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Subject Area: Law
Topic: The American Revolution and Constitution

CHAPTER XI.: STATE REGULATION OF PERSONAL PROPERTY. - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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CHAPTER XI.

STATE REGULATION OF PERSONAL PROPERTY.

SECTION162.Laws regulating the creation and acquisition of interests in personal property—Real and personal property herein distinguished.
163.Statute of uses and rule against perpetuity, as regulations of personal property.
164.Regulation and prohibition of the sale of personal property.
165.Laws regulating disposition of personal property by will.
166.Involuntary alienation.
167.Control of property by guardian.
168.Destruction of personal property on account of illegal use.
169.Destruction of personal property in the interest of public health.
170.Laws regulating use of personal property.
171.Prohibition of possession of certain property.
172.Regulation and prohibition of the manufacture of certain property.
173.Carrying of concealed weapons prohibited.
174.Miscellaneous regulations of the use of personal property.
175.Laws regulating the use and keeping of domestic animals.
176.Keeping of dogs.
177.Laws for the prevention of cruelty to animals.
178.Regulation of contracts and other rights of action.
179.Regulation of ships and shipping.

§ 162.

Laws regulating the creation and acquisition of interests in personal property—Real and personal property herein distinguished.—

It has been shown in a previous section,1 that the private property in lands is acquired from the State, and is held in subordination to the absolute property in lands, which is vested in, and can never be aliened by the State, as the representative of the public in organized society. It was also asserted and explained,1 that in consequence of the public origin of all private property in land, there was but one constitutional limitation upon the power of the legislature to regulate the acquisition and transfer of estates in land, viz., that such regulations must not interfere or conflict with vested rights. Not only in the primary acquisition of land from the State, but also in the acquisition of it from former private owners, the State has the unrestricted power to determine the conditions and form of transfer, and the character of the estates so created, as long as there is no interference with vested right by a material obstruction or practical denial of the right of alienation of a vested estate. The regulations may be arbitrary in the extreme, but they cannot be subjected to any serious constitutional objection.

It is different, however, with personal property. All personal property is the product of some man’s labor, and whether the owner has acquired it by his own labor, by inheritance or by exchange, his interest is a vested right of the most unlimited character. He does not hold it by any favor of the State, and in consequence of his possession of it he has assumed no peculiar obligation to the State. He has the right, therefore, to acquire it in any manner that he pleases, provided in so doing he does not interfere with or threaten the rights of others. Laws for the regulation of the conveyance of real property may be altogether arbitrary, provided the burden so imposed upon alienation does not amount to a practical prohibition of alienation. But in order that a similar regulation of the transfer of personal property may be lawful, it must serve some public good, and whether it does promote the public welfare is a judicial and not a legislative question. In neither case is there any likelihood that an arbitrary and wholly unreasonable regulation of the conveyance of property will be attempted. In both cases the legislature would usually be prompted to regulate conveyancing only by some public consideration, and hence the distinction here made, between real and personal property, in its application to the regulation of conveyancing, does not possess much practical importance. But a case may arise, in which the attempted regulation could, under this distinction, be declared unconstitutional, and hence it is highly proper that the distinction should be presented in this connection. The ordinary legislation, in the regulation of the conveyance of both real and personal property, has for its object either the prevention of fraud, the removal of doubt concerning the validity of one’s title, or the facilitation of investigations of titles. For some one or more of these reasons, the sale of personal property is declared to pass a good title, as against a subsequent purchaser, or incumbrancer, only when the possession has been delivered, or the bill of sale is recorded; the chattel mortgage is required to be recorded; and all transfers of property are avoided in favor of existing creditors, which are not made upon some valuable and substantial considerations. All of these are reasonable regulations, for the restraint upon the rights of alienation and acquisition is but slight and serves a worthy and public purpose; for every one is interested in the prevention of fraud, as he is of all other trespasses on the rights of others.

But there is a greater likelihood of an arbitrary or unnecessary regulation of the interests or estates which one may acquire in personal property. As has been already explained, the State has the unrestricted power to determine the kinds and characteristics of the estates which may be created in lands; but the estate or interest in personal property may be as varied and unique as human ingenuity may devise, subject to the one limitation imposed by the nature of the article of personal property. Thus, for example, it is common to find it stated in law books that a future estate may be created in personal property, where the present enjoyment does not involve necessarily a consumption of the thing itself.1 Of course, the creation of an estate in personalty of such a character, that it will prove a public injury or a private wrong, may be prohibited, and all regulations of the creation of estates and interests in personal property may be instituted, which have in view the prevention of such wrongs. But except in a few rare cases, it is difficult to see how any interest in personal property can be created which will have an injurious effect on the public or third persons. One exceptional case is that of an interest so limited as to deprive creditors of the right to subject the property to their lawful demands. A law, declaring void all conditions against sale for debts, is undoubtedly constitutional, for the public is directly interested in enforcing the payment of a debt. The contraction of a debt is a voluntary subjection of property to liability for it, and the possession of property, free from this liabilty for debt, would tend to induce and increase that wild and irresponsible speculation which does so much to produce fluctuations in values and financial disasters. It is, therefore, proper to prohibit such a limitation of both real and personal property.

§ 163.

Statute of uses and rule against perpetuity as regulations of personal property.—

It was proper and constitutional for the legislature or parliament to enact the statute of uses, which has for its object the abolition of all uses, or other equitable interests, held separately from the legal title and estate, so far as it was held to apply to real property. For, although the creation of such equitable interests was charged to be conducive to the perpetration of fraud,2 and that was the reason assigned for the enactment, the real purpose was the conservation and protection of those legal rights in land, such as the king’s right of forfeiture on account of attainder, alienage and treason, and the manorial lord’s wards, marriages, reliefs, heriots, escheats, aids, etc., which were special privileges imposed upon the tenants as burdens of tenure, and the evasion of which constituted the alleged perpetration of fraud. Inasmuch as the State can impose whatever conditions and limitations upon tenancies of land it pleases, uses and trusts issuing out of land may be abolished altogether. And although the limitation of the operation of the statute to uses issuing out of freehold estates in lands was the result of a technical construction of the statute, induced by the opposition of bench and bar to the statute itself, and not by any consideration of constitutional limitations upon the power of Parliament or of the American legislature to enact the statute; if the question were to be raised anew, the application of a statute, abolishing uses and trusts, to personal property may be resisted on the ground that it is unconstitutional to prohibit the creation of trusts in personal property.1 The owner, as well as the purchaser of personal property, has a right to have the property in question conveyed to trustees to be held in trust; and the liberty and right of property of both are invaded in an unconstitutional manner, when a legislature undertakes to prohibit the creation of trusts in personal property.

In New York all passive trusts have been abolished, and only certain active trusts, enumerated in the statute, are now permitted. All other express trusts are converted by the statute into legal estates by the transfer of the seisin and estate to the cestui que trust.2 So far as the statute limits the creation of active trusts in personal property, the constitutionality of the law must depend upon the evil effect upon others of the creation of such a trust. No active trust in personal property can be prohibited which does not have some immoral or illegal purpose. It may be different with passive trusts. Since such legislation, as the New York statute just mentioned, is, whenever copied, usually accompanied with the statutory removal of all disabilities in respect to separate property from married women, there can be no sound or substantial reason for the existence of passive trusts. The creation of them may not produce any direct or positive harm, but they certainly tend to complicate the administration of the law, and for that reason the prohibition of them may possibly be justified.

Another case of regulation of the creation of interests in personal property, which may be subjected to serious criticism, is the application of the rule against perpetuity to personal property. In limiting the creation of future interests by will, the application of the rule can be easily justified, for the power to dispose of any property by will, in any manner whatever, depends upon the legislative discretion.1 But in its application to future interests in personal property, created by conveyances inter vivos, it is hard, if at all possible, to find any constitutional justification for such legislation. Personal property is the product of man’s labor, and he has the right during his life to make whatever use of it, or to dispose of it to any one, in any way, and under any terms that he pleases, provided that in so doing he does not inflict or threaten the infliction of any wrong or damage on others. It may be said that the prosperity of a country is advanced when the national wealth is not accumulated in the hands of a few, and the rule against perpetuity operates as a check upon such dangerous accumulations. But if such a reason served as a justification of this exercise of police power, it would justify the more severe, but, in principle, similar legislation, which would compel a man to confine his earnings to a certain amount, a regulation which has been urged by some labor reformers as a solution of the present industrial problems. There is no trespass, direct or indirect, upon the rights of others, in limiting a future interest in personal property, beyond a life or lives in being. And since the power to make such perpetual limitations of personal property does not depend, as does the like power in respect to real property, in any sense upon the sanction or grant of the State, it cannot be curtailed or taken away.

The application of the ordinary constitutional limitation to the exercise of police power in cases like these, may excite surprise, and is certainly novel. The general impression, both professional and popular, has been that there is no limitation upon the power of the legislature to regulate such matters. The long acquiescence in the legitimacy of such legislation tends to confirm the accepted doctrine, in opposition to the view here advocated. But if it be true that no regulation by the government of the natural rights of the individual is constitutional, which does not promote the public welfare by the prevention of a trespass upon the rights of others, it must be conceded that in cases like these, the limitations upon the power of the government have their full force and effect, and that it is the duty of the courts to see that the legislature in the exercise of its police power keeps within these constitutional limitations.

§ 164.

Regulation and prohibition of the sale of personal property.—

It is one of the absolute rights of the individual to be free from unreasonable restraints upon the sale or transfer of his personal property. The right to sell or transfer one’s property is as much an inalienable right as that of enjoyment of the property free from unnecessary restrictions. Of course, the right to sell may be subjected to whatever regulations may be needed to prevent any threatened injury to the public or to third persons. In the discussion of the police regulation of trades and employments, the regulation and prohibition of the sale of personal property, as a trade or occupation, have been discussed at length;1 and, inasmuch as all such regulations are designed to control the sale of merchandise, as a trade, they are considered and criticised in the character of restraints upon the liberty of exercising a lawful calling, rather than as an invasion of the rights of property. In the main, the same objections apply to a police regulation, whether it is considered to be an infringement of personal liberty or of the rights of property. It will, therefore, not be necessary to discuss all such regulations in detail in this place, as it would be hardly more than a repetition of what has already been written.2 But in the application of the principles there set forth, as limiting the police regulation of employments and of the sale of personal property, a distinction should be drawn between the selling of personal property as a trade, and as a solitary or occasional exercise of a right of ownership. The sale of certain personal property, as a trade, may be liable to become harmful to the public, and for that reason may properly be subjected to police regulation; whereas the mere act of selling the article of merchandise, independently of being the ordinary occupation of the seller, would contain no element of danger to the public, and therefore cannot be subjected to any police regulation whatever: and wherever the two acts can be separated, the regulation must be confined to those cases in which the selling, on account of its frequency, or of its connection with the sale of other similar articles of merchandise, assumes the character of a trade or occupation. Regulations for the prevention of fraud are, probably in every case, applicable to the unusual, as well as to the ordinary sale of personal property; so that, for example, in order to make a valid sale, as against a second purchaser, the possession must be delivered, independently of the frequency or infrequency of the act.1

But there are other cases of police regulation, which are designed to correct evils, which only arise in connection with the prosecution of a trade or occupation. Thus, for example, the sale of unwholesome food by a grocer may be prohibited altogether, in the course of his regular business, for his business is the sale of food for human consumption; and the sale by him of unwholesome food to his regular customers will almost necessarily inflict injury on the public health. And so would the sale of such food be likely to prove harmful to the public, if it should be sold by any casual owner for the purpose of being used as an article of food. But if it were sold, independently of one’s business as a vendor of human food, for some other lawful purpose, its sale could not be prohibited, for it contains no element of danger to the public health.

Conceding the position maintained in a previous section,2 that the sale of liquor in saloons, to be drunk on the premises, is the only case of the sale of intoxicating liquors which may be prohibited; and that the ground for the justification of prohibition in that case is the fact, that liquor saloons are the resort of all the more or less lawless elements of society, and consequently the public peace is endangered by their presence in the community; it is easy to understand how the prohibition of liquor saloons may be justified, and yet the application of the prohibitory law to an unusual or single case of the sale of liquor, to be drunk on the premises, by one who is not a saloon keeper, may be resisted on constitutional grounds. The latter case could not threaten a disturbance of the public peace, any more than the intemperate use of liquor, in whatever way it may be procured, is likely to do so. The cases in which this distinction would be likely to find application, are rare, and the subject need not be given any further attention.

In the sale of certain liquids, particularly milk, bottles are used, which are stamped with the name of the owner, who supplies their contents, and who, on account of the value of the bottles, desires them restored to his possession, after the customers have removed the contents. Apart from the value of these bottles, the unauthorized use of them by other dealers in the same commodities would furnish a ready opportunity to commit the fraud of palming off on future customers a spurious or inferior article as the product of the owner of the stamped bottles. For these reasons, a statute was passed in New York, which provides for the registry of stamped bottles, and prohibits the sale of them by any one without the consent of the owner, making such unauthorized sale of them a criminal misdemeanor. In its enforcement in the case of the sale of stamped milk bottles, the constitutionality of the law was attacked on the ground that the purchaser was thereby deprived of his right of property, in violation of constitutional guaranties. This plea was, however, denied, and the law was sustained.1

For the purpose of preventing the practice of fraud in the sale of intoxicating liquors, especially whisky, the distillers are in the habit of bottling the liquor under bond to the United States government, and sealing them with the government stamp, which denotes the age and guarantees the purity and strength of the liquor. An act of Congress makes it a criminal offense to fill up these bottles again, and to sell the substituted liquor in them, without completely removing the stamps and labels. There can be no question of the constitutionality of such laws. Nor would it be unconstitutional for a law to prohibit altogether the re-use of liquor bottles, which by their peculiar shape would be likely to mislead the purchaser as to the character of the contents.

The labor leaders have secured the enactment in some of the States, notably New York, of a law which prohibits the manufacture and sale of any goods, which are made with convict labor. Inasmuch as the convicts and the penitentiaries are under the complete control of the State authorities, and no personal rights can possibly be affected, if such a law were to operate only prospectively, as to the future products of convict labor, such a law in its prospective operation is clearly constitutional. But if it were made to operate retrospectively upon goods, which were made by convict labor prior to the enactment of the prohibitive law, there would be an unconstitutional interference with the right of private property of the owner of the goods so made. And it has been held that the law cannot act retrospectively, so as to annul a contract, not yet performed for farming out convict labor, which was made in accordance with the current laws of the State.1

§ 165.

Laws regulating disposition of personal property by will.2 —

The right of disposing of one’s property as one pleases, by transfer or conveyance inter vivos, is an indefeasible incident of the right of property in personalty. The transfer of real property may, under certain limitations, be restrained or prohibited according to the discretion of the legislature, since lands are acquired by grant from the State,3 subject to the right of the State to determine the conditions and terms upon which they are to be held. But that cannot be done with personal property. Personal property is the product of man’s labor, instead of being the free gift of nature, and one’s right of property is derived from the exercise of dominion over the thing.

It is a part of that lawful dominion over the thing, that the owner has the right to sell or give it away. But the natural right of property, and consequently the natural right of disposition of it, lasts only as long as the natural dominion. When that control which one may claim in consequence of the actual or constructive possession of the thing ceases, the natural right of disposition ceases; and if one has under the law any further control of the thing, it must rest upon positive law. It is, therefore, a legislative privilege, and can therefore be taken away by the same power which gave it. It will, therefore, be conceded that the right to dispose of personal property by will rests upon positive or statutory law, and is therefore subject to legislative regulation and prohibition without limitation. It is not disputed that such is the rule in respect to the disposition of lands by will,1 for we know that the present right to devise lands depends upon the authority of the English statute of wills, enacted in the reign of Henry VIII., or of some American statute, designed to take the place of the English statute; whereas the right to dispose of personalty by testament comes down to us as a common-law right.2 But there can be no doubt that the right to bequeath personal property is as much the creature of positive law, as the right to devise lands. This was the position taken by the Supreme Court of Ohio in a case, in which an act of the legislature was sustained, which provided that a bequest, by a testator leaving issue living, to any religious or charitable purpose, shall be void, if made within twelve months of the testator’s death. The enactment operated as a restraint upon the right to dispose of his personal property by will. In delivering its opinion, the court said: “We hold that the right to acquire property implies the right to dispose of it. But the inalienable rights here declared, as well as those implied, are possessed by living, not dead, men. A disposition by will does not take effect during the testator’s life, but operates only after his death. While the right of testamentary disposition may be, as Mr. Redfield in his work on wills says, instinctive, it nevertheless depends solely on municipal law, and has never been regarded as a natural or inalienable right. It has always been subject to the control of legislative power, and such power is not limited in this State by a constitutional provision.”1

§ 166.

Involuntary alienation.—

It is true with personal as with real property, that as a general rule the property of one man cannot by legislative enactment be taken away and given to another. Not only is this true in respect to known and recognized owners of personal property, but it is also true, where the property is not claimed by any visible or known owner. Thus it was held in North Carolina to be unconstitutional for the State by statute to appropriate the unclaimed dividends of private corporations to public uses.2 For the same reasons the legislative diversion of a bequest to a different use, than what was provided by the donor, was held to be unconstitutional, although in both cases the State was the beneficiary. The diversion was an interference with the reversionary interest of the donor’s heirs.3 But, notwithstanding this general rule, there are a few exceptional cases in which the State may lawfully dispose of one’s personal property against his will. They are princicipally the same as have already been explained and justified in reference to the involuntary alienation of real property;1 and, the reasons for this exercise of police power being the same in both cases, there is no need for a repetition in this place. It seems to be very doubtful whether there is any room for the application of the principles of eminent domain to personal property. Mr. Cooley says that the State may in the exercise of its eminent domain, appropriate to a public use private property of every description.2 This is confounding the meaning of terms. Eminent domain means that superior and absolute right of property which the State, as the legal representative of organized society, has in the lands within its borders, and subordinate to which all private property therein is held. In cases of extreme public necessity, it is quite probable that the State may appropriate the personal property of the citizen on payment of its full value. At least this is the case in time of war. The governments of all civilized nations exercise this power of appropriation of personal property, in order to supply themselves with whatever is needful in the prosecution of the war; and the forcible and irregular seizure of property by military commanders has been justified, when the necessity was urgent and such as will admit of no delay, and where the civil authority would be too late in providing the means required for the occasion.3 Not only does the State, in time of war, appropriate whatever personal property it may need for the prosecution of the war, as food or ammunition or weapons of warfare, but it more frequently makes forced loans of capital from its people by compelling them to accept its treasury notes as legal tender in payment of debts both public and private.4 And it is quite likely that the State may, in any other case of extreme necessity, appropriate whatever of private property may be neeedful to satisfy some urgent general want. Suppose, for example, in the case of a general failure of the crops, a famine should occur, and those who did possess stocks of provisions refused to sell at any reasonable price, or refused to sell at all, while people were brought to the extremity of starvation. Could not the State compel those, who had a “corner” on the provision market, to deliver up their property for the public good, on payment of a reasonable price? Every one has a right to put on his goods whatever price his judgment, his cupidity, or other feeling, may prompt, and the State cannot ordinarily regulate the price of commodities.1 But when the public want of food becomes so great, that the failure to satisfy it will be sure to give rise to serious disturbances of the public peace and the violent appropriation of the food that is denied them, it is idle to speak of the sacredness of private property. It cannot be doubted that an official appropriation of articles of food, under circumstances of such urgent necessity, would be judicially justified on the plea of necessity, however illogical it may seem. But all other means of satisfying the public hunger must first have been exhausted, before the selfish proprietor of the scarce articles of food may be forcibly subjected to instruction in the graces of Christian charity.2

§ 167.

Control of property by guardian.—

The control of the ward’s property is so common an authority of the guardian, that it is altogether unnecessary to refer to cases in support of the constitutionality of a law which invests the guardian with this control over the property of the infant ward. The helplessness of the minor, and his inability to manage his property in a careful manner, resulting from his immaturity, constitute sufficient reasons for taking from him the control of his property. The powers of the guardian are dependent upon the provisions of the law, and are constantly subject to legislative regulation and change. The common law gave to the guardian of a minor the power to manage his real estate, lease it and collect the rents, make repairs, etc., but he had not the power to make a sale of it in fee, without an order from a court of equity. And this is the general rule, in this country, at the present day.1 But the guardian has, in the absence of statutes to the contrary, the ordinary power of selling and disposing of the personal property of the minor, whenever he should deem it advisable to do so.2 And it seems that, after a guardian has been appointed and has taken charge of the ward’s estate, he acquires such a vested interest in the property during the guardianship, that a law would be unconstitutional, because it deprived him of a vested right, which provided for the sale of the minor’s property by another, even though the other person be the mother of the ward.3

Not only is it a legitimate exercise of police power to place the control of a minor’s property in the hands of a guardian; but it is equally competent to place under guardianship the person and property of all other persons, who from any cause may become unable to take care of themselves. There can be no doubt of the power to treat the insane in this manner. And it has been held to be competent, in the exercise of the police power, to place habitual drunkards under guardianship. The assumption by the guardian of the control of the property of the drunkard would not be an unlawful deprivation of property. The derangement of mind, resulting from habitual intemperance, would place him in the same category with the ordinary insane.4

The claim has also been made that the property of spendthrifts may be taken from them and placed under the control of a guardian or curator.1 But it would appear to be a very difficult matter to determine just what degree of extravagance will make the possessor of property a spendthrift. And before that difficulty could be overcome, it would be necesary to determine what makes one a spendthrift. Webster defines a spendthrift to be “one who spends money profusely or improvidently.” If that be taken as a correct definition, it would be difficult to discover in it the element which would justify this exercise of police power. If it be established that his improvident expenditures are the acts of a deranged mind, then he could lawfully be placed under guardianship, on the ground that he is suffering from a form of dementia. But if a perfectly sane man chooses to spend a fortune in high living; prefers the pleasures of a riotous life, with poverty in advanced years, to an equable and moderate expenditure of his income, with the enjoyment of ease and comfort through life, and a proper provision for his heirs; who can lawfully hinder him from making the choice? A man can do what he please with his own property, provided he does not interfere with or transgress some vested right of another. He may, like Raphael Aben Ezra, give away his entire fortune, and become a beggar and a wanderer upon the face of the earth; and no one in a free State dare deny him that privilege. And what he could give away, without receiving any equivlent therefor, he may dispose of in riotous living.

§ 168.

Destruction of personal property on account of illegal use.2 —

In a variety of cases, it has been provided, as a penalty for the infraction of the law, that the implements used in the prosecution of an unlawful trade, or in the doing of an illegal act, shall be seized and destroyed. It is a most common provision in the laws for the regulation and prohibition of the sale of intoxicating liquors.1 The same provision has been made to apply to nets and other implements employed in illegal fishing;2 so also in respect to the stock in trade of a gambler,3 or of a counterfeiter.4 But in all of these cases the seizure and destruction must rest upon a judgment of forfeiture, procured at the close of an ordinary trial, in which the owner of the property has had a full opportunity to be heard in defense of his property.5 Conceding in every case the illegality of the use to which the property has been put, the constitutionality of the statute cannot be questioned, when the proper hearing is provided for before condemnation.

The authorities do not, however, sustain the text altogether in the statement that things, which are being used in violation of law, cannot be lawfully destroyed without a judgment for condemnation in proceedings in which the owner of them has had an opportunity to be heard in his defense. The courts seem to justify summary destruction without condemnation proceedings in every case in which the illegal character of the things or of their use is unmistakable, and in which the value of the things destroyed is comparatively trivial. Thus in the case of the law of New York, which authorizes the game protectors to destroy summarily: “Any net found, or other means or device for taking or capturing fish, or whereby they may be taken or captured, set, put, floated, had, found, or maintained in or upon any of the waters of this State, or upon the shores or islands in any waters of this State, in violation of any existing or hereafter enacted statutes or laws for the protection of fish,” the United States Supreme Court joins the New York Court of Appeals in sustaining its constitutionality, notwithstanding condemnation proceedings are not first required.1 Thus, in the case cited the United States Supreme Court says on this point:—

“It is not easy to draw the line between cases where property illegally used may be destroyed summarily and where judicial proceedings are necessary for its condemnation. If the property were of great value, as, for instance, if it were a vessel employed for smuggling or other illegal purposes, it would be putting a dangerous power in the hands of a customs officer to permit him to sell or destroy it as a public nuisance, and the owner would have good reason to complain of such act as depriving him of his property without due process of law. But where the property was of trifling value, and its destruction is necessary to effect the object of a certain statute, we think it is within the power of the legislature to order its summary abatement. For instance, if the legislature should prohibit the killing of fish by explosive shells, and should order the cartridges so used to be destroyed, it would seem like belittling the dignity of the judiciary to require such destruction to be preceded by a solemn condemnation in a court of justice. The same remark might be made of the cards, chips and dice of a gambling room.”2

§ 169.

Destruction of personal property in the interest of public health.—

Elsewhere, in more than one place, the discussion of modern police regulations has revealed the tendency of judicial and public opinion to translate the maxim, salus populi suprema lex; the public health is the highest law; and whenever a police regulation is reasonably demonstrated to be a promoter of public health, all constitutionally guaranteed rights must give way, to be sacrificed without compensation to the owner. The sacred right of property, so jealously guarded against infringement or trespass in other cases, whether at the hands of the State or of other private persons, is freely invaded, whenever such invasion is made in the promotion of the public health. And the courts unite in the grave statement, when property is taken or destroyed, in order to promote the public health, or to prevent the spread of infectious or contagious diseases, that it is not a taking of private property in the constitutional sense, which is either prohibited altogether, or is only permitted upon payment of full compensation to the owner. The destruction of beds, bedding and clothing, which have been used by a sufferer of some deadly infectious or contagious disease, is authorized wherever disinfecting by fumigation or otherwise is not considered by the health officers to furnish a sufficient protection against contagion. So far as I know the destruction of such property by the boards of health has never been questioned; possibly, because the cases have become rare, on account of the great advance which has been made in the effectiveness of fumigation and of other disinfectants which have been discovered. Certainly, the destruction of property, when the use of disinfectants will furnish the required protection against contagion, would be pronounced to be a useless trespass upon the right of property, and hence to come within the inhibition of the constitutions.

The power of the State to destroy property, in order to prevent the spread of disease, has been most actively resisted in the case of diseased animals. This determined resistance to such regulations may be occasioned, either by the greater value of the property so destroyed, or by the absence of a popular conviction that the destruction of the diseased animals is necessary to the preservation of the public health. A herd of Jersey milch cows is treated, as is required by the laws of New York, and of other States, to injections of tuberculin, the medicine which is declared to have the power of disclosing the existence in animals of latent or concealed tuberculosis; and the animals which, under this treatment, develop tuberculosis, are knocked in the head, because the medical profession, under the modern bacterial or general theory of diseases, have come to the generally accepted conclusion that the dreaded disease of tuberculosis may be transmitted to a human being who drinks the milk or eats the flesh of a tuberculous animal. Many owners of such herds of cattle, perhaps the majority of them, blinded by their own pecuniary loss, when for this cause and reason their valuable cattle are destroyed, repudiate the medical theories upon which the act of destruction is based, and by which it is justified, and consider it a wanton and unjustifiable taking of private property. But the courts have uniformly sustained all laws which provide for the destruction of diseased animals, and deny the owner’s claim to compensation for his loss.1

On the same principle, it has been held to be a lawful exercise of the police power to provide for the destruction, without compensation, of trees which are affected with a disease called the “yellows.”2

§ 170.

Laws regulating the use of personal property.—

While personal property is protected by constitutional limitations against all unnecessary interference and regulation, it is a standard rule of police power that one must not make such a use of his property as to injure another; and, consequently, the use and enjoyment of personal property may be subjected to such police regulations as may be necessary to prevent any threatened injury to the public. The proof of the existence of a threatened injury, and of the appropriateness of the proposed regulation as a remedy, will always justify the interference. Its efficacy is not a matter for judicial consideration. Laws for the regulation of the use of personal property may be as varied as the uses to which such property can be put; and it is only possible to refer to a few exemplary cases which have come up before the courts for construction.

§ 171.

Prohibition of possession of certain property.—

In the first place, the very possession of personal property, coupled with an intent proven or presumed, may be such a public evil as to justify the prohibition of such a possession. Thus, a Rhode Island statute forbade the possession with intent to sell or exchange, of adulterated milk, and it was declared to be constitutional.1 But the unlawful intent would, in such a case, have to be proven. Without this intent, the possession of the adulterated milk neither produces nor threatens any harm to the public; and since adulterated milk may be put to some other use, which is not, and cannot, be prohibited, the unlawful intent to sell cannot be presumed from the mere possession. A New York statute makes the possession of stamped bottles or cans, prima facie evidence of unlawful use or purchase of the same, in violation of the statute and of the right of property therein of the owner.2 And the statute authorized the owner to empty the contents into the street.1

But it is different when the thing cannot be put to any unobjectionable use. In such a case the thing cannot be presumed to be of any value to its owner except on the hypothesis, that he intends to make this injurious use of it, and hence the wrongful intent may be presumed from the act of the possession. Thus the constitutionality of a statute was sustained, which imposed a penalty upon any one who should have in his possession any dead game in certain seasons of the year.2

A New York statute, aiming to put a stop to the fraudulent sale of silver articles, as sterling, and marked “sterling,” which do not contain the proportion of silver which the trade requires to make an article sterling, makes the possession of such fraudulent articles a criminal misdemeanor. The proportion of silver, which is required by the statute to authorize the use of the stamp “sterling” is 925/1000.3

§ 172.

Regulation and prohibition of manufacture of certain property.—

As a general proposition, it can hardly be doubted that one has a constitutional right to change the form and condition of his personal property to whatever extent he may see fit; and he may make a business of manufacturing a given article, provided he does not threaten the public with any injury. And it may be safely stated that the manufacture of no useful article may be prohibited altogether. If the article can be put to a lawful and rightful use, it matters not how likely it will be used in a way harmful to the public, the right to manufacture it cannot be prohibited altogether. As has been already explained, in setting forth the various regulations that may be applied to trades and occupations,1 the manufacture of the article may be subjected to whatever regulations may be necessary to guard the public against injury in the process of manufacture, or afterwards in a wrongful use of it. Those who engage in its manufacture may be required to submit to a certain examination, in order to ascertain their fitness for the business, and to take out a license, if the manufacture requires such regulations. And if the danger to the public of a wrongful and illegitimate use of the manufactured article be so imminent as to call for such legislation, as seems very likely to happen with reference to the manufacture of dynamite, nitro-glycerine, and other like explosive compounds, the manufacture of it for the purpose of sale, that is, as a business, may be prohibited to all but a few licensed manufacturers or the agents of the State. But if, in the actual manufacture of the thing, without police supervision, as in the case of dynamite, there is no danger to the public, the fact that it can be put to a wrongful use will not justify legislation which probibits the owner of the raw material to manufacture the article which he does not intend to sell, but to make use of in a legitimate way. The manufacture of dynamite may be prohibited, as a business, to all but licensed manufacturers, because his intention to sell makes it very likely or at least possible that the identical stuff will be employed in some unlawful way, but when one manufactures it for his own lawful use, he has done nothing to disturb the public safety.

The regulations concerning the manufacture of metallic money are of this character of police regulations. It is true, that the sole power of coining money is given by the United States constitution to the national government.2 But except as a restriction upon the power of the States, the constitutional provision was not necessary. It certainly was not needed to authorize the prohibition of the manufacture of metallic money by the individual. For whatever scientific objections may be made to such regulations by sociological writers, it cannot be denied that the free and indiscriminate coinage would lead to the perpetration of many frauds on those who are least able to discover them. For this reason, the government reserves to itself the right to coin money, and punishes severely any counterfeiting of the coins of this and of any other country.1 Not only this; but it is also prohibited to any one to manufacture for distribution, as an advertisement, or for any otherwise lawful purpose, any metallic pieces with shape and impressions so resembling the shape and impressions of money coins, that there is danger that they may be made the means of practicing frauds upon the unwary.2

But in all of these cases it is a judicial question, whether the manufactured article is calculated to prove an instrument of trespass on the rights of others, and the prohibition of its manufacture can only be justified by an affirmative answer to this inquiry. The absolute prohibition of the manufacture of intoxicating liquors can only be justified by proof of the fact that intoxicating liquors cannot be put to some beneficial use. This is conceded to be false by all, whatever may be their other views on legislation in aid of temperance, and most of the present legislation permit its manufacture and sale for medicinal and mechanical purposes. If the position of temperance reformers, that the use of intoxicating liquors as a beverage is a wrong or trespass on society, cannot be successfully assailed, then the constitutionality of a law, which prohibited the manufacture of it except by certain licensed manufacturers, or by the State officers, could not be questioned. Although it would be unreasonable to confine its manufacture to licensed agents of the State, merely for the purpose of preventing the sale to habitual drunkards, lunatics and minors—great as that evil is, the number of such purchasers does not bear comparison with the immense number of those who buy and use it in moderation;—still the constitutionality of the regulation could not be attacked, for the necessity of the legislation is a legislative and not a judicial question.1

§ 173.

Carrying of concealed weapons prohibited.—

For the purpose of preventing or reducing the number of street affrays, which, it is claimed, the habit of carrying concealed weapons increases to a most alarming frequency, in most of the States there are now statutes in force, prohibiting the carrying of concealed weapons. Apart from a provision of the constitutions of the United States, and of the several States, which guarantees to every citizen the right to bear arms, there cannot be any serious constitutional objection raised to this regulation. It cannot be questioned that the habit of carrying concealed weapons tends to endanger strife, for the very act indicates the expectation of a possible use for the weapons. The prohibition of carrying concealed weapons is, therefore, an appropriate remedy for the suppression of street affrays. The American constitutions guarantee to every citizen the right to possess and bear arms, in time of peace as well as in war; and no binding law can be passed by Congress or by a State legislature, prohibiting altogether the carrying of weapons of warfare. But the law against the carrying of concealed weapons is not a total prohibition. It is only a reasonable regulation, established to prevent a serious injury to the public in the enjoyment of this constitutional right. It only prohibits the carrying of concealed weapons, and does not interfere with any other mode of carrying them. It is the concealment which is calculated to produce harm to the public. Any one, carrying a weapon for a laudable purpose, will not desire to conceal it. The law against the carrying of concealed weapons has in many cases been declared to be constitutional.1

It has been held within the police power of the government of the State of Massachusetts to forbid the parade of unauthorized bodies of armed men, if exceptions are made in favor of the military forces of the State and of the United States.2

§ 174.

Miscellaneous regulations of the use of personal property.—

In Missouri, a municipal ordinance conferred upon one person the right to remove and appropriate all carcasses of animals found in the city and not slain for food, to the exclusion of the owner. The statute was subjected to judicial construction, and it was held to be unconstitutional, so far as it applied to carcasses, which have not become a nuisance, although not slain for use as food.3 As long as the carcasses of animals are not a nuisance to the public, because of their effect upon the public health, they are as much protected by constitutional guaranties, as are the live animals.

The agricultural communities of the South suffer greatly from the depredations of thieves on the unharvested crop, and particularly from the stealing of cotton. As a means of checking this pillage, a statute was enacted in Alabama, which made it unlawful “for any person to transport or move after sunset and before sunrise of the succeeding day,” within certain counties, “any cotton in the seed,” but permitted the owner or producer to remove it from the field to the place of storage. This was held to be a reasonable police regulation, and not an unconstitutional interference with the rights of private property.1 It is a rather peculiar regulation, and may possibly be open to scientific objection, but it is no doubt constitutional. It is made in the interest of the farmer; and since the statute reserves to the owner or producer the right to remove the cotton after nightfall from the field to a place of storage, the regulation may be considered as being confined to the prohibition of all trading or dealing in cotton after sunset and before sunrise and does not interfere with any other harmless use of it by the owner.

As a part of the general law of the road, it is not unfrequently provided that certain kinds of vehicles shall not be driven or ridden on certain roads and streets. I do not know that the constitutionalty of these laws has ever been questioned, save in the case to which reference will now be made. In North Carolina a law, prohibiting the riding of bicycles on turnpike roads, was declared to be a constitutional exercise of the police power, the frightening of farmers’ horses being the chief reason for the enactment of the law. Doubtless, at the present day, even in North Carolina, and certainly generally throughout this country, the bicycle has become so well known to the horses that the riding of the bicycle has ceased to be a source of danger to the drivers of horses. It is, for this reason, unlikely that this decision would now be sustained by the courts of other States.1 A rule of county commissioners, forbidding the riding of bicycles across bridges, was sustained in Maryland, under the grant of power “to make reasonable rules and regulations for the use” of bicycles.2

§ 175.

Laws regulating use and keeping of domestic animals.—

The common law has always recognized a right of property in domestic and domesticated animals, the keeping of which serves some useful purpose, such as cows, sheep, fowls, horses, oxen, etc.; and now a certain right of property is recognized in every species of animal, which may be subjected to the control of man, whether they retain their wild nature in whole or in part, or whether it is completely subdued. The only difference between the right of property in a cow or other completely domesticated animal and in some wild or half-tamed beast, is the degree of care required in the keeping of them, in order to prevent injury to the public. For the common law required the owner of every kind of animal to so guard and keep him as that no injury should result to another; and gave to the one injured a right of action for damages against the owner of the animal, if he had not exercised that degree of care which in ordinary cases may be required to avert an injury to others.3 Thoroughly domesticated animals, such as cattle, sheep, swine, and the like, which may reasonably be presumed to exhibit no vicious propensity, are at common law permitted to go at large, and the owner is only responsible for damages when he permits the animal to go at large, when he knows of his vicious propensity. For without such knowledge he could not have anticipated any injury to others, and he was therefore guilty of no negligence.4 But all animals, whether tame or wild, are liable in quest of food to trespass upon the lands adjoining the highway; and the owner of an animal incurred at common law a liability for all trespasses made by animals which he allowed to go upon the highway unattended.1 But if one is driving cattle through the highway, as one has a right to do, independently of statute, and one of the animals should get away from the herd, and trespass upon the adjoining land; if he has exercised all the care that may be expected, under the circumstances, from a reasonably prudent man, the owner of the land cannot recover of him for the damage. It is a case of damnum absque injuria.2

Respect for public decency would require the owners of stallions and bulls to keep them carefully housed, and the law may very properly prohibit the keeping and exhibition of them in public places.3

This is a summary statement of the common-law rights of property in animals and their attendant duties. But of course they may be subjected to further statutory regulation, and they have been. In every State the keeping of live stock is under police regulation. In some communities the common-law rule still prevails, that the owners of stock are liable for all trespasses of their stock upon the lands of others, although there is no inclosure about the land, where they allow their stock to roam at large. In other communities the owners of lands are required to maintain inclosures that will be an effective barrier to all trespasses of stock, and a right of action is given for only those trespasses which occur in spite of the inclosure. The clash of interest between stock-raising and farming calls for the interference of the State by the institution of police regulations; and whether the regulations shall subordinate the stock-raising interest to that of farming or vice versa, in the case of an irreconcilable difference, as is the case with respect to the going-at-large of cattle, is a matter for the legislative discretion, and is not a judicial question. In the exercise of this general power of control over the keeping of live stock, the State or municipal corporation may prohibit altogether the running at large of such animals, and compel the owners to keep them within their own inclosures; and provide as a remedy for enforcing the law that the animals found astray shall be sold, after proper notice to the owner, and time allowed for redemption, paying over to the owner the proceeds of sale, after deducting what is due to the State in the shape of penalty.1

A city ordinance was sustained in California, which prohibited the keeping of more than two cows within certain limits of a city.2 But a law was declared to be unconstitutional, which required the owners of lands to exterminate at their own expense the ground squirrels which may be living thereon, and to suffer a penalty if it be not done within a stated time. This was declared to be neither a police, sanitary or kindred regulation.3 The chief objection to this regulation would seem to be its unreasonableness, somewhat akin to the requirement that owners of lowlands shall drain the same at their own expense; except that the damage to crops, instead of injury to health, is the occasion of the regulation.

§ 176.

Keeping of dogs.—

Laws for the regulation of the keeping of dogs are very much more common than the regulation of property in any other kind of domestic animals, and deserve special consideration. The right of property in a dog, although supposed at common law to be less valuable, and consequently less deserving of legal protection, has always been recognized. But in consequence of the tedency to be vicious, the dog’s life has always been somewhat precarious. No one at common law has a right to kill a dog that is doing no harm, and has exhibited no vicious propensities, even though he may be trespassing upon another’s land.1 But not only may one kill any animal damage feasant, if it be necessary for the protection of life and property;2 but also where a ferocious dog, addicted to biting mankind, is suffered to run at large unmuzzled, it is a common nuisance, and any person may kill it, independently of statute; and independently of the question whether it was doing or threatening mischief at the time of the killing, or whether the owner had notice of its disposition.3 But no one has, independently of statute, a right to kill a fierce or dangerous dog, if it is kept on the owner’s premises and not allowed to go at large.4 The State may, however, by statute, provide for the killing of all vicious dogs, and even impose upon the owners the duty and burden of killing them.5

But the duties of the owners of dogs may be and are frequently changed by statute. The following lengthy quotation from an opinion of the Supreme Court of Massachusetts, gives an interesting account of the “dog” legislation in that State, and will serve as an index of similar legislation in other States. It is given in full, because neighborly disputes over dogs are a frequent source of bad feeling and expensive litigation:—

“There is no kind of property over which the exercise of this power (of police regulation) is more frequent or necessary than that which is the subject of the present action. In regard to the ownership of live animals, the law has long made a distinction between dogs and cats and other domestic quadrupeds, growing out of the nature of the creatures and the purpose for which they are kept. Beasts which have been thoroughly tamed, and are used for burden or husbandry, or for food, such as horses, cattle and sheep, are as truly property of intrinsic value and entitled to the same protection as any kind of goods. But dogs and cats, even in a state of domestication, never wholly lose their wild nature and destructive instincts, and are kept either for uses which depend on retaining and calling into action those very natures and instincts, or else for the mere whim or pleasure of the owner; and, therefore, although a man might have such a right of property in a dog as to maintain trespass or trover for unlawfully taking or destroying it, yet he was held, in the phrase of the books, to have ‘no absolute and valuable property’ therein which could be the subject of a prosecution for larceny at common law, or even, according to some authorities, of an action of detinue or replevin, or a distress for rent, or which could make him responsible for the trespasses of his dog on the lands of other persons, as he would be for the trespasses of his cattle.1 And dogs have always been held by the American courts to be entitled to less legal regard and protection than more harmless and useful domestic animals.1

“The damages sought to be prevented by the dog laws of the commonwealth, as declared in the preambles to the earlier ones, are sudden assaults upon persons, worrying, wounding and killing of neat cattle, sheep and lambs, ‘distressing evils from canine madness’ and other injuries occasioned by dogs. These statutes, which have been the subject of repeated consideration and revision by the legislature, with a view of securing these objects, and of affording means for ascertaining the owners and making them liable for the mischievous acts of their dogs, have accordingly not only provided that any person might kill a dog assaulting him, or attacking cattle or sheep, out of its owner’s inclosure; and that the owner should be responsible, in either single, double or treble damages, for mischief committed by his dog; but have also declared that it should be lawful to kill any dog, as to which the requirements of law had not been complied with under circumstances which have varied in successive statutes. At first it was only any dog ‘found strolling out of the inclosure or immediate care of its owner,’ after due notice to him that it was suspected of being dangerous or mischievous; then ‘not having a collar and certified’ to the assessor; and, by later statutes, ‘any dog found going at large, not wearing a collar;’ ‘found and being without a collar;’ ‘being without a collar;’ ‘going at large, and not registered in the town clerk’s office, or the tax on which had not been paid;’ ‘going at large and not licensed and collared;’ or, finally, all dogs, not licensed and collared, as required by statute, ‘whenever and wherever found.’ For the last ten years the statutes have also declared it to be the duty of certain public officers to cause such dogs to be destroyed under the circumstances pointed out; and have given a remedy against the town or county for any injury done by dogs to other domestic animals.

“These statutes have been administered by the courts according to the fair construction of their terms, and without a doubt of their constitutionality. Under the statute of 1812, chapter 146, which required the owner or keeper of any dog to put a collar about its neck, to be constantly worn, with the name and residence of the owner marked thereon, and declared it to be lawful to kill any dog ‘found and being without a collar as aforesaid’ (omitting the qualifications of other statutes, of ‘going at large’ or ‘out of the immediate care of its owner’), it was held that no action could be maintained for killing a dog without such a collar, out of his owner’s inclosure, although under his immediate care; Chief Justice Shaw saying: ‘We think it was the intention of the legislature not to give the owner of a dog a right to maintain an action for destroying him, unless he had, in fact, given that security to the public which the act required.’1 And a person who, instead of killing a dog being without a collar, converted him to his own use, was held liable to the owner in trover, because in the words of Chief Justice Shaw: ‘The object of the statute is, not to confer a benefit on an individual, but to rid society of a nuisance by killing the dog.’2 Similar statutes have been held in other States to be reasonable and constitutional regulations of police.3 The statute under which this defendant justifies provides that the mayor of cities and chairmen of selectmen of towns, shall within ten days from the first day of July, annually, ‘issue a warrant to one or more police officers or constables, directing them to proceed forthwith either to kill or cause to be killed all dogs within their respective cities or towns, not licensed and collared according to the provisions of this act, and to enter complaint against the owners or keepers thereof; and any person may, and every police officer and constable shall, kill or cause ‘to be killed all such dogs, whenever and wherever found.’1 The warrant here provided for, being general in its form, not founded on oath, nor containing any special designation of object, is not indeed a legal warrant of search and seizure; it is rather an appointment of the officer who is to be specially charged with the duty of executing the authority conferred by the statute. The statute makes it the duty of every police officer and constable to kill or cause to be killed, all dogs not licensed and collared according to its provisions, ‘whenever and wherever found.’ There are no express restrictions of time or place, and no limitation, as in earlier statutes, to dogs going at large, or out of the owner’s inclosure or his immediate care. Any restrictions upon the authority of the officer arise by implication, from regard to the sanctity of the dwelling house or the danger of a breach of the peace. But it is unnecessary in the present cases very closely to consider the extent of such restrictions, if any, which are to be implied upon the power and duty of the officer to abate what the law has declared to be in substance and effect a public nuisance. The regulations imposed by the statute upon the ownership and keeping of dogs are reasonable and easy to be complied with. If any dog is an object of value or of affection to his owner he has only to procure and record a license and put on a collar, in order to bring it under the protection of the law.

“It is agreed that neither of the plaintiffs had complied with the statute in these respects, and there is nothing in the facts agreed in either of the cases from which it can be inferred that the defendant committed any trespass upon the plaintiff’s premises, or any act tending to a breach of the peace. Under the defendant’s authority and duty to kill or cause to be killed all dogs not licensed and collared, ‘whenever and wherever found,’ he had clearly a right peaceably to enter for that purpose, without permission, upon the close of the owner or keeper of such a dog, and there kill it.”1

Regulations of this general character are to be found in very many, if not most, of the States. The constitutionality of laws has been very generally sustained, which authorized the killing of all dogs without a collar.2 And it has frequently been held lawful for the State, as an encouragement for the rearing of sheep, to discourage the keeping of dogs by the requirement of a license fee for each dog.3 And conceding the right of the State to require a license fee for the keeping of a dog, which is intended to operate as a check upon the keeping of dogs, the amount of the license is not open to judicial revision. It cannot be confined by judicial intervention to the mere expense of issuing the license. In order to operate as a restraint upon the keeping of dogs, the amount of the license must be large enough to make it burdensome to keep dogs, and, as has been fully explained in connection with the discussion of licenses in general,1 the imposition of such licenses, as a restraint upon the doing of some thing which inflicts or threatens to inflict injury on the public, is free from all constitutional objections.2

In many of the States compensation is given by statute to the owners of the sheep killed by dogs, and a summary proceeding is usually provided for recovering damages from the owner of the dog. But in order to be constitutional, the act must provide for a judicial examination of the wrong done and the damage suffered, with a full opportunity for the owner of the dog to be heard. In New Hampshire a statute of this kind was declared to be unconstitutional so far as it undertook to bind the owner of the dog by the amount of damages, which had been fixed by the selectmen of the town without giving him an opportunity to be heard on the question of damages.3 In Michigan a statute was sustained, which required the money, collected from the enforcement of the tax against dogs, to be kept as a fund for the reimbursement of sheep owners for the losses of sheep, which have been killed by dogs.1

§ 177.

Laws for the prevention of cruelty to animals.—

From a scientific standpoint, perhaps the most curious phase of the exercise of police power is embodied in the laws for the prevention of cruelty to animals. These laws now prevail very generally throughout the United States, and public sentiment is in most communities unusually active in its support, and is not restrained by any difficulty in finding a scientific justification for the law. The enactment and enforcement of the law are prompted by a tender sympathy for the dumb brutes, who while serving human ends are being subjected to cruelty. These statutes are designed, as the language of the statutes expressly indicates, for the prevention of cruelty to animals. Whose rights are protected by the enactment? Those of the animals? Are animals, other than human beings, recognized as the subjects of rights? Cruelty to animals might be claimed as an offense against public morality and the public sense of mercy. But that is in the nature of an afterthought, suggested as an escape from the logical dilemma, with which one is otherwise confronted in the consideration of these laws. Whatever may be said to the contrary, in the enactment of these laws, there is an unconscious, if not admitted, recognition of legal rights in the dumb animals, who are subjected to man’s dominion. They are by such legislation placed in the same legal relation to the freeman as the slave was in the days of slavery. Both are the property of the freeman; the master’s power of control was limited only by just such laws, as the one now under consideration, which were designed to prevent cruelty in their treatment. It is the torture to the animal that is prohibited, wherever it was done.1 If the law was considered and justified merely as the prohibition of an offense against the public sense of mercy, and involved no recognition of rights in the dumb animals, the operation of the law would have to be confined to public acts of cruelty, such as unmerciful beating on the streets and other thoroughfares. But it is plain that the ordinary law for the prevention of cruelty to animals is broken as much by cruel treatment in the stable as in the public highway; whether done in the presence of a large assembly, as in the cock-pit, or with no others present than the person whose anger or pure maliciousness induces the act of cruelty. The animals so protected must be recognized as subjects of legal rights. And why should they not be so recognized? Is it not self-conceit for man to claim that he alone, of all God’s creatures, is the possessor of inalienable rights?

The powers of these societies for the prevention of cruelty to animals are not limited to the prevention, and the prosecution of persons guilty, of acts of cruelty towards the dumb animals. They are, likewise, authorized to apprehend disabled animals, and, if they are incurable, to destroy them in the most expeditious and the least painful manner. Here, as elsewhere, wherever public officers are authorized for various reasons to kill animals belonging to private individuals, the agent for the society for the prevention of cruelty to animals is authorized to kill hopelessly disabled animals, without the previous consent of, or notice to, the owner.2

The medical profession has frequently been assailed by these societies and by private individuals, for their practice of vivisection. Anti-vivisection societies have been formed in England and in this country for the purpose of securing laws for the prohibition of vivisection; so far, I believe, without success. The constitutional question, which would seem to be involved in such proposed prohibitory legislation, is not difficult to solve and answer. The criminal or immoral element in acts of cruelty, is not the infliction of pain, but the infliction of pain without just cause or excuse. When a steer is knocked in the head, and his throat cut, in order that he may be converted into beef for human consumption, pain is inflicted; but it is not a wrongful act of cruelty, either in the domain of law or of ethics; because the motive of the act, viz.: provision for the sustenance of a more valuable human life, being held by everyone, but vegetarians, to be both just and laudable, justifies the infliction of the pain and the taking of the animal’s life. A butcher is not to be classified in this respect with the driver who in a fit of passion knocks his horse in the head, because it cannot draw the overload which has been put in the cart. According to prevalent public opinion, the butcher does praiseworthy, or at least, an unblameworthy act, when he knocks the steer on the head; while the driver deserves the condemnation of the community, and the punishment provided by law, when he inflicts the same pain upon his overloaded horse. The element, which differentiates the two cases, is the motive with which the blow has in the two cases been given.

The same principle of differentiation is applicable to, and should alone determine, the right or wrong of vivisection. The boy, who tortures a cat by tying a tin can to its tail, cannot be judged by the same norm, which determines or should determine the moral character of an original investigator who flays a live cat or rabbit, in the pursuit of scientific knowledge, which, when gained and thoroughly established by such investigations which can alone be pursued with the aid of vivisection, will promote the health and happiness of the human race. The boy ought to be spanked; the physician, praised and commended.

Regulation of the practice of vivisection is profoundly different from its prohibition. Laws, which permitted vivisection, wherever its practice tended to promote the welfare of the human race by the extension of medical and biological knowledge, and prevented and punished resort to the practice, whenever it was pursued by laymen for the gratification of a love of cruelty or an idle curiosity, would be absolutely free from constitutional objection; and would be in perfect harmony with the ordinary laws for the prevention of cruelty to animals.

§ 178.

Regulation of contracts and rights of action.—

The validity of an ordinary contract cannot be impaired by State legislation, for it is protected from such an attack by an express provision of the Federal constitution.1 Any law, therefore, which changes the character of the obligation, either by diminishing or increasing its burden, is void because it impairs the obligation.2 The obligation of the contract, which is thus protected from impairment, is civil and not moral; that is, the contract must be legal, according to the provisions of the law in force when the contract was made, in order that it may claim this protection. An illegal contract creates or supports no rights, in short has no legal existence.3 It will not be necessary to explain in this place how far laws may be enacted for the regulation of subsequent contracts, for this matter has been fully discussed in another connection.1 Nor is it necessary or appropriate to explain here in detail what is included under the term “contract,” in the sense in which the word is used in the constitutional provision referred to.2 The term contract is here employed in the sense of “executory contract,” an agreement between two or more, for a valuable consideration, to do or give something.

This means that there must be words of positive contract, so that a clear and positive obligation has been made; and that obligation must have been supported by some valuable consideration. Thus, for example, if a statute, which in one section declares that the revenues of a city “shall” be devoted to the liquidation of obligations for current expenditures, provides in another section that the surplus revenues “may” be applied to the payment of indebtedness of former years; the latter provision, in which the permissive “may” was employed, did not create any binding obligation, which may not be impaired by a subsequent repeal of the statute.3 And, in illustration of the necessity of a valuable and substantial consideration, in order that a contract may be protected by the constitutional provision against the impairment of the obligation of a contract, the following case may be consulted. It holds that the acceptance of a gratuitous trust does not constitute such a contract, as that it would in a constitutional sense be an impairment by a statute, subsequently enacted, which provided for the allowance to such a trustee of compensation.1

Two recent cases from the Supreme Court of the United States may be referred to in illustration of the retrospective and prospective operation of a statute, which is held to impair the obligation of a contract. In one case,2 the facts were these: A Texas statute of 1854 made grants of land to certain railroads. Subsequently, the charter of a certain railroad was amended, so that the privileges of the act of 1854 may be accorded to it, provided the railroad in question was confined to a prescribed route. This road was sold under foreclosure of mortgage, and transferred to a new company, which had been incorporated to operate the road. By the act of July 27th, 1870, this new company was authorized to abandon the old route of the road and to construct a new roadbed. The Constitution of 1869, however, prohibited the grant of public lands to any railroad. It was held that the constitutional prohibition applied to the new road, and avoided any grant to it of public lands; while it did not affect any of its rights derived from the contract of the State with the old company. In a subsequent case3 under a similar grant in 1866 of public lands to the railroad in question as a part of the charter contract, the railroad had not completed their entire authorized line, and had not acquired the title to all the land to which it was entitled under the land grant act, when the constitution of 1869 went into operation. The court held that the constitutional prohibition could not apply to that part of the land grants to that railroad which were still incomplete without impairing the charter contract. Any such application of the constitutional prohibition was void and of no effect.

The constitutional provision against impairing the obligation of contracts is held to be binding only upon the States. But there can be no doubt that similar action by Congress would likewise be unconstitutional, because it would deprive one of his property without due process of law.1

Very little difficulty is ever experienced in determining when and to what extent an enactment impairs the substantive rights of parties to an existing contract; and when such an impairment of the obligation of a contract comes within the constitutional inhibition. The rule is very plain that no impairment of the substantive rights under a contract is permissible by subsequent legislation. A few examples, drawn from recent adjudications, will amply illustrate this portion of the subject.

Where a city and a railroad enter into a contract that the expense of maintaining and repairing a viaduct shall be divided between them, with no limitation as to the amount of the aggregate expenditure for that purpose, the State, in the exercise of its ordinary police power, reserves to itself the power to determine the amount that must be expended in the maintenance and repair of the viaduct; and may increase the burden to the company far beyond the expectations of the company, without violating the constitutional provisions as to the inviolability of contracts.2 So, also, inasmuch as the right of inheritance of property from a decedent rests absolutely upon a legislative fiat, and is not supported by any principle of absolute or natural right,3 it has been held, and rightly held, that a statute, which provides for escheat, after personal notice to all known claimants, and notice by publication to all unknown claimants, is not unconstitutional as an impairment of the obligation of a contract.4 The well-known case of the Charles River Bridge v. Warren River Bridge,1 may likewise be cited in this connection. In that case, the facts were these: The Charles River Bridge Company had been authorized to establish a bridge across the Charles river, and to charge toll for its use by the public. Subsequently the legislature of Massachusetts authorized the construction of a second and parallel bridge, known as the Warren River Bridge. The construction of the second bridge impaired the value of the first bridge franchise by the serious diminution of its profits, and ultimately destroyed its value; inasmuch as the second bridge was to be opened to the public free of charge, some time before the expiration of the franchise of the earlier bridge. The Supreme Court of the United States held that the charter rights of the Charles River Bridge Company had not been impaired in the constitutional sense by the grant of franchise to a competing bridge company; on the ground, that no grant of a public franchise, like that of a bridge, will be presumed to be an exclusive monopoly, in the absence of an express legislative declaration to that effect; and that the incidental injury, proceeding from the grant of a second competing franchise, does not constitute an impairment of the obligation of the charter contract with the earlier bridge company.

But contracts with public corporations, like a city or county, no less than contracts with private parties, are protected by the constitutional inhibition of laws impairing the obligation of contracts. For example, laws which impose upon cities and towns a limitation of their power to contract debts, or which direct the observance of certain requirements in order to incur a legal liability, can never have a retrospective effect, so as to affect the validity of antecedent debts which have been incurred in full compliance with the then existing law. Thus, a constitutional provision, which limits the lawful indebtedness of a city or town to ten per cent of the assessed valuation of the real estate within its limits, cannot be applied, so as to invalidate contracts with the city or town which were made prior to the adoption of this constitutional provision. The fact, that it was a constitutional amendment instead of an ordinary statutory enactment, made it no less an unlawful violation of contractual rights.1 And so, likewise, a law is unconstitutional which requires that a vote of the taxpayers shall determine whether the debts of an old municipal corporation shall be assumed by its successor, which is provided for by a general reincorporation of cities and towns. Such a law impairs the obligation of an existent contract which would be enforced against the succeeding municipality, without any vote or other approval or assumption of the debt.2 On the other hand, it has been held that where an existent county is divided into two new counties, there is no impairment of the obligation of contract, if the existing county debt is proportionally divided between the two new counties.3

Where a city enters into an agreement with a contractor for the construction of sewers in certain named streets the contract cannot be subsequently annulled by ordinances, even though the ordinance of abrogation be passed before any of the work be done.4 So, also, is it unconstitutional to make the repeal of an existing law, under which claims for damages to property arising from the opening of new streets were to be adjusted, apply to pending suits which have been carried so far to completion as to have secured an appraisal and judicial approval of it.1 So, also, is it not permissible to change by subsequent legislation the order previously prescribed, in which warrants should be paid by the city treasurer out of the funds of the city. Such a statutory change would constitute an unlawful impairment of the obligation of the contract of the city, which is evidenced by the warrant.2

Contracts, creating liabilities on the part of private individuals to public or municipal corporations, are equally protected from impairment by subsequent legislation. A State law, which releases a State officer and his sureties on his official bond from liability to a township, is unconstitutional and void.3

Another important phase of the protection of contracts from impairment by subsequent legislation, is found in the application of the constitutional principle to the effect of judicial construction of the validity of a contract. It has thus been held that, where a State Supreme Court has declared a statute to be valid, which determined the validity of certain series of contracts, and parties have entered into these contracts in reliance upon the decision, so rendered in favor of their validity, there would be an unconstitutional impairment of the obligation of a contract for the court to reverse its decision in respect to the validity of the statute, and in consequence to declare invalid any contract of the series, which they had sustained in their earlier decision. But the rule of stare decisis would not thus control the decision of the court in respect to the validity of another similar but different statute.4 But it is only the decision of the court of last resort of a State, which will have the effect of estopping the State from subsequently questioning the validity of bonds and other contracts, which have been made, in reliance upon the decision. The favorable decision of a nisi prius, or of an intermediate appellate court, will not have the effect of making the contracts and debts secure against a reversal of the judgment in a subsequent case.1

Inasmuch as the law prohibits the individual from redressing his own wrong, he is entitled to an appropriate action in the law courts of the country. A denial of this right of action would be as much an interference with the right that has been violated, as the original trespass was. If the violated right is a broken contract, an absolute refusal of all remedy would impair the obligation of a contract in a constitutional sense, and the law taking away all remedies would be void.2 For a like reason, a law, which would take away all remedies for the violations of other rights, whether of persons or of property, would appear to violate the legal sanctity of the substantive right. If it be a right of property that has been transgressed, the deprivation of the right of action would be an interference with vested rights; and so also would it be an infringement of one’s personal security, if a right of action was denied for a trespass upon one’s person or liberty. But it has been held by the United States Supreme Court that a constitutional convention of a State may take away existing rights of action, provided the obligation of a contract is not impaired, or a punishment inflicted.3 There is certainly no express provision of the constitution which protects these rights of action from interference by legislation; but it would seem to us that the constitution protects from undue interference the right to resort to the courts for redress of one’s wrongs, as much as it does the right to pursue a harmless occupation. They are equally essential to the pursuit of happiness. It would be an act of tyranny for a government to deny the right to redress one’s own wrongs, and at the same time to refuse an appropriate remedy. It is probable that the Supreme Court would have decided differently, if the constitutional provision under consideration had had reference to other rights of action than those growing out of the conflict of war.

The cases are very few in which even an apparent denial of all remedy would be permitted to apply to existing contracts. Where, however, no right to a remedy can be claimed, independently of an express statutory authorization, as in the case of a claim against a State government, it has been held by the Supreme Court of the United States that a law, repealing a statute which provided for the adjudication and auditing by the courts of claims against the State, did not constitute, when applied to existing claims, any constitutional impairment of the obligation of the contract. And, even when this conclusion has been reached by the State courts, through an erroneous construction of the operation of the supposedly repealing statute, the Federal courts will not interfere to correct the error.1

On the other hand, it has been held that there is no violation of the vested rights of a defendant, if a statute, providing for the survival of causes of action for personal injuries, which otherwise abated at the death of the plaintiff, is made to apply to all existing causes of action of that kind, whether suit has been or may hereafter be brought.1

The right of appeal to a higher court is never considered so essential a part of the remedy that it may not be granted, taken away or enlarged, without impairing the substantial rights of parties to a contract. These changes in the right of appeal may be made at the discretion of the legislature. The citizen has no vested right in an existing right of appeal.2 It is also permissible for a legislature, without impairing the obligation of a contract, to grant the right of appeal to cases which involve a given amount in value and over, and to deny the right in cases, in which the amount involved falls below the stated limit.3 On the other hand, there is no impairment of the obligation of a contract, if a statute, granting the right of appeal where none existed, or extending an existing right of appeal, is made to apply to an existing contract or cause of action.4

As long as a substantial remedy is provided, the character of it may be changed at the pleasure of the legislature; and when it applies to the enforcement of a contract, such a change, however material, will not be considered to impair the obligation of a contract, even though the change is to a less desirable or convenient remedy.5 The most radical changes are permissible, as long as a substantial remedy remains. It is not considered to be a right, privilege or immunity of citizen, guaranteed either by the national or State constitution, to employ any particular form of action in the prosecution of a claim.1 It is fully within the competency of the legislature to prescribe the form of complaint, as well as the form of action.2 And this is true, even though the new remedy or form of action may be more summary and expeditious.3 The only limitation on the power of the legislature to change the remedies or forms of procedure, and to apply the new remedy or form of procedure to existing causes of actions, is that the change must not work any denial to the reasonable enforcement of any substantive rights of the parties litigant.4

A law may take away from existing contracts the right to confine the debtor, and yet not impair the obligation of the contract. “Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. But the State may refuse to inflict this punishment, or may withhold this means, and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair the obligation.”5 In the same way, an altogether different remedy may be provided without taking away any existing remedy; as, for example, where a statute imposed a penalty on a lessee for continuing in possession after the termination of the lease; its application to existing leases was held not to constitute an unlawful impairment of the obligation of a contract.1

So, also, has it been held that it constitutes no impairment of the obligation of a contract, in a place where a party has contracted to furnish water to a city, if a subsequent statute makes the violation of these contractual obligation a criminal misdemeanor. By entry into these obligations to furnish water, the party has assumed a public duty, the violation or non-performance of which merits the severest punishment.2

Changing the locus of the suit for ejectment does not violate any constitutional provision; as where a new law authorizes a suit in ejectment to be brought in a county, other than that in which the land concerned lies. It is said that there is no vested right in the defendant to have the case tried in the county where the land is situated, or by a jury of that county.1

As long as the changes in the forms and rules of procedure do not interfere with the reasonable enforcement of the substantive rights of the parties, it cannot be said that the application of the new forms, or the new rules, to existing contracts and causes of action, constitutes an impairment of the obligation of a contract.

The service of process, on all persons whose rights and interests will be affected by a decree, is a fundamental requirement of justice. Any gross or plain violation of this fundamental requirement would certainly be in violation of the spirit, as well as of the letter, of the constitution, as it has been held in a number of cases. And, in ordinary cases, i. e., in the case of persons who live within the reach of the process of the court, nothing but personal service would answer the requirement of the constitutions. Service by publication or posted notice, in the case of residents of the State, in which the court has jurisdiction, could not be authorized by statute. Such a statute would be unconstitutional, because it would constitute an unlawful impairment of the obligation of a contract.2 Thus, the Ohio registration land act of 1896, was held to be unconstitutional, because it provided for service by publication on all persons, interested in the title to a tract of land, who resided outside of the county.3

But where persons, who are interested in the subject-matter of the suit, reside beyond the jurisdiction of the court, personal service is impossible; and if no substitute were permitted, there would be a frustration of justice in many cases, unless the statute dispensed altogether with the service of notice on non-residents, and allowed judgment to be entered up, without notice of any kind, which would be binding upon the non-resident parties. Service by publication and by mail is provided as a substitutive process in such cases, i. e., in the case of non-residents, the additional service by mail being required in every case where the address of the non-resident party is known. The substitutive service of process by publication, in the case of non-residents, has been uniformly declared to be constitutional; at least, where there is property within the jurisdiction of the courts, against which a successive levy might be made in the enforcement of the judgment of the court.1 But it is not denied that service by publication is insufficient in other cases. It is an universal, and, so far as I know, an unquestioned rule, that service by publication against a non-resident will give a court full jurisdiction to render a decree of divorce, where the party plaintiff is a bona fide resident of the State.2 It has been held in New Jersey, that service by publication is sufficient to fasten a personal judgment upon a non-resident, in a suit in which he is jointly liable with one or more residents.3

But every one, who may be interested in the results of an action, need not be served with process, if he is legally represented by those who have been served. Thus, where suits for the enforcement of claims against a decedent are brought against executors or administrators, it is not necessary that the widow and heirs of the deceased should be made parties, even though the suit be for the foreclosure of a mortgage on the so-called community property; i. e., property which had been owned jointly by the husband and wife, during the life of both.1

It is not an uncommon statutory provision, that in certain cases the plaintiff shall give security for costs, as a condition precedent to the maintenance of the suit. This requirement is held to be constitutional, and not to constitute a denial of justice.2 It has also been held to be constitutional to tax the costs of a criminal prosecution upon the prosecuting witness, if it should prove to be a case of malicious prosecution, and to commit him to jail, until he pays them.3

In the State of Washington, a statute was held to be unconstitutional as class legislation, which provided that the plaintiff shall recover attorney’s fees in all actions for injury to stock by railroad companies; no general provision being made for the recovery of attorney’s fees in other and similar actions.4 But the contrary opinion was reached by the Supreme Court of Illinois in a case in which the statute provided for the payment of a reasonable attorney’s fee to the successful plaintiff in all suits by servants for the recovery of wages, which have been brought only after a previous demand in writing for payment. The statute was held to escape the constitutional condemnation of class legislation.5

The statutes, which provide for the claim and enforcement of mechanics’ liens, in favor of workmen, who have expended labor upon the property, and of the material men, who have furnished supplies, furnish a number of opportunities for raising constitutional questions. Where the property is owned by the person who has employed the workman, or who has ordered the materials which have been used in the repair or improvement of the property, and the title to the property is in such a person, free and clear of all other liens and mortgages; the case is a very simple one, and furnishes little or no opportunity for doubt of its constitutionality. On the other hand, the grant of such a lien involves the creation of so vested an interest as that the repeal of the statute authorizing it will not, and cannot, affect the life and vigor of a lien which has been acquired under the statute prior to its repeal.1 But where the property, against which the lien is lodged, does not belong to the person who contracted for the supplies or labor, or where it is already subjected to other adverse claims or liens, the conflicts of rights become more imminent, and constitutional questions more likely. Thus, most of the mechanics’ lien laws authorize the filing of liens for labor and materials against property upon which they have been expended, where an independent contractor stands between the property owner and the laborers and material men, and with whom all the contracts have been made. The cases are unanimous that the provision for such a lien in such cases is not an unconstitutional interference with contract or vested rights, where the statute is not given a retroactive effect, in order to apply to contracts which are made prior to the enactment of the lien law.2 And it does not offend the constitutions, if the statute requires the contractor to give the property owner a bond of indemnity, upon which recovery might be had on motion for any judgment which might have been obtained against the property owner in the enforcement of mechanics’ liens, provided the contractor be given an opportunity to contest the claim.1 In the Missouri case2 it was held that the law was not unconstitutional, although the lien was granted to laborers and material men, irrespective of the condition of the account between the contractor and the property-owner, or the amount of the lien in relation to the sum due to the contractor. But the United States Circuit Court, in one case, held that both facts should be considered in the enforcement of the lien, so that the property should not in any event be thus subjected in the aggregate to any amount larger than the contract price of the improvements; and that where payments have been made to the contractor before the filing of the lien, that amount should be deducted from the contract price, in order to determine the amount for which the property can be held liable in the enforcement of such liens. The court held a lien law to be an unconstitutional interference with contract rights, which disregarded these principles.3

Still, it must be admitted that the position taken by the Missouri court is generally supported by the other State courts, except that it has been held to be unconstitutional to grant liens to workmen and subcontractors on contracts, which have been made prior to the enactment of the lien law.4 It has thus been held to be permissible to enforce a lien in favor of laborers, without giving the property owner any notice whatever of the claim for wages against the contractor; the only effect of the want of notice being that a judgment against the contractor will not be conclusive against the property owner as to the amount of the claim.5 On the other hand, the requirement of notice is so favored as that a statute, amending the existing lien law, which requires notice to be given to the property owner, may be given a retroactive effect, to apply to contracts which are made, but unperformed, prior to the enactment of the amendatory statute.1 A statute of Alabama was held to be unconstitutional, as a taking of private property, which provided that, where the property owner had not notified a material man not to furnish supplies to the contractor, the failure to give such notice in writing would be prima facie evidence that the materials had been ordered by and with the consent of the owner.2

Another occasion for conflict of rights and the raising of constitutional questions, in the imposition of mechanics’ liens, arises when the property is already subjected to some other lien or mortgage; and the attempt is made under the law to give priority to the mechanics’ lien over the existing liens and mortgages. In Minnesota, it has been held that the mechanics’ lien law was unconstitutional, as an interference with vested rights, in so far as it gave priority over such earlier liens and mortgages to the later mechanics’ lien.3 But other cases from the far western States maintain that the provision for such priority of the mechanics’ lien does not impair the obligation of a contract or interfere with vested rights, in the constitutional sense; and they hold that the lien law is not unconstitutional for that reason.4 In Missouri, a statute was declared to be constitutional, which provided that the debts of an insolvent, which were contracted for labor, should have preference over other debts, by complying with certain requirements of the statute.5 The position of these latter courts seems to me to be sound. Inasmuch as all artificial values are the product of the combination of labor and materials, it is natural to presume that when labor or materials have been expended upon a piece of mortgaged property, the value of the security has been enhanced to the value of the labor, or of the materials, or of both, which have been expended upon the property. Where the debtor has not paid for this labor or for these materials, the prior mortgagee or lien-holder has not, in theory at least, suffered any damage by the grant of a prior lien to the laborer or material man; for, after deducting the wages and cost of material from the present value of the improved property, the remaining value of the property is exactly what the whole value would have been, had not the improvements or repairs been made.

Where mechanic’s liens are imposed upon property by statute, they would be of little value, if provision was not made for enforcing them against the property, after a sale of the land. These statutes usually require that the claims should be proven and filed, so that a subsequent purchaser will have notice of the existence of the liens and of the claims which support them. It would seem at least unjust, if not unconstitutional, to enforce mechanic’s liens against bona fide purchasers of the property, if no provision is made for filing them in a public office, whereby an investigation may reveal their existence to the purchaser. The absence of such provision would make every purchaser of property take it at his peril. It has, however, been held in the State of Washington, that a law was constitutional, which declared it a conclusive presumption that a purchaser of property was not a bona fide purchaser, if he should fail to see to the settlement of any claims for wages for which liens upon the property, in accordance with the statute, may be filed within thirty days after the purchase and transfer of the property. The lien law in that State gave claimants thirty days, in which to file their claims for securing the lien of the property; when under this provision of the statute, the lien would date back to the day of contract, and take priority over the title of a subsequent purchaser for value. The practical effect of the statute was to suspend the settlement of all contracts for the sale of property, for thirty days, in order to protect the purchaser against liens which may be subsequently filed against the property. The court held the law to be constitutional.1

In connection with the enforcement of mechanics’ liens, the Alabama statute provided that the lien should cover a reasonable attorney’s fee. But the Supreme Court of the State held this provision to be in conflict with the State constitution.2 A contrary opinion was reached in a similar case in Montana.3

Somewhat similar to the imposition of attorney’s fees for non-fulfillment of contracts is the provision of a penalty for non-performance of a contract or of a contractual or other obligation. And yet it is different. If the sum recovered under such circumstances be an approximate compensation for the damages which have been suffered on account of the breach of the contract or the non-performance of some legal duty, it is only a reasonable provision for indemnity against loss. But if the sum recovered bears no relation to the damage suffered, then it is in the strict sense of the term a penalty and punitory in character, which it would seem that the parties could not provide for justly by an express stipulation in the contract. For, so opposed was and is equity to the enforcement of a stipulated penalty, that it will furnish relief from the enforcement of such a penalty in every case, in which the actual damage suffered can be computed with reasonable accuracy. Thus a statute, which provided as a penalty, for the nonpayment of an insurance policy within the time prescribed in the policy, twelve per cent of the amount recoverable on the policy, in addition to attorney’s fees, was held to be unconstitutional.1 On the other hand, a statute was sustained in Nebraska, which provided for the recovery of a penalty, if the mortgagee refused to discharge a chattel mortgage which had been paid.2

The rules of evidence may also be changed without affecting the substantive rights involved. No one can be said to possess “a right to have one’s controversies determined by existing rules of evidence.”3 These rules are always subject to change and modification by the legislature; and a new rule can be made to apply to existing rights of action, without interfering with vested rights, or impairing the obligation of a contract. Thus, a law could apply to existing rights of action, which permitted parties in interest to testify.4 So, also, is it constitutional for a statute to deny the admissibility as evidence of the application for life insurance, where the application and its contents have not been made a part of the policy by actual attachment thereto of a copy of the original.5 In the same way may a statute apply to existing rights of action, which changed the burden of proof from the plaintiff to defendant; as, for example, where a tax title is made by statute prima facie evidence of a compliance with the regulations for the sale of land.6 On the same grounds it has been held to be constitutional for a law to provide that the failure of a bank, within thirty days from the time that a deposit has been received, shall be prima facie evidence of knowledge of insolvency at the time when the deposit was made.1 On the other hand, a law of Alabama was held to be unconstitutional, which by creating a prima facie presumption, threw the burden of proof upon the property owner, that he did not order or assent to the order of labor or materials which had been expended on his property by a contractor, in every case in which he had not in writing notified the parties dealing with the contractor of the want of authority.2

But a statute cannot preclude the right to a judicial examination into the facts of a case, by making a certain set of circumstances conclusive evidence of the existence of the right of the plaintiff to recover or to be nonsuited. Except in the case of estoppel, where a man is denied the right to question the truth of his representations which he has made falsely to another’s hurt, there can be no prejudgment of one’s rights by the creation of conclusive presumptions.3 For this reason, a tax deed cannot be made conclusive evidence of facts, such as compliance with the statutory requirements for the advertisement of the property or the making of proper parties, and the like. The deed may be declared to be prima facie evidence, but not conclusive, without violating constitutional principles.1

In the illustration of the operation of statutory estoppels, reference may be made to a Missouri statute, which provided that in suits on fire policies, thereafter issued or renewed, the insurance company would not be permitted to deny that the property was worth the amount of the policy, at the time that it was issued. The deed was declared to be constitutional.2

The ordinary rule of oral evidence is that it must be given by the witness in the presence of the jury and court. The appearance and manner of the witness on the stand, as well as the opportunity for cross-examination by the opposing counsel, increase the value of his testimony. The absence of a material witness is generally recognized as a good ground for asking a continuance of the case; and one continuance is ordinarily granted as a matter of course. A Missouri statute, however, was sustained as constitutional, which authorized a court in a civil action to refuse a continuance on account of an absent witness, when the opposing counsel admits the facts, which this witness was expected to testify to.3

It has also been very generally held to be no impairment of the substantive rights of action, if a law should be enacted exempting certain property of the debtor from execution, to an extent not permitted when the contract was executed or the judgment was obtained. “Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy to be exercised or not, by every sovereignty, according to its own views of policy or humanity. It must reside in every State to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and well being of every community.”1

It has, for example, been held to be constitutional to provide for the widow of a deceased insolvent an allowance of one thousand dollars out of the estate.2 But, of late, there has been a change in the current of judicial opinion; and the tendency now, in some of the courts, is to deny the constitutionality of the changes in the exemption law, which are made to, and so far as they do, apply to existing contracts.3 For example, a South Dakota statute, which provided that the amounts, falling due on a policy of life insurance, “heretofore or hereafter” issued and made payable to the estate of the insured, shall to the extent of five thousand dollars inure to the benefit of the widow, or husband, or minor children, free from the claims of creditors. The court held the statute to be unconstitutional, as an impairment of the obligation of a contract, so far as it was made to apply to antecedent transactions.1

So, it has been held, that homestead laws cannot be made to restrict the right of execution on existing contracts, where there had previously been no homestead law.2 But a homestead can be claimed against judgments which are procured on existing rights of action arising out of torts; since these claims do not become debts until they are reduced to judgment.3

Naturally, an act which exempted all the property of the debtor from execution, would, like the law which deprived the creditor of all remedies, be void, because it impaired the obligation of a contract.4 In those States, also, where the constitution expressly prohibits special legislation, the exemption law, to be constitutional, must apply uniformly in behalf of all classes of debtors. A statute, which exempted certain enumerated property to the value of five hundred dollars, where the execution was issued on a judgment for labor, other than professional services, was declared in Michigan to be unconstitutional as special or class legislation.5

For the same reasons, i. e., that it constituted an impairment of the obligation of a contract, has it been held to be unlawful to provide new defenses, and to apply them to existing contracts. This was the conclusion reached in a case, in which a new defense was given to the process of garnishment.6 On the other hand, a statute was held to be constitutional, which removed the ground under which a pending attachment was issued and levied.1 A more rational case, in which a conclusion similar to that in the last case was reached, is that of denying the validity of a garnishment process which was issued against an assignee for the benefit of creditors after the assignment, and before the enactment of a statute which cured some defects in the assignee’s bond. It was held that the garnishment under those circumstances gave the garnishee plaintiff no rights which the legislature could not abrogate by this curative statute.2

Another interesting phase of the regulation of rights of action is involved in the enactment of bankruptcy and insolvency laws. The power of the United States, by the enactment of bankrupt laws, to provide for the release of the debtor from his contractual obligations on the surrender of his assets to his creditors, cannot be questioned, because the power is expressly given by the Federal constitution.3 And it has been settled by the decisions of the United States Supreme Court that the several States may provide similar legislation, subject to the paramount control of Congress. When there is a Federal bankrupt law, it supersedes the State law of insolvency; but the latter comes into operation again upon the repeal of the national bankrupt law.4 But the State insolvent law, not being authorized by an express constitutional provision, cannot be made to apply to existing contracts, since they cannot be considered as having been made in contemplation of such a law. State insolvent laws can only apply to future contracts.1

In the absence of a national bankrupt law, the making of preferential assignments for the benefit of particular creditors is a fruitful source of contention. In most of the commercial States, they are either prohibited altogether, or they are subjected to strict statutory restrictions and limitations. But there seems to be no doubt of the constitutionality of a law which authorized such preferential assignments, or which directly gave preferences to certain classes of creditors; at least, so far as the statutes apply only to future contracts.2 On the other hand, it has been held in Tennessee to be beyond the power of the legislature to prohibit all preferential transfers of property to satisfy certain debts, without regard to the solvent or insolvent condition of the debtor. The debtor was held to have a constitutional right to transfer property in satisfaction of specific debts, and the prohibition of the preferential assignments must be limited in its application to cases of insolvency.3

An assignee for the benefit of creditors has no vested right in his office, and he may by statute be removed without cause.4

The property of insolvent debtors is frequently placed in the hands of a receiver, who is appointed by the court, and who administers the property for the benefit of creditors and of the debtor, under orders of the court. The receiver customarily makes contracts in relation to the property, incurs liabilities and sometimes borrows money. Where all of these things are done by him in conformity with the orders of the court, these liabilities constitute a first lien upon the property in his hands, which must be first liquidated before the creditors receive any payments. Naturally, where the receivership is vacated, without the sale of the property and distribution of the proceeds among the creditors, and the property is restored to the owner, the liabilities which have been incurred by the receiver must be provided for. A statute which provides in such a case that the claims against the receiver must be paid by the owner is clearly constitutional, in every case in which the original appointment of the receiver was lawful.1

While a law would be invalid which denied to one all remedy for the redress of his wrongs; and while resort to the courts for a vindication of one’s rights may be considered as an absolute right, which cannot be arbitrarily taken away; it is nevertheless true that it is not the duty of the State to keep its courts open indefinitely for the institution of private suits. It has performed fully its duty to the citizen, when it has opened its courts to him for a reasonable time after the right of action has accrued. It is also injurious to the public welfare to permit suits upon stale claims; for the permission of them gives an opportunity for the perpetration of fraud and the infliction of injustice, in consequence of the intermediate loss of evidence and death of witnesses, which prevent the defendant from meeting and disproving the claim of the plaintiff. For these reasons it has for time immemorial, and in all systems of jurisprudence, been considered wise and proper, by the enactment of statutes of limitation, to compel all rights of action to be prosecuted within a reasonable length of time after the action has accrued. And it is also the settled rule of American constitutional law that the amendments to the statutes of limitation can be made to apply to existing contracts without impairing their obligation in a constitutional sense, provided after the enactment a reasonable time is given for the institution of the suit.1

Some late cases reveal some interesting illustrations of this principle. A Nebraska statute was held to be constitutional, although it provided that no action shall be brought against counties for failure to keep highways and bridges in repair, unless it is commenced within thirty days after sustaining an injury therefrom.2 A Denver ordinance, which required any one injured upon the streets to give the mayor or city council a full notice of the injury in writing within thirty days after receiving the injury, in order to hold the city liable, was held to be constitutional.3 On the other hand, a statute was sustained which prohibited parties to contracts from limiting by express agreement the period in which suit on the contract may be brought shorter than two years, and which provided that no stipulation shall be valid, which requires notice of inquiry to be given in a less time than ninety days.4

Two cases seem to be in opposition to the general rule as just stated in the text, viz.: that an amendment to the existing statute of limitations may be made to apply to existing causes of actions and contracts, provided a reasonable time be given, within which suit may yet be brought on the existing contracts. In New Jersey, it has been held that changes in the existing statute of limitations can not apply to antecedent obligations.1

If the existing statute of limitations has run completely against a certain contract or obligation, no amendment thereto can extend the period in which suit might be brought on such a barred cause of action. The retroactive operation of such an amendatory act would be an unconstitutional impairment of the obligation of a contract.2

The judgment is the final form of every cause of action, which is contested; and it is said that in every essential sense, the judgment is a contract, which is as much protected against impairment by subsequent legislation as is the original contract or cause of action, which by reduction to judgment becomes merged therein. The laws, therefore, which control the effect and operation of a judgment, cannot be changed by legislation subsequent to the rendition of the judgment, and retroactively change the rights of the judgment creditor. Thus, a law which authorizes the reopening of a judgment, which has been taken in the absence of the defendant, was amended to include judgments which have been rendered upon the verdict of a jury; and the law as amended was made to apply to a judgment on a verdict, which had been rendered prior to the enactment of the amendatory statute. It was held that the amendatory statute was unconstitutional and void, so far as it was given this retroactive effect. It was valid only so far as it was applied to future judgments.3 And, while the statute of limitation may be changed and applied as changed to existing causes of action, as has already been explained; it has been held that a statutory change of the law relating to the perpetuation of a judgment, could not be made to apply to any contract, which was in existence when the statute was enacted.1

For the same reasons, it has been held to be unconstitutional for a law to change the period of redemption of mortgaged property in the foreclosure of mortgages, which antedate the amendatory statute.2 The same conclusion was reached, in the case of an amendatory statute, which took away the right of the mortgagee to a personal judgment against the mortgage, or which limited the enforcement of such a judgment to the property which was included in the mortgage.3

On the other hand, apparently in complete opposition to the former trend of authority, it has been held by the Supreme Court of the United States, that the judgment was so far not a contract, as that a law, passed subsequently, may change the rate of interest which may be recovered on all existing judgments, which are based upon a contract which contains no provision for the payment of interest. The court held that in such a case the provision for the payment of interest on the judgment was clearly within the discretion of the legislature, and may be changed at its pleasure, even in relation to existing judgments.4

A statute of Rhode Island provided that when a trustee satisfied a final judgment to the amount of the attached property in his hands, it shall constitute a complete and final discharge of the debt on which the judgment rested. The constitutionality of the act was sustained, so far as it affects debts due to non-residents.5

§ 179.

Regulation of ships and shipping.—

In consequence of the exposure to the dangers of the sea, there would be more or less danger of accident and damage to others in the use of ships, if there were not some legal regulation of their construction and management. All police regulations are therefore lawful, which are designed and tend to diminish the dangers of sea voyaging. They are not subject to any constitutional objections.

In the first place, it is lawful to prohibit the use of unseaworthy vessels, and to provide for the inspection of all vessels and the condemnation of those that are defective.1 The United States government, under the Federal statutes, have appointed officers, whose duty it is to perform this service to the traveling public. It is also common to limit by law the number of passengers and the amount of freight which a vessel may be permitted to carry;2 and it is not unreasonable to require the master or purser of a vessel to furnish to some public officer a statement of the amount of freight or the number of passengers he may have on board.3 The overloading of a boat with freight or passengers may be considered an actual trespass upon the right of personal security of all those who may be on board of the vessel.

The skill or ignorance of the master or captain, and other officers in charge of the vessel, is of the utmost importance to those who entrust their person or property to their care; and it is consequently permissible to require all those who are applicants for such positions to submit to examinations into their qualifications, and receive a certificate of qualification, without which they cannot assume the duties of such a post. This is so common and reasonable a regulation that it has never been questioned.1

The navigation of a vessel also requires some regulation by law to remove doubt and uncertainty, and to insure uniformity in the rules. The principal legal rules of navigation are those relating to the use of colored lights at night, the regulation of fog signals, and the rules for steering when two or more vessels come into close neighborhood. These regulations are designed to prevent collision, and a detailed discussion of them may be found in any work on shipping and admiralty. It is not necessary to mention them here. We are only concerned with a consideration of the constitutionality of such laws in general. This regulation by law of the rules of navigation consists chiefly in adopting as legal and binding rules those which had met with the approval of the best part of the marine world, and the object of the interference of the government is to secure fixity and uniformity. The constitutionality of these police regulations has never been questioned.

The navigation of a vessel in mid-ocean involves no special difficulty to any one who is at all skilled in navigation. But the entrance into a harbor does require a peculiar knowledge of the coast and of the currents in and out of the bay or river. It would, therefore, be reasonable to require all vessels, on entering a harbor, to be placed in charge of a licensed pilot, and, inasmuch as the law makes it obligatory upon the pilot to beat up and down the coast in search of vessels, which are bound for the port, it is held to be reasonable to compel the master or captain to accept the services of the first pilot who offers.2

[1]See, ante, § 133.

[1]See, ante, § 134.

[1]Tiedeman on Real Prop., § 546.

[2]Tiedeman on Real Prop., § 459; 1 Sedg. on Powers (ed. 1856), 78.

[1]The term “personal property,” it must be observed, is used in this connection in the sense of chattels personal, including movable property of all kinds, but excluding chattel interests in lands.

[2]Tiedeman on Real Prop., § 470; N. Y. Rev. Stat., p. 727.

[1]See ante, § 137, and post, § 164.

[1]See ante, chapter IX., and particularly §§ 89, 96, 107, 108, 119, 120-125.

[2]See especially, §§ 89, 120-125.

[1]See in confirmation of the text. Conrad v. Smith (N. D.), 70 N. W. 815.

[2]See ante, § 125.

[1]People v. Cannon, 63 Hun, 306; s. c. 139 N. Y. 32; People v. Quinn, 139 N. Y. 32; People v. Bartholf, 139 N. Y. 32; Bell v. Gaynor, 36 N. Y. S. 122; 14 Misc. Rep. 334.

[1]Bronk v. Barckley, 43 N. Y. S. 400.

[2]See ante, § 137a, where the subject of the regulation of the right of inheritance is more fully discussed.

[3]See ante, § 119.

[1]See ante, § 119.

[2]See 2 Bla. Com. 491, 492.

[1]Patton v. Patton, 39 Ohio St. 590.

[2]University of North Carolina v. N. C. R. R., 76 N. C. 103 (22 Am. Rep. 671).

[3]Trustees Brooks Academy v. George, 14 W. Va. 411 (35 Am. Rep. 760).

[1]See ante, § 138.

[2]Cooley Const. Lim. 649, 652, 653.

[3]Farmer v. Lewis, 1 Bush (Ky.), 66. See Harmony v. Mitchell, 1 Blatchf. 549; Mitchell v. Harmony, 13 How. 115. See Republica v. Sparhawk, 1 Dallas, 363; Parham v. Justices, 9 Ga. 341.

[4]See ante, § 91.

[1]See ante, § 107.

[2]As to the sale of estrays, see post, § 175.

[1]See Schouler Dom. Rel. 480-487.

[2]See Schouler Dom. Rel. 461-479.

[3]Lincoln v. Alexander, 52 Cal. 482 (28 Am. Rep. 639).

[4]Wadsworth v. Sharpsteen, 8 N. Y. 388; Imhoff v. Whitmer, 21 Pa. St. 243; Devin v. Scott, 34 Ind. 67.

[1]See Schouler Dom. Rel. 404.

[2]In respect to the destruction of domestic animals for being nuisances, see post, § 175.

[1]State v. Miller, 48 Me. 576; State v. Snow, 3 R. I. 54; Green v. James, 2 Curt. 187.

[2]Jeck v. Anderson, 57 Cal. 251 (40 Am. Rep. 115); Weller v. Snover, 42 N. J. L. (13 Vroom) 341; Lawton v. Steele, 51 Hun, 643; s. c. 119 N. Y. 226: s. c. 152 U. S. 133; Bittenhaus v. Johnston, 92 Wis. 588; State v. Lewis, 134 Ind. 250; Peters v. State, 96 Tenn. 682; State v. Owen, 10 L. D. 163; s. c. 3 Ohio N. P. 181; State v. Mrozinski, 59 Minn. 465; People v. Bridges, 142 Ill. 30; Osborn v. Charlevoix Circuit Judge, 114 Mich. 655.

[3]Lowry v. Rainwater, 70 Mo. 152 (35 Am. Rep. 420); Glennon v. Britton, 155 Ill. 232.

[4]Boyd v. United States, 116 U. S. 616.

[5]Greene v. James, 2 Curt. 187; Jeck v. Anderson, 57 Cal. 251 (40 Am. Rep. 115); Lowry v. Rainwater, 70 Mo. 152 (35 Am. Rep. 420).

[1]Lawton v. Steele, 119 N. Y. 226; s. c. 152 U. S. 133.

[2]See, also, to same effect, State v. Owen, 10 L. D. 163; 3 Ohio N. P. 181; Bittenhaus v. Johnson, 92 Wis. 588; Glennon v. Britton, 155 Ill. 232 (in reference to the destruction of gambling implements).

[1]Newark & S. O. H. R. Co. v. Hunt, 50 N. J. L. 308; Loesch v. Koehler, 144 Ind. 278; Dunbar v. City Council of Augusta, 90 Ga. 390. In the Indiana case, it is also expressly declared to be unnecessary to the legality of the act of destruction in such a case, that the owner should be previously notified.

[2]State v. Main, 69 Conn. 123.

[1]State v. Smyth, 14 R. I. 100 (51 Am. Rep. 344).

[2]People v. Cannon, 139 N. Y. 32; People v. Quinn, 139 N. Y. 32; People v. Bartholf, 139 N. Y. 32.

[1]Monroe Dairy Association v. Stanley, 65 Hun, 163.

[2]Phelps v. Racey, 60 N. Y. 10 (19 Am. Rep. 140).

[3]People v. Webster, 40 N. Y. S. 1135; 17 Misc. Rep. 410.

[1]See ante, §§ 89, 119-128. To these sections the reader is referred for the full and complete statement of the regulations which are properly discussed under the heading of the present section.

[2]U. S. Const.

[1]See U. S. Rev. Statutes, §§ 5457, 5458. See post, § 227.

[2]See U. S. Rev. Stat., § 5462.

[1]See ante, § 125, for a general discussion of the prohibition of the liquor trade.

[1]Miller v. State, 153 U. S. 535; Munn v. State, 1 Ga. 243; Aymette v. State, 2 Humph. 154; State v. Buzzard, 4 Ark. 18; State v. Reid, 1 Ala. 612; State v. Mitchell, 3 Blackf. 229; State v. Jumel, 13 La. Ann. 399; State v. Smith, 11 La. Ann. 633; English v. State, 35 Tex. 472 (14 Am. Rep. 374); State v. Wilforth, 74 Mo. 528 (41 Am. Rep. 330); State v. Shelby 90 Mo. 302; North v. People, 139 Ill. 81. In Haile v. State, 38 Ark. 564 (42 Am. Rep. 3), a statute was held to be constitutional which prohibited the carrying of army pistols, unless uncovered and in the hand.

[2]Commonwealth v. Murphy, 166 Mass. 171.

[3]River Rendering Comdany v. Behr, 77 Mo. 91 (46 Am. Rep. 6).

[1]Davis v. State, 68 Ala. 58 (44 Am. Rep. 128).

[1]State v. Yopp, 97 N. C. 477.

[2]Twilley v. Perkins, 77 Md. 252.

[3]Cooley on Torts, 348-350.

[4]Cooley on Torts, pp. 341-348, and cases there cited.

[1]Cooley on Torts, and cases there cited.

[2]Cooley on Torts, 341.

[3]Nolin v. Franklin, 4 Yerg. 163.

[1]Jones v. Brim, 165 U. S. 180; Campen v. Laugley, 39 Mich. 45 1 (33 Am. Rep. 414); Wilcox v. Hemming, 58 Wis. 144 (46 Am. Rep. 625); Rockwell v. Nearing, 35 N. Y. 302; Campbell v. Evans, 45 N. Y. 356; Cook v. Gregg, 46 N. Y. 439; Varden v. Mount, 78 Ky. 86 (39 Am. Rep. 208); Roberts v. Ogle, 38 Ill. 459; Anderson v. Locke, 64 Miss. 283; Burdett v. Allen, 35 W. Va. 347; Coyle v. McNabb (Tex.), 18 S. W. 198; City of Paris v. Hale (Tex. Civ. App.), 35 S. W. 333; Armstrong v. Traylor, 87 Tex. 598; Sutton v. State, 96 Tenn. 696; Wilson v. Bayers, 5 Wash. St. 303; Stewart v. Hunter, 16 Oreg. 62 (16 P. 876*); Shehane v. Bailey, 110 Ala. 308.

[2]In re Linehan, 72 Cal. 114.

[3]Ex parte Hodges, 87 Cal. 162.

[1]Brent v. Kimball, 60 Ill. 21 (14 Am. Rep. 35); Matthew v. Fiestel, 3 E. D. Smith, 90; Dodson v. Moch, 4 Dev. & B. L. 146.

[2]Aldrich v. Wright, 53 N. H. 398.

[3]Putnam v. Payne, 13 Johns. 312; Maxwell v. Palmerton, 21 Wend. 407; Dunlap v. Synder, 17 Barb. 561; People v. Board of Police, 15 Abb. Pr. 167; Brown v. Carpenter, 26 Vt. 638; Woolf v. Chalker, 31 Conn. 121.

[4]Perry v. Phipps, 10 Ired. L. 259.

[5]People v. Gillespie, 25 App. Div. 91 (48 N. Y. S. 882).

[1]Vin. Abr. Trespass Z; Replevin A; 2 Bla. Com. 193; 3 Bla. Com. 7; 4 Bla. Com. 234, 235; Milton v. Faudrye, Pop. 116; s. c. nom. Millen v. Fawer, Bendl. 171; Mason v. Keeling, 1 Ld. Raym. 608; s. c. 12 Mod. 336; Read v. Edwards, 17 C. B. (n. s.) 245; Regina v. Robinson, 8 Cox Crim. Cas. 115.

[1]Putnam v. Payne, 13 Johns. 312; Brown v. Carpenter, 26 Vt. 638; Woolf v. Chalker, 31 Conn. 121.

[1]Tower v. Tower, 18 Pick. 262.

[2]Cummings v. Perham, 1 Met. 555.

[3]Morey v. Brown, 42 N. H. 373; Carter v. Dow, 16 Wis. 298.

[1]Statutes 1867, ch. 130, § 7.

[1]Blair v. Forehand, 100 Mass. 136 (1 Am. Rep. 94). See, also, Commonwealth v. Palmer, 134 Mass. 537.

[2]Morey v. Brown, 42 N. H. 373; Cranston v. Mayor of Augusta, 61 Ga. 572; Sentell v. New Orleans & C. Ry. Co., 166 U. S. 698; Jenkins v. Ballantyne, 8 Utah, 245; People v. Tighe, 9 Misc. Rep. 607 (30 N. Y. S. 368); Fox v. Mohawk & H. R. Humane Society (Hun), 46 N. Y. S. 232; Wilson v. Byers, 5 Wash. St. 303; City of Independence v. Trouvalle, 15 Kans. 70; City of Cherokee v. Fox, 34 Kans. 16; State v. City of Topeka, 36 Kans. 76; Woolf v. Chalker, 31 Conn. 121; King v. Kline, 6 Pa. St. 318; Mitchell v. Williams, 27 Ind. 62; State v. Cornwall, Ib. 120; Haller v. Sheridan, Ib. 494; Commonwealth v. Markham, 7 Bush, 486; Mowery v. Salisbury, 82 N. C. 175; Cole v. Hall, 103 Ill. 30; Holst v. Roe, 39 Ohio St. 340; Archer v. Baertschi, 8 Ohio C. C. 12; Van Horn v. People, 46 Mich. 183; Hendric v. Kalthoff, 48 Mich. 306; Tenney v. Lenz, 16 Wis. 589; Marshall v. Blackshire, 44 Iowa, 475; City of Carthage v. Rhodes, 101 Mo. 175. But see Lynn v. State, 33 Tex. Cr. Rep. 153, denying this power of the State. But this power cannot be delegated to a private humane society. Fox v. Mohawk & H. R. Humane Society, 48 N. Y. S. 625; 25 App. Div. 26.

[3]Mitchell v. Williams, 27 Ind. 62; Carter v. Dow, 16 Wis. 298; Tenney v. Lenz, 16 Wis. 566; State v. Cornwall, 27 Ind. 62; Holts v. Roe, S. C. Ohio, 5 Ohio Law J. 605.

[1]See ante, § 119.

[2]“We cannot assent to the position taken by appellant, that if the sum required for a license exceeds the expense of issuing, the act transcends the licensing power and imposes a tax. By such a theory the police power would be shorn of all its efficiency. The exercise of that power is based upon the idea that the business licensed or kind of property regulated, is liable to work mischief, and therefore needs restraints, which shall operate as a protection to the public. For this purpose the license money is required to be paid. But if it could not exceed the mere expense of issuing the license, its object would fail altogether. * * * We have no doubt, therefore, that the legislature may, in regulating any matter that is a proper subject of police power, impose such sums for licenses as will operate as partial restrictions upon the business, or upon the keeping of particular kinds of property.” Tenny v. Lenz. 16 Wis. 567.

[3]East Kingston v. Towle, 48 N. H. 57 (2 Am. Rep. 170). But see contra, supporting the constitutionality of such a law, Fairchild v. Rich, 68 Vt. 202.

[1]Longyear v. Buch, 83 Mich. 236.

[1]See State v. Pugh, 15 Mo. 509.

[2]King v. Hayes (Me.), 13 A. 882.

[1]“No State shall pass any law impairing the obligation of a contract.” U. S. Const., art. I, § 10.

[2]Douglass v. Pike Co., 101 U. S. 677; McCracken v. Hayward, 2 How. 608, 612; Ogden v. Saunders, 12 Wheat. 213; People v. Ingersoll, 58 N. Y. 1; Goggans v. Turnipseed, 1 S. C. 40 (7 Am. Rep. 23); Stein v. Mobile, 49 Ala. 362 (20 Am. Rep. 283); Van Baumback v. Bade, 9 Wis. 559. And the constitutional prohibition applies to changes in the State constitution as well as to amendments of the statutes. White v. Hart, 13 Wall. 646; Osborn v. Nicholson, 13 Ark. 654; Oliver v. Memphis, etc., R. R. Co., 30 Ark. 128; Jacoway v. Denton, 25 Ark. 641.

[3]“It is the civil obligation which [the constitution] is designed to reach; that is, the obligation which is recognized by, and results from, the law of the State in which it is made. If, therefore, a contract when made is by the law of the place declared to be illegal, or deemed to be a nullity, or a nude pact, it has no civil obligation; because the law in such cases forbids its having any binding efficacy or force. It confers no legal right on the one party, and no corresponding legal duty on the other. There is no means allowed or recognized to enforce it; for the maxim is ex nudo pacto non oritur actio. But when it does not fall within the predicament of being either illegal or void, its obligatory force is co-extensive with its stipulations.” Story on Constitution, § 1380.

[1]See ante, §§ 91, 99-118.

[2]For a discussion of this subject see Cooley Const. Lim., pp. 331-346. Whether the character of corporations fall properly within the meaning and scope of this provision, see post, § 188.

[3]United States ex rel. Siegel v. Thoman, 156 U. S. 353.

[1]Arnold v. Alden, 173 Ill. 229.

[2]Galveston H. & S. A. Ry. Co. v. State of Texas, 170 U. S. 226.

[3]Houston & T. C. Ry. Co. v. State of Texas, 170 U. S. 243.

[1]See ante, § 96.

[2]Chicago B. & Q. Ry. Co. v. State (U. S.), 18 S. Ct. 531.

[3]As to which, see ante, § 137a.

[4]Hamilton v. Brown, 161 U. S. 256.

[1]11 Pet. 420, 536.

[1]Sheehan v. Treasurer of Long Island City, 33 N. Y. S. 428; 11 Misc. 487. See, also, to the same general effect, In re Copenhaver, 54 Fed. 660.

[2]Shapleigh v. City of San Angelo, 167 U. S. 646.

[3]Savings & Loan Ass’n v. Altmas Co., 65 Fed. 677; Mills County v. Brown County (Tex.), 29 S. W. 650.

[4]Stevens v. City of Muskegon, 111 Mich. 72.

[1]People v. Common Council of Buffalo, 140 N. Y. 300.

[2]Eidemiller v. City of Tacoma, 14 Wash. St. 376 (44 P. 877).

[3]McClellan v. State, 138 Ind. 321.

[4]Wood v. Brady, 150 U. S. 18. This principle has been applied by the United States Supreme Court and in other cases, in favor of the holders of municipal bonds, who have relied upon the judicial determination of the validity of a statute, under which bonds of like character have been issued by the different municipalities.

[1]Bacon v. State of Texas, 163 U. S. 207. See, also, Gelpcke v. Dubuque, 1 Wall. 200; Railroad Co. v. McClure, 10 Wall. 511.

[2]Osborne v. Nicholson, 13 Wall. 662; Call v. Hagger, 8 Mass. 430; Penrose v. Erie Canal Co., 56 Pa. St. 46; Thompson v. Commonwealth, 81 Pa. St. 314; West v. Sansom, 44 Ga. 295; Rison v. Farr, 24 Ark. 161; Griffin v. Wilcox, 21 Ind. 370; McFarland v. Butler, 8 Minn. 116; Jackson v. Butler, 8 Minn. 117.

[3]Drehman v. Stifel, 41 Mo. 184; s. c. 8 Wall. 595. See Hess v. Johnson, 3 W. Va. 645. In the first case, the constitutional provision took away all rights of action for anything done by the State or Federal military authorities during the Civil War.

[1]Baltzer v. State of North Carolina, 161 U. S. 240.

[1]Houston & T. C. Ry. Co. v. Rogers (Tex. Civ. App.), 39 S. W. 1112.

[2]North Point Consol. Irrigation Co. v. Utah & Salt Lake Canal Co. (Utah), 46 P. 824; Eastman v. Gurrey (Utah), 46 P. 828.

[3]Chicago B. & Q. Ry. Co. v. Headrick, 49 Neb. 286; 68 N. W. 489.

[4]Lovell v. Davis, 52 Mo. App. 342.

[5]Ogden v. Saunders, 12 Wheat. 213; Beers v. Haughton, 9 Pet. 329; Tennessee v. Sneed, 96 U. S. 69; Fourth Nat. Bank v. Franklyn, 120 U. S. 747; Willis v. Miller, 29 Fed. 238; Strickler v. Yager, ib.; Commonwealth v. Jones, 1 S. E. 84, note; 82 Va. 789; Simpson v. Savings Bank, 56 N. H. 466; Danks v. Quackenbush, 1 N. Y. 129; Morse v. Goold, 11 N. Y. 281; Baldwin v. Newark, 38 N. J. 158; Moore v. State, 43 N. J. 203; Evans v. Montgomery, 4 Watts & S. 218; Penrose v. Erie Canal Co., 56 Pa. St. 46; Baumgardner v. Circuit Court, 4 Mo. 50; Porter v. Mariner, 50 Mo. 364; Smith v. Van Gilder, 26 Ark. 521; Coosa River St. B. Co. v. Barclay, 30 Ala. 120; Holloway v. Sherman, 12 Iowa, 282; Smith v. Packard, 12 Wis. 371; Bronson v. Newberry, 2 Dougl. (Mich.), 38; Brockwell v. Hubbell’s Admrs., 2 Dougl. (Mich.) 197.

[1]Iowa Cent. Ry. Co. v. State of Iowa, 160 U. S. 389.

[2]State v. McCaffrey (Vt.), 37 A. 234.

[3]New Orleans C. & L. Ry. v. State of La., 157 U. S. 219.

[4]Maury v. Commonwealth, 92 Va. 310.

[5]Marshall, C. J., in Sturges v. Crowninshield, 4 Wheat. 122. See Mason v. Haile, 12 Wheat. 370; Penniman’s Case, 103 U. S. 714; Matter of Nichols, 8 R. I. 50; Sommers v. Johnson, 4 Vt. 278 (24 Am. Dec. 604); Ware v. Miller, 9 S. C. 13; Maxey v. Loyal, 38 Ga. 531; Bronson v. Newberry, 2 Dougl. (Mich.) 38; In re Knaup, 144 Mo. 653; Colby v. Backus, 19 Wash. St. 347. A judgment lien may be taken away by the repeal of the statute authorizing it. Watson v. N. Y. Cent. R. R. Co., 47 N. Y. 157; Woodbury v. Grimes, 1 Col. 100. But see, contra, Gunn v. Barry, 15 Wall. 610. The time of the lien may also be extended before it has expired (Ellis v. Jones, 51 Mo. 180), or the mode of securing it changed before it has attached. Whitehead v. Latham, 83 N. C. 232. See, also, Williams v. Haines, 27 Iowa, 251, in which a statute, which allowed the want of consideration to be set up in defense of an action on a sealed instrument, was held to be constitutional, because it did not impair the obligation of the contract. On the other hand, where by statute the stockholders are made personally liable for the contracts of the corporation, a statute taking away this liability cannot be made to apply to existing contracts. Hawthorn v. Calef, 2 Wall. 10; Corning v. Mc Cullough, 1 N. Y. 47; Story v. Firman, 25 N. Y. 214; Morris v. Wrenshall, 34 Md. 494; Brown v. Hitchcock, 36 Ohio St. 667; Providence Savings Institute v. Skating Rink, 52 Mo. 452. So, also, may the distress for rent be taken away from existing leases. Van Rensselaer v. Snider, 9 Barb. 302; s. c. 13 N. Y. 299; Guild v. Rogers, 8 Barb. 502. And the distress for rent may be abolished, even in cases in which the parties have expressly stipulated for it. Conkey v. Hart, 14 N. Y. 22.

[1]Woodward v. Winehill, 14 Wash. 394.

[2]Crosby v. City of Council of Montgomery, 108 Ala. 498. It may be open to question, whether such an increase in the severity of the remedy, would be sustained, if applied to existing causes of action arising between strictly private parties.

[1]State v. Lake Shore & M. S. Ry. Co., 1 Ohio N. P. 292; 2 Ohio Dec. 300.

[2]McNamara v. Casserly, 61 Minn. 335.

[3]State v. Guilbert, 56 Ohio St. 575.

[1]See City of Philadelphia v. Jenkins, 162 Pa. St. 451, in which the question was raised and answered in application to the service by publication of non-resident land-owners in actions for the enforcement of municipal liens. And see Kurtz v. Duluth Land Co., 52 Minn. 140, as to service by publication on non-resident infants of notice of appointment of a resident guardian. See also Kurtz v. St. Paul & D. R. Railroad Co., 48 Minn. 339.

[2]I do not, of course, refer to or include here the numerous cases of fraudulent acquisition of domicile, which the statutes of some of the States allow, in the interests of the local bar.

[3]Kirkpatrick v. Post, 53 N. J. Eq. 591.

[1]Hearfield v. Bridge, 67 Fed. 333.

[2]Succession of Grover, 49 La. 1050; Holt v. Tennallytown &c. Ry. Co., 81 Md. 219.

[3]Lowe v. State of Kansas, 163 U. S. 81.

[4]Joliffe v. Brown, 14 Wash. St. 155 (44 P. 149).

[5]Vogel v. Pekoc, 157 Ills. 339.

[1]Garneau v. Port Blakely Mill Co., 8 Wash. 467.

[2]Henry & Coatsworth Co. v. Evans, 97 Mo. 47; Lambert v. Davis, 116 Cal. 292; Hoffa v. Person, 1 Pa. Super. Ct. 357.

[1]Cole Mfg. Co. v. Falls, 90 Tenn. 466.

[2]Henry & Coatsworth Co. v. Evans, 97 Mo. 47.

[3]Jones v. Great Southern Fireproof Hotel Co., 70 Fed. 477.

[4]Andrews & Johnson Co. v. Atwood, 167 Ill. 249.

[5]Brown v. Markham, 60 Minn. 233.

[1]Osborn v. Johnson Wall Paper Co., 99 Ala. 309.

[2]Randolph v. Builders’ and Painters’ Supply Co., 106 Ala. 501.

[3]Meyer v. Berlandi, 39 Minn. 438.

[4]Gaar v. Clements, 4 N. D. 559; Sitton v. Dubois, 14 Wash. 624 (45 P. 303).

[5]Hennig v. Staed, 138 Mo. 430.

[1]McCoy v. Cook, 13 Wash. St. 158; 42 P. 546.

[2]Randolph v. Builders’ & Painters’ Supply Co., 106 Ala. 501.

[3]Wortman v. Kleinschmidt, 12 Mont. 316; Helena Steam Heating & Supply Co. v. Wells, 16 Mont. 65 (40 P. 78).

[1]New York Life Ins. Co. v. Smith (Tex. Civ. App.), 41 S. W. 680.

[2]Clearwater Bank v. Kurkouski, 45 Neb. 1.

[3]Cooley Const. Lim. 452. See Com. v. Weller, 82 Va. 721; State v. Weston, 1 Ohio N. P. 350; 3 Ohio Dec. 15.

[4]Rich v. Flanders, 39 N. H. 304; Southwick v. Southwick, 49 N. Y. 510. So, also, a statute which admits parol evidence to contradict a written instrument. Gibbs v. Gale, 7 Md. 76. See, generally, Ogden v. Saunders, 12 Wheat. 213; Webb v. Den, 17 How. 576; Fales v. Wadsworth, 23 Me. 553; Pratt v. Jones, 25 Vt. 303; Neass v. Mercer, 15 Barb. 318; Howard v. Moot, 64 N. Y. 262; Commonwealth v. Williams, 6 Gray, 1; Karney v. Paisley, 13 Iowa, 89.

[5]Considine v. Metropolitan Life Ins. Co., 165 Mass. 462; Dangan v. Metropolitan Life Ins. Co., 165 Mass. 462.

[6]Hand v. Ballou, 12 N. Y. 541: Forbes v. Halsey, 26 N. Y. 53; Lacey v. Davis, 4 Mich. 140; Wright v. Dunham, 13 Mich. 414; Delaplaine v. Cook, 7 Wis. 44; Lumsden v. Cross, 10 Wis. 282; Adams v. Beale, 19 Iowa, 61; Abbott v. Lindenbower, 42 Mo. 162; s. c. 46 Mo. 291.

[1]Robertson v. People, 20 Colo. 279.

[2]Randolph v. Builders’ & Painters’ Supply Co., 106 Ala. 501.

[3]Tift v. Griffin, 5 Ga. 185; Little Rock, etc., R. R. Co. v. Payne, 33 Ark. 816 (34 Am. Rep. 55); Abbott v. Lindenbower, 42 Mo. 162; s. c. 46 Mo. 291; Young v. Beardsley, 11 Paige, 93; East Kingston v. Towle, 48 N. H. 57 (2 Am. Rep. 174); Allen v. Armstrong, 16 Iowa, 508; Conway v. Cable, 37 Ill. 82; White v. Flynn, 23 Ind. 46; Groesbeck v. Seeley, 13 Mich. 329; Lenz v. Charlton, 23 Wis. 478; Taylor v. Miles, 5 Kan. 498 (7 Am. Rep. 558); Wright v. Cradlebaugh, 3 Nev. 341. In the case last cited the court say: “We apprehend that it is beyond the power of the legislature to restrain a defendant in any suit from setting up a good defense to an action against him. The legislature could not directly take the property of A. to pay the taxes of B. Neither can it indirectly do so by depriving A. of the right of setting up in his answer that his separate property has been jointly assessed with that of B., and asserting his right to pay his own taxes without being incumbered with those of B. * * * Due process of law not only requires that a party shall be properly brought into court, but that he shall have the opportunity when in court to establish any fact which, according to the usages of the common law, or the provisions of the constitution, would be a protection to him or his property.”

[1]Roth v. Gabbert, 123 Mo. 21; Larson v. Dickey, 39 Neb. 463.

[2]Daggs v. Orient Ins. Co. of Hartford, 136 Mo. 382.

[3]Geary v. Kansas City, O. & S. Ry. Co., 138 Mo. 25.

[1]Taney, C. J., in Bronson v. Kinzie, 1 How. 311, 315; Quackenbush v. Danks, 1 Denis, 128; s. c. 3 Denio, 594; s. c. 1 N. Y. 129; Morse v. Goold, 11 N. Y. 281; Hill v. Kessler, 63 N. C. 437; Martin v. Hughes, 67 N. C. 293; In re Kennedy, 2 S. C. 216; Hardeman v. Downer, 39 Ga. 425; Maull v. Vaughn, 45 Ala. 134; Sneider v. Heidelberger, 45 Ala. 126; Farley v. Dowe, 45 Ala. 324; Breitung v. Lindauer, 37 Mich. 217; Sprecker v. Wakely, 11 Wis. 432; Coleman v. Ballandi, 22 Minn. 144; Cusic v. Douglass, 3 Kan. 123.

[2]In re Mulligan’s Estate, 24 N. Y. S. 321; 4 Misc. Rep. 361.

[3]See Duncan v. Burnett, 11 S. C. 333 (32 Am. Rep. 476); Wilson v. Brown, 58 Ala. 62 (29 Am. Rep. 727); Johnson v. Fletcher, 54 Miss. 628 (28 Am. Rep. 388).

[1]Skinner v. Holt (S. D.), 69 N. W. 595.

[2]Gunn v. Barry, 15 Wall. 610; Edwards v. Kearzey, 96 U. S. 595; Homestead Cases, 22 Gratt. 266 (12 Am. Rep. 507); Garrett v. Cheshira, 69 N. C. 396 (12 Am. Rep. 647); Lessley v. Phipps, 49 Miss. 790.

[3]Parker v. Savage, 6 Lea, 406.

[4]State v. Bank of South Carolina, 1 S. C. 63.

[5]Burrows v. Brooks, 113 Mich. 307.

[6]Adams v. Creen, 100 Ala. 218.

[1]Day v. Madden (Colo. App.), 48 P. 1053.

[2]Freiberg v. Singer, 90 Wis. 608.

[3]U. S. Const., art. I., § 8.

[4]See Sturgis v. Crowninshield, 4 Wheat. 122; Farmers’ and Mechanics’ Bk. v. Smith, 6 Wheat. 131; Ogden v. Saunders, 12 Wheat. 213; Baldwin v. Hale, 1 Wall. 223. But the State insolvent laws can have no application to contracts made without the State, or to those made between citizens of different States, unless all the parties to the contract come into court and voluntarily submit to the operation of the State laws, McMillan v. McNeil, 4 Wheat. 209; Ogden v. Saunders, 12 Wheat. 213; Clay v. Smith, 3 Pet. 411; Boyle v. Zacharie, 6 Pet. 348; Suydam v. Broadnax, 14 Pet. 67; Cook v. Moffat, 5 How. 295; Baldwin v. Hale, 1 Wall. 223; Baldwin v. Bank of Newbury, 1 Wall. 234; Gilman v. Lockwood, 4 Wall. 409.

[1]Ogden v. Saunders, 12 Wheat. 213.

[2]Paddock v. Staley, 24 Colo. 188 (49 P. 281).

[3]Third Nat. Bank v. Divine Grocery Co., 97 Tenn. 303.

[4]Burtt v. Barnes, 87 Wis. 519.

[1]Missouri K. & T. Ry. Co. v. Chilton (Tex. Civ. App.), 27 S. W. 272.

[1]See Terry v. Anderson, 95 U. S. 628; Williams v. Eggleston, 170 U. S. 304; Proprietors, etc., v. Laboree, 2 Me. 294; Call v. Hagger, 8 Mass. 423; Smith v. Morrison, 22 Pick. 430; Davidson v. Lawrence, 49 Ga. 335; Kimbro v. Bk. of Fulton, 49 Ga. 419; Hart v. Bostwick, 14 Fla. 162; Barry v. Ransdell, 4 Met. (Ky.) 292; O’Bannon v. Louisville, 8 Bush, 348; Blackford v. Pettier, 1 Blackf. 36; DeMoss v. Newton, 31 Ind. 219; Price v. Hopkin, 13 Mich. 318; Osborne v. Jaines, 17 W.s. 573; Hill v. Gregory, 64 Ark. 317; Swampland Dist. No. 307 v. Glide, 112 Cal. 85; State v. Messenger, 27 Minn. 119; Adamson v. Davis, 47 Mo. 268; Keith v. Keith, 26 Kan. 27; Mellinger v. City of Houston, 68 Tex. 36; Moody v. Hoskins, 64 Miss. 648.

[2]Madden v. Lancaster County, 65 Fed. 188; 12 C. C. A. 566.

[3]Cunningham v. City of Denver, 23 Colo. 18 (45 P. 356).

[4]Armstrong v. Galveston H. & S. A. Ry. Co. (Tex. Civ. App.), 29 S. W. 1117. See, to the same effect, Karnes v. Am. Fire Ins. Co., 144 Mo. 413.

[1]Wilkinson v. Lemassina, 51 N. J. L. 61; Morris v. Carter, 46 N. J. L. 260.

[2]Board of Education of Normal School Dist. v. Blodgett, 155 Ill. 441.

[3]Morrison v. McDonald, 113 N. C. 327.

[1]Bettman v. Cowley (Wash.), 53 P. 53.

[2]Barnitz v. Beverly, 163 U. S. 118; overruling Beverly v. Barnitz, 55 Kan. 466; State v. Gilliam, 18 Mont. 94 (45 P. 661), overruling s. c. 44 P. 394; State v. Sears, 29 Oreg. 580 (43 P. 482); Swinburne v. Mills, 17 Wash. 611 (50 P. 489.)

[3]Dennis v. Moses (Wash.), 52 P. 333.

[4]Morley v. Lake Shore & M. S. Ry. Co., 146 U. S. 162. Three justices dissented, Justices Field, Harlan and Brewer.

[5]Cross v. Brown, 19 R. I. 220.

[1]Thus, it was held to be a reasonable regulation, which provided for the inspection of boilers of vessels. Bradley v. Northern, etc., Co., 15 Ohio St. 553.

[2]St. Louis v. McCoy, 18 Mo. 238; St. Louis v. Boffinger, 19 Mo. 13.

[3]Canal Commissioners v. Willamette Transp. Co., 6 Ore. 219.

[1]See ante, § 87, in respect to the police regulation of skilled trades and learned professions.

[2]Thompson v. Spraigue, 69 Ga. 409 (47 Am. Rep. 760). See Sherlock v. Alling, 93 U. S. 99. As to whether the United States or the States have the power to regulate the matter of pilotage, see post, 224.