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which prevails, from the following circumstance. It is customary for the sophomore class to take on itself the business of getting the catalogue of officers and students annually printed. It was, as usual, done by my class this fall, with the introduction, if I may so express it, 'Catalogue of the Officers and Students of Dartmouth College.' The few democrats and fellows of the baser sort' amongst us immediately employed our Hanover democratic printer to strike off an edition in this form: 'Catalogue of the Officers and Students of Dartmouth University, together with the Trustees (old and new) and Overseers of the same!' So much for affairs of college . . . "I have been exceedingly troubled with headache and my eyes have become somewhat weak. I, therefore, look with impatience for the close of the term. I would, however, observe, that, if my health is continued, I shall employ the coming vacation in diligent and profitable study, and excepting the Londonderry visit, which I heartily dread, I shall shut myself up. I have secured Smith's Botany and a Telemaque' of Dr. Mussey, to which my attention will this winter be devoted."

The last of these letters which I have in hand was written to Mr. Choate's sister Hannah, while he was studying law under Mr. Wirt at Washington, and is dated Sept. 29, 1821. It begins thus: "We sent you such a storm of letters two or three weeks since, that somehow we hardly thought to be turned off with but one in answer, however full and excellent it might be, and so have waited and waited, unreasonably you will say, in daily expectation of another or two. But I have taken hold at last and a letter you shall have with nothing in it though, but very much love to you all, very much joy at David's so gratifying recovery and the word 'all's well.'"' A little further on he writes, "M. and E. went to Mount Vernon yesterday, and have brought back leaves, acorns, etc., plucked from the grave that hallows that place and makes it a spot so dear to the heart of every American. Sister S. and I hope to go down next Saturday." Besides his regular study of the law, he tells us that he is "engaged every other day in the week, three hours in a school of young ladies as a portant - all for cash: of which the Dr. does not manage to have any very great abundance, or for which I do not choose to ask him.'' He continues, "I have some trifling debts which it is my determination you at home never shall pay, and seriously as I regret the inroad on my hours of study, I cheerfully resign from 11 to 2. You can hardly imagine how much I long to go back to you, and look around once more on our family circle, and on the 'hills, dales and waters of our much loved birth-place. Sometimes I almost determine to return this fall, but then what shall I do for money and how shall I dispose of my professional studies? So on the whole I must stand by, I think, till June, 1822. In the meantime, as soon at least as the session begins, we must contrive to hear from each other oftener, and when D., who I hope is nearly well enough already, has so recovered as to write, once a week must be the word. I like this city very little, and hope and believe I never shall make up my mind to stay here for life. That question, as to the place of my future residence, begins at last to be a very serious one, and I think of it daily and nightly. Yet there are more than two years to me yet before I need decide, and all I ought to wish to do is to improve them to the very utmost." Again, as often in the course of these letters, his fond affection for his brother David

finds its wonted expression. "You don't know how it delights me to hear of D.'s recovery, and how we want to see it under his own hand and seal."

This David, who died about five years ago at the age of seventy-six, was, I need scarcely add, a man of much prominence and great usefulness. He possessed in no small degree, many of the extraordinary natural gifts that distinguished his more celebrated brother, and, though he had had less favorable opportunities for early culture, he nobly justifies the bright hopes that clustered about his promising youth by the solid and lasting service which he rendered, through all his manhood, in the interests of Education, Law and Religion.

Among several scraps which I have in Mr. Choate's handwriting, is a letter which he wrote from WashIngton, when he was no longer a law student there, but, about twelve years later, Feb. 4, 1833, when he was a member of Congress. A short extract affords us a glimpse of what some of the national representatives were thinking about and doing: "Things stand pretty dubiously yet. However, the Union is well enough. The Tariff we may save by a bargain."

The last law case which Mr. Choate was ever engaged in has been referred to in a previous communication. A brief, written at the time with his own hand, is also in my possession, and is a curiosity in its way. Its chirography makes quite credible the story, which, however, comes to me from very good authority, that a now deceased member of the Middlesex bar once received from him a letter respecting a suit in which the two were associated with each other, and being unable to read it or to find any one else who could do so, he took it back to the writer, who was actually unable to decipher its strange characters. himself. And were the latter to reappear amongst us, after this lapse of years, I fear he would be equally unsuccessful in making out the brief I have mentioned.

I have often heard Massachusetts lawyers speak of the strong prejudice which Mr. Choate soon encountered from the older and more conspicuous members of the profession after his advent at the Boston bar. The way he had of gaining victories by his brilliant style, his captivating eloquence, his wonderful power over juries, and his new and novel methods of procedure, was deemed an impertinent departure from the longestablished rule and routine. Few could understand him and more than a few persistently disparaged his talents and attainments, ridiculed his efforts and peculiarities, and sought to annoy and perplex him in court by unusual rudeness. On one occasion when he had borne patiently many an unfriendly interruption and bitter taunt, some one who was near asked him why he endured such treatment and why he did not retort. "I shall retort," he said, "by getting the case." And he got it.

Others, who were fitted for the task, have already, perhaps, given us a satisfactory analysis of Mr. Choate's mind and character. It is not for me to attempt it and my letter is even now too long. But I cannot forbear adding a word about what has always seemed to me one of the very finest of his traits. During my summer sojourn at Beverly, I was a near neighbor of the venerable Dr. Boyden, whose testimony, as that of the only surviving college classmate of the great lawyer, you gave to the public in connection with your last article. In several interviews I had with him, he dwelt much upon the many rare virtues and excellencies of

his distinguished and life-long friend, and touched particularly upon his generous appreciation of whatever was good in others, and his absolute freedom from all envy and jealousy. Rufus Choate always wished and aimed to excel, but he was glad to see his companions and competitors excel, also, and was ever ready to help them in their struggles and toils. He coveted no preeminence that must needs be purchased at the cost of those who were striving with him for fame and glory. He had no habit of disparaging his associates or rivals at school, at the bar, in legislative hall or in the political arena. I can think of only one instance by way of exception. When Charles Francis Adams, during the early years of the Free Soil movement, was pointing the people to the one straight path of duty and safety, Mr. Choate, whose honest views and sympathies and actions took a very different direction, indulged in the sarcasm of referring to John Quincy Adams as the "last of the Adamses." He did not live to see, to the full extent, how unfortunate was the word. For when the awful conflict came which no oratorical gifts or skillful compromises could avert, and the peerless magician of the courts and of popular assemblies had, himself, forever quit the stage, it was that same son of the “old man eloquent," who, through long and perilous years, rendered his country a service abroad which history will claim as scarcely inferior, in measure and value, to any that was performed by the wisest and best of our statesmen at home.

Yours, very truly,
A. P. PUTNAM.

LAW REFORM IN CONNECTICUT.

THE land of steady habits" gives some promise of

better things in legal procedure than it has yet known. The governor of Connecticut, in his recent message, spoke as follows of a reformation of legal procedure.

"I beg also in this connection, and as tending in the same direction, to call your attention to our system of legal procedure. I think it difficult for the human mind to invent a more artificial plan of remedies than those provided by the common law. They are founded sometimes on absurd fiction, and often on puzzling and metaphysical subtleties, which are not seldom the despair of both the bar and the bench, and in the midst of which justice often miscarries.

"The system has some merits, but it serves too often only to cudgel the brains of lawyers and entangle the rights of parties.

"Our plan of judicial proceedings is borrowed from the English law. It has been freed from time to time by the decisions of courts and by occasional legislation, from some of its clogs and trammels, but it is still cumbersome, inconvenient, and fruitful of delay and expense. In England they have at last, under the lead of the best lawyers of the kingdom, cut up the system root and branch, and reduced the multiplied and complicated remedies of law and equity to the most direct and simple forms.

"The same work has been done in part, but less boldly, in several of our sister States. This work, if attempted here, must be done with a wise moderation and with the utmost care and painstaking. It requires the best legal ability of the State. I recommend that a commission be raised to take this matter into consideration, and if they shall think it expedient, to report to the next assembly a bill for the simplification of our

system of legal procedure, and for the more speedy administration of justice. There is no use of scratching the skin where incision and surgery are needed."

EXAMINATION OF ADVERSE PARTIES UNDER THE NEW CODE.

NEW YORK SUPREME COURT, JANUARY 10, 1878.

PEOPLE V. MUTUAL GAS-LIGHT CO. OF BROOKLYN.

A director of a corporation may be examined under the provisions of sections 870 and 873 of the Code of Civil Procedure, relating to the taking of the deposition of a party to an action.

[OTION at Special Term of Supreme Court, Second

director of defendant corporation. The facts sufficiently appear in the opinion.

GILBERT, J. An order having been made at Special Term that Alexander Stud well, a director of the defendant corporation, be examined and his deposition taken pursuant to sections 870 and 873 of the Code. Mr. Studwell now moves to vacate the order on the ground that it was not authorized by the sections referred to. The ground of the objection is that Mr. Studwell is not a party to the action, and his examination would not be an exercise of the right given to have the deposition of a party taken. The objection, if allowable, must necessarily frustrate the statute in every case where a corporation is the party against which the examination is sought. And such a construction was given by this court in Goodyear v. Phenix Rubber Co., 48 Barb. 522, to a similar provision of the former Code. The con. trary was held in Carr v. Gt. West. Ins. Co., 3 Daly, 160. See, also, 1 Robt. 610; 22 N. Y. 353.

With this conflict of direct adjudication upon the point before me, I must yield to my own opinion upon the subject. I think it is the duty of courts to enforce f statutes if a way for doing so can be devised, and that' they have no power in any case to frustrate a statute if it be practicable to carry it into effect.

The right given by section 870 of the Code to take the deposition of a party to an action is an absolute one. 2 Wait's Pr. 710. No exception of a corporation has been made. In respect to this right to examine, therefore, a corporation stands on the same footing with a natural person. Being a party, the adverse party has a right to take its deposition. The only difficulty in giving effect to such right arises from the incapacity of a corporation to make answers under oath. The same difficulty existed in the administration of the former practice of courts of equity, in cases of discovery, against corporations. As a corporation could not auswer upon oath but only under its common seal, the plaintiff was permitted to make individual members of the corporation parties defendant, although they had no pecuniary interest in the controversy, for the sole purpose of compelling a discovery upon oath. This practice was a relaxation of a well-established general rule that a mere witness cannot be made defendant, and it was permitted because otherwise there would be a failure of justice. Ang. & Am. on Corp., 10th ed., §§ 674-676; 1 Danl. Ch. Pr., 4th Am. ed., 144 et seq., and cases cited; Vermilyea v. Fulton Bank, 1 Pai. 37; Masters v. Bessie Galena Lead Mining Co., 2 Sandf. Ch. 301; McIntyre v. Union College, 6 Pai. 229; Many v. Beekman Iron Co., 9 id. 188. Bills of discovery have been abolished, but the substance of that remedy has

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been preserved by section 870 of the Code. To make the latter efficacious in the case of a corporation defendant, it needs only the adoption of a means of compelling the officers of a corporation to submit to an examination analogous to that resorted to by courts of equity, to which reference has been made, namely, the making of them parties to the proceeding for a discovery. That is done by inserting in the order for an examination the name of an officer as trustee of the corporation, and requiring him to attend and be examined.

Considering the facilities afforded by general laws for the formation of corporations, their capacity for evil, and the numerous instances of maladministration of the affairs thereof, the right given by section 870 of the Code must be regarded as a valuable safeguard against frauds and breaches of trust, which should be preserved and enforced by every reasonable and fair intendment.

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SWIRE et al., appellants, v. FRANCIS.

S., who was agent of the respondent, and practically carried on his business, sent to the appellants, in the ordinary course of business, an account showing that certain adAnces had been made on goods on their account, and drew a bill on them for the amount, which was duly honored. The advances had not been made, and S. had appropriated the amount to his own use. In an action brought by the appellants against the respondent to recover the amount of the bill: Held (reversing the judgment of the court below), that the case fell within the principles laid down in Barwick v. The English Joint Stock Bank (16 L. T. Rep. [N. S.] 461; L. Rep., 2 Ex. 259), and Mackay v. The Commercial Bank of New Brunswick (30 L. T. Rep. [N. S.] 180; L. Rep., 5 P. C. 412), and that the appellants were entitied to recover. HIS was an appeal from a decree of C. W. Goodwin, Esq., acting chief judge of Her Majesty's Supreme Court for China and Japan, at Shanghai, made on the 15th Feb., 1877, on a special case. The questions stated for the opinion of the court were, whether the respond

THIS

ent was liable to the appellants in the sums of taels 6073.30 and taels 57.18 respectively, together with interest from the 2d April, 1876. The court decreed that the respondent should pay to the appellants the sum of taels 57.18, and that the claim of the appellants for the sum of taels 6073.30 and interest should be dismissed, and that the appellants should pay to the respondent the costs of suit. This appeal was entered against so much of the said decree as relates to the claim for the sum of taels 6073.30 and interest, and to the costs of suit.

It appeared from the special case that the appellants acted as general agents in China of the China Navigation Company (Limited), an English Joint Stock Company owning a line of steamers running between ports on the River Yaugtsze. The respondent, who resided and carried on business at Shanghai, also carried on business under the style of Francis & Co., at Kiukiang, one of the ports on the said river, and he acted as agent of the company at Kiukiang, under the di

rection of the appellants. The business of the respondent at Kiukiang was practically carried on by one W. H. Shaw, who was employed and paid by the respondent, and who signed the name of Francis & Co., per procuration.

The respondent was remunerated by a commission on the freight and passage moneys earned through his agency.

It was part of the business of the appellants (on their own account, and not as agents of the company) to make advances through the respondent and other local agents, at the various ports on the river, to Chinese merchants upon goods intended for shipment, or in the course of shipment. Such advances were from time to time made through the respondent at Kiukiang; they were made either with sycee remitted for the purpose by the appellants, or with the proceeds of drafts drawn in respect of them by the respondent on the appellants. The respondent's firm rendered accounts to the appellants monthly, or, if required, oftener. The respondent derived benefit from the advances, because, unless he had facilities for making advances, the native shippers would, in many cases, have gone to rival companies, and so the respondent would have lost his commission.

In one of these accounts rendered by Shaw it was represented by entries that respondent had advanced money on goods which appellants were entitled to assume were under the control of the company mentioned. In fact, no such advances had been made, and the entries stating that they had been were false. At the time this account was rendered, Shaw, in the name of respondent's firm, drew for the balance shown by the account, and the draft was duly honored by appellants. Subsequently a similar account was rendered, containing similar false entries, and a draft was made, and the sums said to have been advanced by the respondent to native merchants had in fact never been advanced, and Shaw appropriated them to his own use, out of moneys of the respondent under his control as agent and manager of respondent.

The court below was of opinion that the appellants were not entitled to recover the said sum of taels 6073.30, and dismissed the claim of the appellants for the said sum and interest, and directed the appellants to pay to the respondent the taxed costs of suit.

From this judgment the present appeal was brought. consequently heard ex parte. The respondent did not appear, and the appeal was

G. Bruce (Benjamin, Q. C., with him), for appellants, cited Swift v. Jewsbury, 30 L. T. Rep. (N. S.) 31; L. Rep., 9 Q. B. 301; Re United Service Company, 23 L. T. Rep. (N. S.) 520; L. Rep., 6 Ch. 212; Western Bank of Scotland v. Addie, L. Rep., 1 H. of L. Sc. 145; Barwick v. English Joint Stock Bank, 16 L. T. Rep. (N. S.) 461; L. Rep., 2 Ex. 259; Mackay v. Commercial Bank of New Brunswick, 30 L. T. Rep. (N. S.) 180; L. Rep., 5 P. C. 394; Udell v. Atherton, 4 L. T. Rep. (N. S.) 797; 7 H. & N. 172; Makersy v. Ramsay, 9 Cl. & F. 818.

Their Lordships' judgment was delivered by

Sir ROBERT COLLIER, who, after going through the facts of the case as set out above, continued: Their Lordships are of opinion that it was within the scope of the authority of Mr. Shaw, as that expression has been defined in many cases, to make out the account which is spoken of, to insert in it the advances made on goods on account of the plaintiffs; and to

draw the bill for the purpose of covering the balance of the account. All this was in the ordinary course of business. It is of course not to be assumed that he was authorized to commit a fraud by making the false entry of the advances of 5800 taels; but it would have been within the scope of his authority to make an advance of that kind, and to enter it in the account when made, and the case, therefore, in their Lordships' opinion, falls within the principle which is well stated by Willes, J., in the case of Barwick v. The English Joint Stock Bank (16 L. T. Rep. [N. S] 461; L. Rep., 2 Ex. 259), where he observes: "In all these cases it may be said, as it was said here, that the master had not authorized the act. It is true he had not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which that agent has conducted himself in doing the business which it was the act of his master to place him in." This doctrine has been also laid down by this board in the case of Mackay v. The Commercial Bank of New Brunswick (L. Rep., 5 P. C. 394; 30 L. T. Rep. [N. S.] 180). Their Lordships are disposed to infer that Shaw, instead of advancing the 5800 taels, which he pretended had been advanced to merchants upon cargoes to be shipped, in reality appropriated so much of his master's money to his own use, and having so misappropriated it, drew a bill in the name of his master and in the course of business upon the plaintiffs for replacing that money, and that the plaintiffs have repaid to Mr. Francis the money of his own, which had been misappropriated by his agent. But even if it be assumed, as perhaps it was in the court below, that Shaw appropriated only the proceeds of the bill which had been drawn for the increased balance to the extent of 5800 taels, still it appears to their Lordships that no substantial difference would arise in the legal bearings of the case. The bill was drawn by him in pursuance of a general authority which he had to draw on behalf of Francis & Co., whose sole representative he was in the business which Francis carried on at Kiukiang; it was paid by the defendants to the account of Francis & Co. for a general balance, which was improperly increased by the amount of 5800 taels. The proceeds of this bill belonged to Francis & Co., and the case comes to this, that 5800 taels were paid to Francis & Co., by the plaintiffs, without any consideration whatever, and that Shaw fraudulently misappropriated that money. In either aspect of the case it appears to their Lordships to fall within the authority of the case which has been referred to, of Barwick v. The English Joint Stock Bank, as well as within the authority of Mackay v. The Commercial Bank of New Brunswick. Their Lordships have only further to observe that it would appear to them that the court below was somewhat misled by the assumption that the law concerning the relations of bailor and bailee applies to this case. If the question had arisen with respect to an actual transmission of bullion or coin which had been stolen by Shaw, the observations of the court would have been applicable, but it appears to their Lordships that this case is governed by other considerations, to which they have referred. Under these circumstances their Lordships will humbly advise Her Majesty that the judgment of the court below be reversed, and that judgment be entered for the plaintiffs for 6073.30 taels (Shanghai currency) in addition to the sum for which it is at present entered, together with interest to be

fixed and calculated, in the manner provided by the special case, and that the record be remanded to the Supreme Court at Shanghai for this purpose. The appellants will have the costs of the appeal.

STATE INTERFERENCE WITH PATENT

RIGHTS.

UNITED STATES CIRCUIT COURT FOR THE SOUTHERN DISTRICT OF OHIO.

WOOLEN V. BANKER.

A State statute requiring notes given for patent rights or patented inventions to bear the words "given for a patent right" is contrary to the Constitution of the United States and void.

A

CTION upon a promissory note.-Upon the trial in the District Court before Swing, J., and a jury, the statute mentioned in the following opinion was held unconstitutional, and a verdict was rendered for the plaintiff. A motion for a new trial was heard by Mr. Justice Swayne. The opinion is as follows:

SWAYNE, J. The plaintiff brought his action upon a promissory note of $500, containing the words, "given for a patent right." The defendant set up failure of consideration for that the patent right was void for want of novelty, and of no value, relying upon the statute of Ohio, passed May 4, 1869, § 66, O. L. 93, which provides that "any note the consideration for which shall consist in whole or in part of the right to make, use or vend, any patent invention or inventions claimed to be patented, shall have the words "given for a patent right prominently and legibly written or printed on the face of such note above the signature, and such note or instrument in the hands of any purchaser or holder shall be subject to the same defenses as in the hands of the original owner or holder."

The reply sets up that the plaintiff's intestate purchased said note for value, without notice, before maturity.

Upon a trial to a jury, the defendant offered evidence to show that when the note fell due, and demand was made, he offered to return the patent right and cancel the obligation. The court refused to admit the evidence, and defendant's counsel excepted. An exception was also taken to the refusal of the court to admit evidence that the patent was void for want of novelty, and of no value, and also to the charge of the court, because the jury were not instructed that the defendant was entitled to the same defenses against the plaintiff, although an innocent purchaser for value before maturity, as he would have against the original payee.

These exceptions raise the question of the constitutionality of the statute of Ohio above quoted, and how much soever it might be disagreeable to this court to pronounce upon the unconstitutionality of a State statute before the Supreme Court of that State has done so, the merits of this case require such duty of us, and we cannot shrink from it.

A construction has been given to the statute in one of its bearings by the Supreme Court of the State of Ohio in The State v. Peck, 25 Ohio St. 29, in which the court say: "To construe the phrases "patent right, patented invention, and inventions claimed to be patented "as used in the act to mean machines manufactured under letters patent by the patentee or his assigns, would give to them not only an unusual, forced and unnatural import, but would seriously interfere with and

injure the manufacturing interests and commercial prosperity of the State, which cannot be presumed to have been intended by the General Assembly in the passage of the act."

That the Constitution of the United States has conferred upon the Congress the power "To promote the progress of science and the useful arts, by securing, for a limited time, to authors and inventors the exclusive right to their respective writings and discoveries" by § 8, art. 1, is no more certain than that such power has been exercised by the enactment of patent laws, and that no State can limit, control, or even exercise the power. Congress has not only regulated the manner in which a patent may be obtained, but it has prescribed the manner in which it may be sold and conveyed, and has imposed the penalties for the infringement thereof. The national government has, therefore, made a patent right property. The patentee has paid the government for the monopoly, and it is bound to protect him and his assignee in the use and enjoyment of it. Any interference whatever by any State, that will impair the right to make, use, or vend any patented article, or the right to assign the patent or any part of it, is forbidden by the highest organic law. The statute in question is such an interference aud is unconstitutional.

We are supported in this opinion by every court that has had occasion to pass directly upon the question.

DAVIS, J., In re Robinson, reported in 2 Bisl. 309, pronounced the Indiana law, similar in terms to the Ohio law, clearly unconstitutional.

The Supreme Court of Indiana, in Helm v. First National Bank, 43 Ind. 167, held that as the Federal government has continuously, from the adoption of the Constitution down to the present time, legislated on the subject of patents, and as, from the nature and subject of the power, it cannot conveniently be exercised by the State, it must necessarily be exercised by the national government exclusively, and adds: We are of the opinion that the legislature of Indiana possessed no power to pass the statute under consideration, and it must, therefore, be held unconstitutional and void."

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And so in Hereth v. Merchants' National Bank, 34 Ind. 380, it was held that a maker of a promissory note in the hands of an innocent purchaser for value before due, could not be heard to plead fraud, or failure of consideration, although "given for a patent right" was in the body of the note, and that these words did not put the purchaser on his guard, or convey any notice whatever, being equivalent to "value received." And so, in Hascall v. Whitmore, 19 Me. 102; Smith v. Hiscock, 14 id.

There is no error in rejecting the evidence offered, nor in refusing to charge the jury as requested. The decision of the court below is sustained, and judgment may be entered on the verdict. Leave to have the cause certified to the Supreme Court refused.

UNITED STATES SUPREME COURT ABSTRACT.

BANKRUPTCY.

Mere passive non-resistance to judicial proceedings not giving a preference. The mere non-resistance of a debtor to judicial proceedings against him, when the debt is due and there is no valid defense to it, is not the suffering and giving a preference under the bankrupt act. It is also held that the facts that the

debtor does not himself file the petition in bankruptcy under such circumstances, and that the creditor was aware of the insolvency of the debtor, do not avoid the judgment and execution. (Wilson v. The City Bank, 17 Wall. 473.) Judgment of Circuit Court, S. D., New York, reversed. Tenth National Bank of New York, appellants, v. Warren et al. Opinion by Hunt, J.

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CONSTITUTIONAL LAW.

Depriving person of property without due process of law: origin and history of constitutional provision: definition. An assessment of the real estate of plaintiff in error in the city of New Orleans for draining the swamps of that city was resisted in the State courts, and is brought here by writ of error, on the ground that the proceeding deprives the owner of his property without due process of law. The origin and history of this provision of the Constitution considered as found in magna charta and in the fifth and fourteenth amendments to the Constitution of the United States. The difficulty and the danger of attempting an authoritative definition of what it is for a State to deprive a person of life, liberty, or property, without due process of law, within the meaning of the fourteenth amendment suggested, and the better mode held to be to arrive at a sound definition by the annunciation of the principles which govern each case as it arises. Judgment of Supreme Court of Louisiana affirmed. Davidson, plaintiff in error, v. Administrators of New Orleans. Opinion by Miller, J.

2. What due process of law does not require. - It has already been decided in this court that due process of law does not require that the assertion of the rights of the public against the individual, or the imposition of burdens upon his property for the public use, should in all cases be done by a resort to the courts of justice. (Murray v. Hoboken Co., 18 How., and McMillan v. Anderson, at this term.) Ib.

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4. What are matters in which State authorities are not controlled by Federal Constitution. - Neither the corporate agency by which the work is done, the excessive price allowed for the work by statute, nor the relative importance of the work to the value of the land assessed, nor the fact that the assessment is made before the work is done, nor that the assessment is unequal as regards the benefits conferred, nor that personal judgments are rendered for the amount assessed, are matters in which the Federal Constitution controls the State authorities. Ib.

5. State law authorizing dams across small navigable rivers. In the absence of legislation of Congress regulating the matter, acts of the legislature of Wisconsin providing for the erection of dams and booms upon small streams wholly within the State, but navigable a short distance up from their mouths, but whose chief value for water carriage is for logs, sawed lumber, etc., the structures mentioned being necessary to develop and utilize such value, held not invalid, as being in contravention of the commerce clause of the Federal Constitution. Judgment of Circuit Court, W.

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