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State which determines the defendant's exclusive / JUDGMENT that the relator be discharged; to which

water opposite their lands. Gould Waters, $ 182, and defendant in the exclusive right within one mile from cases cited in note Ang. Water-courses, $ 61; Mart the shore of Sulphur island, but beyond that limit the v. Hill, 1 Whart. 124; Beckmant v. Kreamer, 43 lll. right of fishing is common, and the public have equal 447.

rights there. It appears to me that the statute has The case of Richardson v. Prentis does not conflict protected the defendant to the full extent he can with the views I have expressed. Although the case reasonably ask, and when he went beyond that limit discusses the rights of riparian owners, and refers to and pulled out and destroyed plaintiff's stakes, he them generally in the language of the authorities as was liable to an action for the damages occasioned extending ad medium filum aquce, yet the case pre- thereby. sented was whether a person, after selling to com- The judgment is plainant land bounded by the waters of the lake,

Affirmed. could go in front of complainant and appropriate the land under the water. The grantor had no more right to exercise exclusive dominion over HABEAS CORPUS DISCHARGE NOT SUBJECT the soil under the water in front of the lands of her

OF EXCEPTIONS. grantee than an entire stranger; and it is clear upon all the authorities that complainant had certain ri- VERMONT SUPREME COURT, JANUARY TERM, 1884. parian rights flowing from her, being the owner of the shore, which neither her grantor nor any other per

MATTER OF BARKER.* sou could deprive her of without her consert. The question to be decided was whether the complainant's

When a prisoner is discharged on habeas corpus from the cus

tody of an officer holding him in arrest under a warrant grantor, after selling the shore to complainant, had ri

issued by a justice of the peace, such officer is not entitled parian rights in front of the lands sold which she to exceptions; and if exceptions are allowed, they will be could appropriate to her own private and exclusive dismissed on motion in the Supreme Court. Ross, J., disuse, and it was held that she had not, and that the senting. complainant had a right to be protected against the The officer holding the relator was in no legal sense a party to unauthorized appropriation of such land which would

the cause in which the relator was arrested, and had no deprive her of her access to the water.

right involved. That was a criminal cause prosecuted in

the name of the State. I have already cited numerous authorities to show

The statute (Rev. Stat., $ 1385) allowing exceptions has referthat riparian rights exist on the banks of waters,

ence to civil cases only. The allowance of exceptions to whether navigable or not navigable, whether subject the officer when a prisoner is discharged is inconsistent to ebb and flow of tide or not. The subject is fully with the object of the writ of habeas corpus. discussed and authorities collated in Gould Waters, $8 In re Cooper, 32 Vt. 273, distinguished, the prisoner being the 124, 140, 149.

excepting party in that case. There is nothing in the previous decisions of the

decision R. R. Mead, the constable of Rutland right of fishing at the point stated in the declaration.

having the relator in custody, excepted. The case was I think that the waters of Thunder bay are public

heard ou a motion to dismiss the exceptions. waters, and the right of fishing therein is a common right of all the citizens of this State, subject only to

W. C. Dunton and James Barrett, for Mead. the paramount right of navigation, and is the subject Prout & Walker, for the relator. of legislative control. Aug. Tide Waters, S$ 124, 21, 22;

POWERS, J. The questions presented for considera McCready v. Virginia, 94 U. S. 391; Slate v: Company,

tion arise upon the relator's motion to dismiss the ex49 N. H. 250; Sloan v. Biemiller, 34 Ohio St. 492: 3

ceptions filed in the cause. Kent. Comm. 418. These fisberies are beginning to as

In the County Court the relator was discharged from sume great commercial importance. The census re

the custody of Mead, the officer holding him in arports for the year 1880 shows that the capital invested

rest under the warrant issued by Justice Cain, and to in the fisheries of this State was nearly half a million

this judgment of the County Court Mead filed excepof dollars, employing 1,781 men, and the value of

tions. The relator now insists that Mead had no right the product was nearly three-quarters of a million dol.

to file exceptions to said judgment; and secondly that lars.

nobody can file them in a case where the relator is dis The State has already taken the subject under its

charged. control. There is a permanent board of fish commis

By section 1385, Rev. L., “ issues of law and sioners, and laws bave from time to time been passed

questions of law, arising upou the trial of an issue regulating the time and manner of catching fish. How.

of fact, by the court or jury, and placed upon the recSt., ch. 63. Section 2172 of this chapter provides: “It

ord by the agreement of the parties or the allowance shall be unlawful for any person or persons to put into

of the court, determined by a County Court, may pass any of the waters fronting or bordering land where

to the Supreme Court for final decision; but execufish are taken by the legal owner or occupant of such

tion shall not of course be stayed, but may be stayed lands, any vessel or ship ballast, stone, sand, coal cin

by order of the court on consideration of the difficulty der, ashes, log slabs, decayed wood, bark, saw-dust, or

and importance of the question." obstruction or filth of any other description, or to

This section obviously relates to civil cases inter piace or drive any pound-net, piles or stakes, or any

partes. The last paragraph, relating to a stay of exeother piles or stakes, or posts, or build any platforms cution, can have no appropriate meaning in any other or piers, or any species of seines, or continuous trap

view. nets, to the extent of the breadth of such legal owner

Again, by section 1388, and later sections in the same or occupant's lands so far as the channel banks of the rivers, and to one ipile from the beach or shore, at

chapter, providing for allowance of exceptions by

the presiding judge, it conclusively appears that seclow-water mark, of the lakes, straits, inlets, and bays

tion 1385 has reference to civil cases between party and on said waters fronting such owner or occupant's

party; and such has always been the understanding of lands, and it shall subject any boat-owner, or captain

our courts and bar. of any vessel, to a fine of not exceeding fifty dollars,

Mead, the officer holding the relator in custody, was who shall willfully run into or molest any pound-net,

in no legal sense a party to the cause in which the relatrap, or other stationary nets or fixtures set in the lakes for fishing purposes." This statute protects the

*To appear in 56 Vermont Reports.

tor was arrested. That was a criminal cause prose- Shaw, C. J., in dismissing the exceptions, says: “The cuted in the name of the State by an informer. If general principles of law are opposed to the allowance Mead could file exceptions to the order discharging of exceptions in this case. The great purpose of the the relator from custody, then every tipstaff lucky writ of habeas corpus is the immediate delivery of the enough to hold a criminal warrant could trot his pris- party deprived of personal liberty. The allowance of oner seeking liberty from court to court interminably, exceptions would be inconsistent with the object of the Dotwithstanding the wish of the prosecuting officers to writ. The consequence of allowing exceptions would end the proceedings.

be either that all further proceedings be stayed, which It was to remedy delays of this character that the would be wholly inconsistent with the purpose of the Habeas Corpus Act of Charles II was enacted; and if writ; or that the exceptions must be held frivolous, tbe doctrine now contended for is to prevail we are and judgment rendered non obstante for the discharge compelled to go back iu history two hundred years, of the party; in which case the exceptions would be and to embrace the privciples of personal liberty as unavailing. The allowance of exceptions being thus expounded by the Stuart kings. This act of May 26, inconsistent with the very purpose of the writ, the 1679, did not create this writ; it merely swept away conclusion must be that the exceptions do not lie." the subterfuges adopted to delay and make it ineffect- This case is cited to show the ground on which the ual. It provided for a speedy deliverance of prisoners, proceedings rest, which is the same whether they are and is a part of the common law of Vermont. The instituted before a judge at Chambers or in court. subsequent legislation in England, and the whole Shaw, C. J., further declares that the Massachusetts course of legislation and judicial exposition in Amer. statute, which provides that “in any trial or other ica, disclose the most jealous anxiety to make the writ proceeding either of a civil or criminal nature, at law a quick and summary proceedure for relief from im- or in equity,'' before this court when held by one jusprisonment.

tice, may be reserved and reported for the consideraThe inquiry in the County Court was whether the tion of the full court, applies to another class of cases. process under which the relator was held was valid. The reasoning of this case shows that exceptions would Mead had no personal interest in the custody of the not lie had the case been pending in court instead of relator, and no right involved in such inquiry.

before a judge at Chambers. In Knowlton v. Baker, It is suggested that Mead should have the right to 72 Me. 202 (1881), this precise question arose in a case exceptions, as he may be liable for a false imprison- | pending in the court. ment if the relator is discharged. This suggestion Walton, J., says: “Exceptions do not lie to the disgoes upon the ground that the judgment in the County charge of a prisoner on habeas corpus. The object of Court would be conclusive upon him as an estoppel; the writ is to secure the right of personal liberty; and but it is a fundamental doctrine that an estoppel must this can only be accomplished by prompt action and a be mutual. If the judgment remanding the prisoner speedy trial. To allow exceptions to the order of the to his custody would bar a suit for false imprisonment court in term time, or to the order of a judge in vacait follows that one discharging him would ex vi termini tion, discharging a prisoner, would necessarily result fix his liability. This however is not the law. The in considerable delay, and thus defeat one of the prinwarrant under which Mead holds the relator was is- cipal purposes of the writ, namely, a speedy release. sued by a court of competent jurisdiction, and is reg- True, errors may resul: from such hasty action, and ular on its face. The fatality, if any existed in the parties interested in the imprisonment of the person case, is found in the proceedings antedating the war- released may thereby suffer. But the history of the rant,and for which the officer is not answerable. Mead writ shows that greater evils are liable to result from then had no right to the exceptions allowed in this the want of speedy action.” case.

The statutes of Massachusetts and Maine relating to There is however a broader doctrine applicable to the allowance of exceptions are in substance like the case which calls for exposition. Allusion has already been made to the office of the writ of habeas cor- In the Federal courts the same doctrine prevails, alpus. It is a commou-law writ; but the Legislature of though those courts have no common-law jurisdiction. this and other States has regulated the procedure un- Am. Law Rev., vol. 18, No. 1. And it is the rule in der it. The court or judge to whom application is all the States except as changed by statute. In State made must issue the writ without delay, and on its v. Everett, Dudley Law Rep. (8. C.), 295, appealed by return must examine the cause of imprisonment with- the attorney-general, the court say: "No decision out delay; and may, in a summary way, hear the evi- that can be made by this court will recapture the dedence pro and cou relating to the imprisonment. The fendant aud bring him to justice." The prisoner bad writ may be issued by the Supreme Court in session,or been discharged by the lower court, and the court very a judge thereof in vacation, or the County Court in forcibly express the futility of their revisory power session; and the bearing is the same before either trib- over that judgment. Vide remarks of Shaw, C. J., unal. If the prisoner is remanded to custody by supra. either he may apply to the other. Indeed, as Baron The case of Ex parte Cooper, 32 Vt. 353, is claimed to Parke says, in Ex parte Partington, 13 M. & W. 678, he be in conflict with this doctrine, and seems to give color may revew his application to every court in the king. to the claim. But it is to be noticed that the excepdom having jurisdiction until he obtains his liberty. tions in Cooper's case were taken by the relator, and It is not a controversy between parties, but an inqui- the court remark that “justice to the person imprissition by the government at the instance of the pris- oned requires that he should have the opportunity of oner to determine whether the right of personal lib- having the decision of the County Court revised, when erty has been invaded. If controverted matters be- the decision remands him to jail, and the question intween individuals arise in the course of the inquiry, volved is one merely of law." they arise only collaterally. Hurd on Habeas Corpus, The court clearly recognize the doctrine advanced 152. In this view of the purposes of the writ, it is by Baron Parke, supra, that the doors of another court clear that it is not a proceeding in which exceptions should be open to a relator if the lower court refuse to will lie to a judgment discharging the relator from release him. If the exceptions in Cooper's case had custody; and so are the authorities.

been filed by the State, or the sheriff having them in Wyeth v. Richardson, 10 Gray, 240 (1857), was habeas custody, we cannot believe in the light of authority or corpus before a single judge at chambers. On hearing, principle that they would have been sustained. There, the relator was discharged; and exceptions were filed. as here, the commitment of the relator was in a crim


inal proceeding; and there is under our statute (not construction. The coustitutional power of the State referred to however iv Cooper's case;, a propriety iv to enact the statute was upheld by this court. sustaining the exceptions taken by the relator.

This power was placed by the court in that case exNo case decided upon the principles of the common pressly on the ground that it was the exercise of the law can be found, we think, which warrants the allow. police power wbich bad remained with the States in ance of exceptions in cases where the relator has been the formation of the original Constitution of the discharged; and accordingly the exceptions are

United States, and had not been taken away by the

Dismissed. amendments adopted since. Ross, J., dissents.

Citing the definition of this power from Chancellor Kent, it declares that the statute in question came

within it. “Uuwholesome trades, slaughter-houses, WHEV EXERCISE OF POLICE POWER CANNOT operations offensive to the senses, the deposit of powBE LIMITED- OBLIGATION OF CONTRACTS. der, the application of steam power to propel cars, the

building with combustible materials, and the burial of

the dead may all (he says) be interdicted by law in the SUPREME COURT OF THE UNITED STATES,

midst of dense masses of population, ou the general MAY 5, 1884.

and rational principle that every persou ought so to use

the property as not to injure his neighbors; and that SLAUGHTER HOUSE Co. v. SLAUGHTER HOUSE Co.

private interests must be made subservient to the genA legislature, in regard to matters affecting the public health eral interest of the community." 2 Kent Com. 340;

and public morals, the preservation of which is so neces- 16 Wall. 62. In this latter case it was added that sary to the best interests of social organization, that a wise “the regulation of the place and manner of conductpolicy forbids the legislative body to divest itself of the power to enact laws for the preservation of health and the

ing the slaughtering of auiinals, and the business of repression of crime, cannot by contract limit the exercise

butchering within a city, and the inspection of the aniof its police power, but such a contract is subject to mod

mals to be killed for meat, and of the meat afterward, ification or repeal by future legislatures, or even the

are among the most necessary aud frequent exercises granting body.

of this power." By an act of the General Assembly of Louisiana, approved But in the year 1879 the State of Louisiana adopted

March 8, 1869, “ The Crescent City Live-Stock Lauding a new Constitution, in which were the following artiand Slaughter-House Company " became a body corpo- cles: rate, and by said act were given the exclusive right to

“Article 248. The police juries of the several parhave all such stock landed af their stock landing-place and butchered at their slaughter-house.

ishes, and the constituted authorities of all incorpoIn the year 1879 the State of Louisiana adopted a new Con

rated municipalities of the State, shall alone have the stitution, art. 258 of which provides: “The monopoly fea- power of regulating the slaughtering of cattle and other tures in the charter of any corporation now existing in

live stock within their respective limits; provided no the State, save such as may be contained in the charters monopoly or exclusive privilege shall exist in this of railroad companies, are hereby abolished."

State, nor such business be restricted to the land or Held, that said article, and the ordinances enacted under au- houses of any individual or corporation, provided the

thority thereof, which opened the business to general competition,did not impair the obligation of the contract er

ordinances designating places for slaughtering sball tered intered into by the act of 1869.

obtain the concurrent approval of the board of health
or other sanitary organization."
“Article 258.

* The monopoly features in .

the charter of any corporation now existing in the B. R. Forman, for appellant.

State, save such as may be contained in the charters Thomas T. Semmes, for appellee.

of railroad companies, are hereby abolished."

Under the authority of these articles of the ConstiMiller, J. This is an appeal from the Circuit Court tution the municipal authorities of the city of New for the Eastern District of Louisiana.

Orleans enacted ordinances which opened to general The appellee brought a suit in the Circuit Court to competition the right to build slaughter-houses, esobtain an injunction against the appellant forbidding tablish stock-landings, and engage in the business of the latter from exercising the business of butchering butchering in that city under regulations established or receiving and handling live stock intended for by those ordinances, but which were in utter disrebutchering within certain limits in the parishes of gard of the monopoly granted to the Crescent City Orleans, Jefferson and St. Bernard, and obtained such Company, and which in effect repealed the exclusive injunction by a final decree in that court.

grant made to that company by the act of 1869. The ground on which this suit was brought and sus- The appellant here, the Butchers' Union Slaughtertained is that the plaintiffs had the exclusive right to House Company, availing themselves of this repeal, have all such stock landed at their stock-landing place entered upon the business, or were about to do so, by and butchered at their slaughter-house by virtue of an establishing their slaughter-house and stock-landing act of the General Assembly of Louisiana, approved within the limits of the grant of the act of 1869 to the March 8, 1869, entitled “An act to protect the health of Crescent City Company. the city of New Orleans, to locate the stock-landing Both of these corporations, organized under the laws and slaughter-houses, and to incorporate the Crescent of Louisiana, and doing business in that State, were City Live-Stock Landing and Slaughter House Com- citizens of the same State, and could not, in respect of pany."

that citize!ship, sue each other in a court of the United An examination of that statute, especially of its States. fourth and fifth sections, leaves no doubt that it did The Crescent City Company however, on the allegagrant such an exclusive right.

tion that these constitutional provisions of 1879 avd The fact that it did so and that this was conceded the subsequent ordinances of the city, were a violation was the basis of the contest in this court in the Slaugh- of their contract with the State under the act of 1869, ter-House Cases, 16 Wall. 36, in which the law was as- brought this suit in the Circuit Court as arising under sailed as a mouopoly forbidden by the thirteenth and the Constitution of the United States, art. 1, $ 10. fourteenth amendments to the Constitution of the That court sustained the view of the plaintiff below, United States, and these amendments, as well as the and held that the act of 1869 and the acceptance of it fifteenth, came for the first time before this court for | by the Crescent City Company, constituted a contract

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APPEAL from the Circuit Court of the United States

for the exclusive right mentioned in it for twenty-five are not prepared to say that the Legislature can make years; that it was within the power of the Legislature valid contracts on no subject embraced in the largest of Louisiana to make that contract, and as the consti- definition of the police power, we think that in regard tutional provisions of 1879 and the subsequent ordi- to two subjects so embraced it cannot by any contract nances of the city impaired its obligation, they were to limit the exercise of those powers to the prejudice of that extent void.

the general welfare. These are the public health and No one can examine the provisions of the act of 1869 public morals. The preservation of these is so neceswith the knowledge that they were accepted by the sary to the best interests of social organization that a Crescent City Company, and so far acted on, that a very wise policy forbids the legislative body to divest itself large amount of money was expended in a vast slaugh- of the power to enact laws for the preservation of ter-house, and an equally extensive stock-yard and health and the repression of crime. landing-place, and hesitate to pronounce that in form It cannot be permitted that when the Constitution they have all the elements of a contract on suficient of a State, the fundamental law of the land, has imconsideration.

posed upon its Legislature the duty of guarding, by It admits of as little doubt that the ordinance of the suitable laws, the health of its citizens, especially in city of New Orleans, under the new Constitution, im- crowded cities, and the protection of their person and paired the supposed obligation imposed by those pro- property by suppressing and preventing crime, visions on the State, by taking away the exclusive the power which enables it to perform this duty can right of the company granted to it for twenty-five be sold, bargained away, under any circumstances, as Fears, which was to the company the most valuable if it were a mere privilege which the legislator could thing supposed to be secured to it by the statutory dispose of at his pleasure. contract.

This principle has been asserted and repeated in this We do not think it necessary to spend time in de- court in the last few years in no ambiguous terms. monstrating either of these propositious. We do not The first time it seems to have been distinctly avd believe they will be controverted.

clearly presented was in the case of Boyd v. Alabama, The appellant however insists that so far as the act 94 U. S. 646. That was a writ of error to the Supreme of 1869 partakes of the nature of an irrepealable con- Court of Alabama, brought by Boyd, who had been tract, the Legislature exceeded its authority, and it convicted in the courts of that State of carrying on a bad no power to tie the hands of the Legislature in the lottery contrary to law. In his defense he relied upon future from legislating on that subject without being a statute which authorized lotteries for a specific purbound by the terms of the statute tben enacted. This pose, under which he held a license. The repeal of proposition presents the real point in the case.

this statute, which made his license of no avail against Let us see clearly what it is.

the general law forbidding lotteries, was asserted by It does not deny the power of that Legislature to his counsel to be void and as impairing the obligation create a corporation, with power to do the business of of the contract, of which his license was evidence, and landing live-stock and providing a place for slaughter- the Supreme Court of Alabama had in a previous case ing them in the city. It does not deny the power to

held it to be a contract. locate the place where this shall be done exclusively. In Boyd's case however that court held the law under It does not deny even the power to give an exclusive which his license was issued to be void, because the right for the time being to particular persons or to a object of it was not expressed in the title as recorporation to provide this stock-landing and to estab- quired by the Coustitution of the State. This court lish this slaughter-house.

followed that decision, and affirmed the judgment on But it does deny the power of that Legislature to that ground. continue this right so that no future Legislature, nor But in the concluding sentences of the opinion by even the same body, can repeal or modify it, or grant Mr. Justice Field, the court, to repel the inference that similar privileges to others. It concedes that such a the contract would have been irrepealable if the statlaw, so long as it remains on the statute book as the ute had conformed to the special requirement of the latest expression of the legislative will, is a valid law Constitution, said: and must be obeyed, which is all that was decided by “We are not prepared to admit that it is competent this court in the Slaughter-House Cases. But is asserts for one Legislature, by any contract with an individ. the right of the Legislature to repeal such a statute or ual, to restrain the power of a subsequent Legislature to make a new one inconsistent with it, whenever in to legislate for the public welfare, and to that end to the wisdom of such Legislature it is for the good of suppress any and all practices tending to corrupt the the public it should be done.

public morals," citing Moore v. State, 48 Miss. 147, and Nor does this proposition contravene the established | Metropolitan Board of Erie v. Barrie, 34 N. Y. 663. principle that the Legislature of a State may make This cautionary declaration received the unanimous contracts on many subjects which will bind it, and concurrence of the court, and a year later the principle will biud succeeding Legislatures for the time the con- became the foundation of the decision in the case of tract has to run, so that its provisions can neither be The Beer Co. v. Massachusetts, 97 U. S. 28. repealed nor its obligation impaired. The examples In that case the plaintiff in error, the Boston Beer are numerous where this has been done and the con- | Company, had been chartered in 1828 with a right to tract upheld.

manufacture beer, which this court held to imply the The denial of this power in the present instance rests right to sell it. Subsequent statutes of a prohibitory upon the ground that the power of the Legislature in-character seemed to interfere with this right, and the tended to be suspended is one so indispensable to the case was brought to this court on the ground that they public welfare that it cannot be bargained away by impaired the obligation of the contract of the charcontract. It is that well-known but uudefined power called the police power. We have not found a better But the court, speaking by Justice Bradley, held definition of it for our present purpose than the ex- that on this subject the Legislature of Massachusetts tract from Kent's Commentaries in the earlier part of could make no irrepealable contract. "Whatever difthis opinion. “The power to regulate unwholesome ference of opinion,” said the court, “may exist as to trades, slaughter-houses, operations offensive to the the extent and boundaries of the police power, and senses," there mentioned, points uumistakably to the however difficult it may be to render a satisfactory powers exercised by the act of 1869 and the ordinances definition of it, there seems to be no doubt that it of the city under the Coustitution of 1879. While we does extend to the protection of the lives, health and


property of the citizens, and to tbe preservation of this decree was based. Even parol evidence is admisgood order and public morals. The Legislature can- sible when necessary to show what was tried in a suit, not by any contract divest itself of the power to pro- the record of which is offered in a subsequent action vide for these objects. They belong emphatically to between the same parties. Campbell v. Rankin, 99 L'. that class of objects which demand the application of S. 261. But in order to sustain the exception to the the maxim, Salus populi suprema lex, and they are to exclusion of the pleadings in the case of Gallagher T. be attain and provided for by such appropriate means Basey, it was necessary that the exception should as the legislative discretion may devise. That discre- show what the excluded testimony was, in order that tion can no more be bargained away than the power it might appear whether the evidence was material or itself."

not. Dunlap v. Monroe, 7 Cranch, 242, 270; Reed , In the still more recent case of Stone v. Mississippi, Gardner, 17 Wall. 409; Montville v. American Tract 101 U.S. 814, the whole subject is reviewed in the opin- Society, 123 Mass. 129. If it appear that this excluion delivered by the chief justice. That also was a case sion did not prejudice the case of those offering the of a chartered lottery, whose charter was repealed by testimony, the decree subsequently passed will not be a Constitution of the State subsequently adopted. It reversed for such an error. When a reservation is came here for relief, relying on the clause of the Fede- made in a deed, it is not necessary in order to give it ral Constitution against impairing the obligation of effect that the grantor should, when he executes the contracts.

deed, assert verbally his right to the property excepted * The question is therefore presented,” says the from the conveyance. Evidence that he made no such opinion, “whether in view of these facts the Legisla- assertion is clearly incompetent and inadmissible. We ture of a State can, by the charter of a lottery com- are of opinion therefore that neither of the grounds pany, defeat the will of the people authoritatively ex- upon which appellants ask the reversal of the decree pressed in relation to the further continuance of such is well founded. Other exceptions were taken during business in their midst. We think it cannot. No Leg- the course of the jury trial, but no assignments of islature can bargain away the public health or the pub- error are founded upon them. Upon an examination lic morals. The people themselves cannot do it, much of the whole record, we are convinced that the decree less their servants. The supervision of both these sub- of the District Court, which was affirmed by the Sujects of governmental power is continuing in its na

preme Court of the Territory of Montana, was accordture, and they are to be dealt with as the special exi

ing to “the right of the cause and matter of law." gencies of the moment may require. Government is Hornbuckle v. Stafford. Opinion by Woods, J. organized with a view to their preservation, and can

[Decided April 21, 1884.] not divest itself of the power to provide for them. For this purpose the legislative discretion is allowed, and REMOVAL OF CAUSE-TRIAL ON DEMURRER-NOT AL the discretion cannot be parted with any more than LOWABLE AFTER.-By the New York Code of Civil the power itself."

Procedure, issues are of two kinds: 1, of law; 2, of But the case of the Fertilizing Company v. Hyde

fact. Section 963. An issue of law arises only on a Park, 97 U. S. 659, is perhaps more directly in point as

demurrer. Section 964. A demurrer to a complaint regards the facts of the case while asserting the same may be, among other things, because “the complaint principle. The fertilizing company was chartered by

does not state facts sufficient to constitute a cause of the Illinois Legislature for the purpose of converting action." Section 488. Upon the decision of a deby chemical processes the dead animal matter of the murrer, either at a General or Special Term, or in the slaughter-houses of the city of Chicago into a fertiliz- Court of Appeals, the court may, in its discretion, aling material. Some ordinances of the village of Hydelow the party in fault to plead anew or amend on such Park, through which this dead matter was carried to terms as may be just. Section 497. An issue of law their chemical works, were supposed to impair the in the Supreme Court must be tried at a term held by rights of contract conferred by the charter. The opin- one judge. Section 976. At any time after the join. ion cites the language of the court in Beer Co. v. Mas- der of issue either party may serve a notice for trial. sachusetts, already copied here, and numerous other Section 977. A demurrer to a complaint because it cases of the exercise of the police power in protecting does not state facts sufficient to constitute a cause of health and property, and holds that the charter con- action, is equivalent to a general demurrer to a decferred uo irrepealable right for the fifty years of its laration at common law, and raises an issue, which duration to continue a practice injurious to the pub- when tried will finally dispose of the case as stated in lic health.

the complaint, on its merits, unless leave to amend or These cases are all cited, and their views adopted in plead over is granted. The trial of such an issue is the the opinion of the Supreme Court of Louisiana in a trial of the cause as a cause, and not the settlement of suit between the same parties in regard to the same a mere matter of form in proceeding. There can be matter as the present case, and which was brought to no other trial except at the discretion of the court, and this court by writ of error and dismissed before a hear. if final judgment is entered on the demurrer, it will ing by the present appellee.

be a final determination of the rights of the parties The result of these considerations is that the Consti- which can be pleaded in bar to any other suit for the tution of 1879 and the ordinances of the city of New same cause of action. Under such circumstances, the Orleans, which are complained of, are not void as im- trial of an issue raised by a demurrer which involves pairing the obligation of complainant's contract, and the merits of the action is, in our opinion, a trial of that the decree of the Circuit Court must be re- the action within the meaning of the act of March 3, versed, and the case remanded to that court with di- 1875. To allow a removal after such a trial would be rectious to dismiss the bill.

to permit “a party to experiment on his case in the State court, and if he met with unexpected difficul

ties, stop th proceedings, and take the suit to another UNITED STATES SUPREME COURT AB- tribunal." This as was said in Removal cases, 100 U. STRACT.

S. 473, could not have been the intention of Congress.

In effect, when this case was heard on the demurrer, EVIDENCE-PLEADINGS AS-EXCLUSION, WHEN NOT

the issue made by the pleadings, and on which the RESERVATION IN DEED-PAROL INADMIS

rights of the parties depended, was submitted to the SIBLE.-The decree having been put in evidence it was

court for judicial determination. This issue the court clearly erroneous to exclude the pleadings upon which

decided, but before entering final judgment, granted a


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