages of the owner on proof that the dog was vicious, and that the owner knew it, without showing that it had ever bitten any one. So much for dogs. Now for the other "animals " mentioned. Down in North Carolina the law-makers have such a delicate sense of the fitness of things that they regulate marriage somewhat by complexion, and pronounce marriages between negroes and white persons unlawful. (Prob-pearance and conduct. A good deal of the opinion ably they will not suffer Othello to be acted in their was omitted, too. An interesting opinion, howtheatres.) So in State v. Ross, 76 N. C. 242, the ever, on a very important subject. The court made court had a good deal of self-command to adjudge one mysterious observation, namely: In McKee v. that where a white woman left the State to be marNelson, the court says: "There are a thousand ried, in another State, to a negro resident thereof, nameless things, indicating the existence and degree but not intending to return, but was so married and of the tender passion, which language cannot afterward did return, the marriage was lawful in specify; precisely what Judge Bellows, in Whittier North Carolina. But, in State v. Kennedy, 76 N. C. v. Franklin, said of the frightened mental condition 251, where a negro man and a white woman left the and sulky disposition of a horse." We did not State to be married, with intent to evade the law know that the equine race are peculiarly subject to and to return, and were married in another State the "tender passion," but it seems to be judicially where such marriages were lawful, and did return, | affirmed. Again, the court say: "Evidence of this the marriage was held invalid in North Carolina. character was received a few weeks ago, in the trial But not only do live "niggers" make the courts of Magoon, for murder, in Rockingham county, trouble, but dead ones do also. In Mount Moriah without the intimation of a doubt concerning its
"Of two who equally deserve law's frown, One gets the cross, the other takes the crown. New Hampshire still continues the banner State for long opinions. Here in Hardy v. Merrill, 56 N. H., we have twenty-two pages to demonstrate that non-professional witnesses may testify to their opinion of a testator's sanity, founding their opinion upon their knowledge and observation of his ap
We don't often run across an elegant classical quotation in a judicial opinion, but C. J. Appleton makes one in Meader v. White, 66 Me. 90. It is here held that an action cannot be maintained to
recover money loaned on the Lord's day. The court regretting the statute, and pointing out the anomaly that while both parties are equally guilty, one is punished and the other is rewarded, quote from Juvenal.
"Multi Committunt eadem, diverso crimina fato; Ille crucem pretium sceleris tulit, hic diadema."
which, if we may be allowed to serve as interpreter, may be thus rendered into the vernacular.
competency; and the very able and vigilant counsel, upon both sides, in that cause, knew what they were about, and omitted nothing of their duty to the prisoners or to the public." Assuming that the counsel really did "know what they were about," it seems a rather curious reason for judging of the competency of evidence. Then the court wax quite lively: "But one witness says, 'he did not appear as usual; he did not appear natural.' Now, let us imagine a scene that might very probably be exhibited where the Massachusetts rule prevails. Very well,' says a learned barrister, 'very well, Mr. Witness, you may say that, that is quite regular, that is your opinion. Now tell us in what respect he did not appear usual' or 'natural.' 'Well, I can't describe it, but I should call it wandering, delirious; he was incoherent in his talk.' 'Very well, Mr. Witness, you acquit yourself like a sensible man. Now tell the jury, whether, in your opinion, he was then of sound mind.' 'I object!' thunders the learned barrister on the other side. I object!' thunders the opposing junior, counsel know better. It is an insult and outrage to put such a question.' 'I object!' 'I object!' echoes from every side. The court-room is in an uproar. The judge has to exert himself to keep the peace. The lawyers on each side are all talking at the same time in a very delirious and incoherent manner. The witness is confounded. The jury are confounded. Everybody is confounded," etc. So are we. Are we reading a grave law-opinion or one of Charles Reade's court scenes? Sometimes the court in the "Granite State" indulges in a little pardonable sarcasm on the rhetoric of the attorneys. Thus, in Simpson v. City Savings Bank, 56 N. H. 466, the court observe: "In the plaintiff's brief it is suggested that 'this law of 1874 touches the heart blood of this plaintiff,'" etc.; "but now, if he suffer in the matter of costs, his tribulation will be caused not so much by the law of 1874, as by his own persistent disregard of the law." Truly, it was a great mistake on the part of the New Hampshire legislature to endeavor to compel the judges of that State to write shorter opinions.
Several cases in Wisconsin are of interest. Hoyt v. Hudson, 41 Wis. 105, holds that the burden of proving contributory negligence is on the defendant, and that the plaintiff is not bound to show an absence of negligence on his part; a holding which strikes us as more reasonable than our own rule. In Hart v. Stickney, 41 Wis. 630, a note, bearing interest payable annually, and transferred after maturity of interest and non-payment of interest, was held open to all defenses, even in the hands of an innocent nolder; which is consistent with Newell v. Gregg, 51 Barb. 263. In State ex rel. Drake v. Doyle, a statute was held constitutional, which required foreign insurance companies, as a condition precedent to being licensed to do business in that State, to agree
not to remove into the Federal courts any actions brought against them in the State courts. The U. S. District Court of the Western District of Wisconsin had previously held the act void.
The case of Hayes v. Livingston, 34 Mich. 384, is very interesting and will probably give rise to considerable discussion, although decided by a very able court. The decision is in effect that under the statute of frauds it is not permissible that an estoppel in pais should work a transfer of the legal title to land. The court concede that the rule is different in respect to personal property. They concede, too, that in regard even to real estate the rule is different in Maine, Georgia, Vermont, Pennsylvania, Connecticut and New York. They seem to concede too that the injured party might find relief in equity, and distinguish the New York doctrine on the ground of the abolition of the distinction here between the legal and the equitable tribunal. It may be that the inability of the courts of law to take cognizance of the facts constituting the estoppel may support the decision in this case; but we cannot quite clearly see any other reason for it. We cannot at this moment assent to the idea of the court that it would be impolitic to defeat the statute of frauds "by a technicality so shadowy and unsubstantial." Still we offer these views with diffidence, and shall endeavor hereafter to examine the matter more thoroughly.
This volume has many valuable notes.
MURRAY V. CITY COUNCIL OF CHARLESTON, JENKINS V. CITY COUNCIL OF CHARLESTON. Under the provisions of its charter, authorizing it to impose taxes upon property within its limits, the city of Charleston, S. C., by ordinance imposed a tax of two per cent upon all property therein, and directed that the tax assessed upon the city stock, which represented the indebtedness of the city, should be deducted by the city treasurer out of the interest thereon. Held (reversing the decision of court below, 5 S. C. 593; 22 Am. Rep.14) that the ordinance as to such city stock was void, as in conflict with the provision of the Federal Constitution forbidding State legislation impairing the obligation of
No municipality of a State can, by its own ordinances, under the guise of taxation, relieve itself from performing to the letter all it has expressly promised to its creditors.
N error to the Supreme Court of the State of South Carolina. The facts appear in the opinion.
Mr. Justice STRONG delivered the opinion of the court.
The plaintiff, a resident of Bonn, in Germany, was, prior to the first day of January, A. D. 1870, and he still is, the holder and owner of $35,262.35 of what is called stock of the city of Charleston. The stock is in reality debt of the city, the evidence of which is certificates, whereby the city promises to pay to the owners thereof the sums of money therein mentioned, together with six per cent interest, payable quarterly. One-third of the interest due the plaintiff on the first
days of April, July, and October, 1870, and January and July, 1871, having been retained by the city, this suit was brought to recover the sums so retained, and the answer to the complaint admitted the retention charged, but attempted to justify it under city ordinances of March 20, 1870, and March 21, 1871. By these ordinances, set out in full in the answer, the city appraiser was directed to assess a tax of two cents upon the dollar of the value of all real and personal property in the city of Charleston, for the purpose of meeting the expenses of the city government, and the third section of each ordinance declared that the taxes assessed on city stock should be retained by the city treasurer out of the interest thereon, when the same is due and payable. On these pleadings the case was submitted to the court for trial without a jury, and the court made a special finding of facts, substantially as set forth in the complaint and averred in the answer, upon which judgment was given for the defendant. This judgment was subsequently affirmed by the Supreme Court, and the record is now before us, brought here by writ of error. It is objected that we have no jurisdiction of the case, because, it is said, no Federal question was raised of record or decided in the Court of Common Pleas where the suit was commenced.
The city of Charleston was incorporated in 1783, before the adoption of the Federal Constitution. Among other powers conferred upon the city councils was one to make such assessments on the inhabitants of Charleston, or those who hold taxable property within the same, for the safety, convenience, benefit, and advantage of the city, as shall appear to them expedient." It was under this authority, repeated in subsequent legislation, the city ordinances of 1870 and 1871 were made. It may well be doubted whether the acts of the legislature were intended to empower the city to tax for its own benefit the debts it might owe to its creditors, especially to its non-resident creditors. Debts are not property. A non-resident creditor cannot be said to be, in virtue of a debt due to him, a holder of property within the city, and the city councils were authorized to make assessments only upon the inhabitants of Charleston, or those holding taxable property within the same. To that extent the Supreme Court of the State has decided the city has power to assess for taxation. That decision we have no authority to review. But neither the charter itself nor any subsequent acts of legislation directly or expressly interfered with any debts due by the city or gave to the city any power over them. They simply gave limited legislative power to the city councils. It was not until the ordinances were passed under supposed authority of the legislative act that their provisions became the law of the State. It was only when the ordinances assessed a tax upon the city debt and required a part of it to be withheld from the creditors, that it became the law of the State that such a withholding could be made. The validity of the authority given by the State, as well as the validity of the ordinances themselves, was necessarily before the Court of Common Pleas when this case was tried, and no judgment could have been given for the defendants without determining that the ordinances were laws of the State, not impairing the obligation of the contracts made by the city with the plaintiff. And when the case was removed into the Supreme Court of the State, that court understood a Federal question to be before it. One of the grounds of the notice of the appeal was "that such a tax is a violation of good faith in the contract of
loan, impairs the obligation of said contract, and is, therefore, unconstitutional and void." It is plain, therefore, that both in the Common Pleas and in the Supreme Court of the State a Federal question was presented by the pleadings and was decided, decided in favor of the State legislation and against a right the plaintiff claims he has under the Constitution of the United States. The city ordinances were in question on the ground of their repugnancy to the inhibition upon the States to make any law impairing the obligation of contracts, and the decision was in favor of their validity. Nothing else was presented for decision, unless it be the question whether the acts of the State legislature authorized the ordinances, and that was ruled affirmatively. The jurisdiction of this court over the judgments of the highest courts of the States is not to be avoided by the mere absence of express reference to some proacknowledged and protected by that instrument are vision of the Federal Constitution. Wherever rights denied or invaded under the shield of State legislation this court is authorized to interfere. The form and mode in which the Federal question is raised in the State court is of minor importance, if, in fact, it was raised and decided. The act of Congress of 1867 gives highest courts of a State in suits "where is drawn in jurisdiction to this court over final judgments in the question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity." Not a word is said respecting the mode in which it shall be made to appear that such a question was presented for decision. In the present case it was necessarily involved, without any formal reference to any clause in the Constitution, and it is difficult to see how any such reference could have been made to appear expressly.
In questions relating to our jurisdiction, undue importance is often attributed to the inquiry whether the pleadings in the State court expressly assert a right under the Federal Constitution. The true test is, not whether the record exhibits an express statement that a Federal question was presented, but whether such a question was decided, and decided adversely to the Federal right. Everywhere in our decisions it has been held that we may review the judg. ments of a State court when the determination or judgment of that court could not have been given without deciding upon a right or authority claimed to exist under the Constitution, laws, or treaties of the United States, and deciding against that right. Very little importance has been attached to the inquiry whether the Federal question was formally raised. In Crowell v. Randall, 10 Peters, 368, it was laid down, after a review of almost all our previous decisions, "that it is not necessary the question should appear on the record to have been raised, and the decision made in direct and positive terms, in ipsissimis verbis, but that it is sufficient if it appears by clear and necessary intendment that the question must have been raised, and must have been decided, in order to have induced the judgment." This case was followed by Armstrong et al. v. Treasurer, 16 Pet. 281, where it was held sufficient to give this court jurisdiction if it appear from the record of the State court that the Federal question was necessarily involved in the decision and that the court could not have given the judgment or decree which they passed without de
ciding it. See, also, Bridge Proprietors v. Hoboken Company, 1 Wall. 116, and Furman v. Nichol, 8 id. 44. That involved in the judgment of the Court of Common Pleas and in that of the Supreme Court of the State was a decision that the city ordinances of Charleston were valid, that they did control the contract of the city with the plaintiff, and that they did not impair its obligations is too plain for argument. The plaintiff complains that the city has not fully performed its contracts according to their terms, and it has paid only four per cent interest instead of six per cent which it promised to pay, and that it has retained two per cent of the interest for its own use. The city admits all this, but attempts to justify its retention of one-third of what it promised to pay by pleading its own ordinances directing its officer to withhold the two per cent of the interest promised whenever it became due and payable according to the stipulations of the contract, calling the amount detained a tax. Of course the question is directly presented whether the ordinances are a justification; whether they can and do relieve the debtor from full compliance with the promise; in other words, whether the ordinances are valid and may lawfully be applied to the contract. The court gave judgment for the defendant, which would have been impossible had it not been held that they have the force of law, notwithstanding the Constitution of the United States, and the Supreme Court affirmed the judgment. Our jurisdiction, therefore, is manifest.
We come, then, to the question whether the ordinauces decided by the court to be valid did impair the obligation of the city's contract with the plaintiff. The solution of this question depends upon a correct understanding of what that obligation was. By the certificates of stock, or city loan, held by the plaintiff, the city assumed to pay to him the sum mentioned in them, and to pay six per cent interest in quarterly payments. The obligation undertaken, therefore, was both to pay the interest at the rate specified, and to pay it to the plaintiff. Such was the contract and such was the whole contract. It contained no reservation or restriction of the duty described. But the city ordinances, if they can have any force, change both the form and effect of the undertaking. They are the language of the promisor. In substance they say to the creditor: "True, our assumption was to pay to you quarterly, a sum of money equal to six per cent per annum on the debt we owe you. Such was our express engagement. But we now lessen our obligation. Instead of paying all the interest to you we retain a part for ourselves, and substitute the part retained for a part of what we expressly promised you." Thus applying the ordinances of the contract it becomes a very different thing from what it was when it was made, and the change is effected by legislation, by ordinances of the city, enacted under asserted authority of laws passed by the legislature. That by such legislation the obligation of the contract is impaired is manifest enough, unless it can be held there was some implied reservation of a right in the creditor to change its terms, a right reserved when the contract was madeunless some power was withheld, not expressed or disclosed, but which entered into and limited the express undertaking. But how that can be-how an express contract can contain an implication, or consist with a reservation directly contrary to the words of the instrument, has never yet been discovered.
It has been strenuously argued on behalf of the de
fendant that the State of South Carolina and the city council of Charleston possessed the power of taxation when the contracts were made; that by the contracts the city did not surrender this power; that, therefore, the contracts were subject to its possible exercise, and that the city ordinances were only an exertion of it. We are told the power of a State to impose taxes upon subjects within its jurisdiction is unlimited (with some few exceptions) and that it extends to every thing that exists by its authority or is introduced by its permission. Hence it is inferred that the contracts of the city of Charleston were made with reference to this power and in subordination to it.
All this may be admitted, but it does not meet the case of the defendaut. We do not question the existence of a State power to levy taxes as claimed, nor the subordination of contracts to it, so far as it is unrestrained by constitutional limitation. But the power is not without limits, and one of its limitations is found in the clause of the Federal Constitution, that no State shall pass a law impairing the obligation of contracts. A change of the expressed stipulations of a contract, or a relief of a debtor from strict and literal compliance with its requirements, can no more be effected by an exertion of the taxing power than it can be by the exertion of any other power of a State legislature. The constitutional provision against impairing contract obligations is a limitation upon the taxing power as well as upon all legislation, whatever form it may assume. Indeed, attempted State taxation is the mode most frequently adopted to affect contracts contrary to the constitutional inhibition. It most frequently calls for the exercise of our supervisory power. It may, then, safely be affirmed that no State, by virtue of its taxing power, can say to a debtor, "you need not pay to your creditor all of what you have promised to him. You may satisfy your duty to him by retaining a part for yourself, or for some municipality, or for the State treasury." Much less can a city say, we will tax our debt to you, and in virtue of the tax withhold a part for our own use.
What, then, is meant by the doctrine that contracts are made with reference to the taxing power resident in the State, and in subordination to it? Is it meant that when a person lends money to a State, or to a municipal division of the State having the power of taxation, there is in the contract a tacit reservation of a right in the debtor to raise contributions out of the money promised to be paid before payment? That cannot be, because if it could, the contract (in the language of Alexander Hamilton) would "involve two contradictory things: an obligation to do and a right not to do-an obligation to pay a certain sum and a right to retain it in the shape of a tax. It is against the rules both of law and of reason to admit by implication in the construction of a contract a principle which goes in destruction of it." The truth is, States and cities, when they borrow money and contract to repay it with interest, are not acting as sovereignties. They come down to the level of ordinary individuals. Their contracts have the same meaning as that of similar contracts between private persons. Hence, instead of there being in the undertaking of a State or city to pay, a reservation of a sovereign right to withhold payment, the contract should be regarded as an assurance that such a right will not be exercised. A promise to pay, with a reserved right to deny or change the effect of the promise, is an absurdity.