check of the judiciary, who may annul unconstitutional laws, and punish those concerned in enforcing them. Upon judicial action there is the legislative check, which consists in the power to prescribe rules for the courts, and perhaps to restrict their authority; and the executive check, of refusing aid in enforcing any judgments which are believed to be in excess of jurisdiction. Upon executive action the legislature has a power of restraint, corresponding to that which it exercises upon judicial action; and the judiciary may punish executive agents for any action in excess of executive authority. And the legislative department has an important restraint upon both the executive and the judiciary, in the power of impeachment for illegal or oppressive action, or for any failure to perform official duty. The executive, in refusing to execute a legislative enactment, will always do so with the peril of impeachment in view. IV. Local self-government having always been a part of the English and American systems, we shall look for its recognition in any such instrument. And even if not expressly recognized, it is still to be understood that all these instruments are framed with its present existence and anticipated continuance in view.1 V. We shall also expect a declaration of rights for the protection of individuals and minorities. This declaration usually contains the following classes of provisions: 1. Those declaratory of the general principles of republican government; such as, that all freemen, when they form a social compact, are equal, and no man, or set of men, is entitled to exclusive, separate public emoluments or privileges (a) from the 1 Park Commissioners v. Common Council of Detroit, 28 Mich. 228; People v. Albertson, 55 N. Y. 50. [Under the constitution of Georgia it is held that municipalities cannot maintain the proposition of absolute local self-government and the State legislature may by direct enactment control the local police. Americus v. Perry, 114 Ga. 871, 40 S. E. 1004, 57 L. R. A. 230. It is held in White v. Barker, Iowa, 89 N. W. 204, 57 L. R. A. 244 (Feb. 13, 1902), that the legislature could not take from the municipality the management of a municipal water supply system. That action to that effect was invalid for violation of the principle of municipal self-government. This case is valuable for its historical discussion of the principle. The legislature cannot fix the salaries of firemen employed by municipalities, although there is no limitation on such action in the constitution, since this is a matter of purely local concern. Lexington v. Thompson, Ky. 68 S. W. 477, 57 L. R. A. 775 (May 28, 1902). A legislature may create a school district and appoint its officers. Kies v. Lowery, Mich. 92 N. W. 289 (Nov. 18, 1902). For a discussion of the "Right to Local Self-Government," see article by Mr. Amasa M. Eaton, 13 Harv. L. Rev. 441, 570, 638, 14 id. 20, 116.] (a) [The provision that no corporation shall be granted any special or exclusive privilege or immunity is not violated by an act which allows trustees of an estate to charge the estate any reasonable sum which they may have paid "to a company," authorized by law so to do, for becoming surety upon their bonds. Re Clark, 195 Pa. community but in consideration of public services; that absolute, arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority; that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, happiness, security, and the protection of property; that for the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform, or abolish their government in such manner as they may think proper; that all elections shall be free and equal; that no power of suspending the laws shall be exercised except by the legislature or its authority; that standing armies are not to be maintained in time of peace; that representation shall be in proportion to population; that the people shall have the right freely to assemble to consult of the common good, to instruct their representatives, and petition for redress of grievances; and the like. 2. Those declaratory of the fundamental rights of the citizen: as that all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, (a) and pursuing and obtaining safety and 520, 46 Atl. 127, 48 L. R. A. 587. But the privilege of taking oysters in public waters cannot be restricted to taxpayers. Gustafson v. State, 40 Tex. Cr. 67, 45 S W. 717, 48 S. W. 518, 43 L. R. A 615. But labor unions may be granted right to register their trade-marks and labels and have them protected from infringement. Schmalz v. Woolley, 57 N. J. Eq. 303, 41 Atl. 939, 43 L. R. A. 86, 73 Am. St. 637; Perkins v. Heert, 158 N. Y. 306, 53 N. E. 18, 43 L. R. A. 858, 70 Am. St. 483. Sale of ferry franchise to highest bidder is not a grant of special or exclusive privilege, even though the franchise be exclusive, all persons being free to bid. Patterson v. Wollman, 5 N. D. 608, 67 N. W. 1040, 33 L. R. A. 536; Nixon v. Reid, 8 S. D. 507, 67 N. W. 57, 32 L. R. A. 315. Law making an exception from civil service regulations in case of veteran soldiers, and compelling their appointment to vacancies upon their sworn statements of qualification, is void. Brown v. Russell, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253, 55 Am. St. 357. Statute authorizing the levy of an arbitrary tax upon ordinary and lawful occupations is void. State v. Conlon, 65 Conn. 478, 33 Atl. 519, 31 L R. A. 55, 48 Am. St. 227. Statute granting to tradeunions copyright in their trade-marks is valid. State v. Bishop, 128 Mo. 373, 31 S. W. 9, 29 L. R. A. 200, 49 Am. St 569, and see note hereto in L. R. A. Statute specifying number of deputies to be allowed county officers in certain counties, but leaving it to discretion of county court in other counties is void. Weaver v. Davidson County, 104 Tenn. 315, 59 S. W. 1105.] (a) [An act which makes it unlawful to hire any laborer to work more than eight hours per day in any mine or smelter is void. Re Morgan, 26 Colo. 415, 58 Pac. 1071, 47 L. R. A. 52, 77 Am. St. 269. But a State may require that its contractors and builders shall employ their laborers only eight hours per day. Re Dalton, 61 Kan. 257, 59 Pac. 336, 47 L. R. A. 380. The right to liberty does not give to insurance corporations the right to contract among themselves to maintain stipulated State v. Firemen's Fund Ins. Co., 152 Mo. 1, 52 S. W. 595, 45 L. R. A. 363. Right to engage in ticket brokerage cannot be restricted to persons designated by rates. happiness; that the right to property is before and higher than any constitutional sanction; that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed; that every man may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that every man may bear arms for the defence of himself and of the State; that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, nor shall soldiers be quartered upon citizens in time of peace; and the like. 3. Those declaratory of the principles which ensure to the citizen an impartial trial, and protect him in his life, liberty, and property against the arbitrary action of those in authority: as that no bill of attainder or ex post facto law shall be passed; that the right to trial by jury shall be preserved; that excessive bail shall not be required, nor excessive punishments inflicted; that no person shall be subject to be twice put in jeopardy for the same offence, nor be compelled in any criminal case to be a witness against himself, (a) nor be deprived of life, liberty, or property without due process of law; that private property shall not be taken for public use without compensation; and the like. (b) 1 Hale v. Everett, 53 N. H. 9; Board of Education v. Minor, 23 Ohio St. 211. transportation companies. People v. Warden, &c., 157 N. Y. 116, 51 N. E. 1006, 43 L. R. A. 264, 68 Am. St. 763. But see, in this connection, cases cited in note 3, page 886, post. No man can be held to answer for the act of another over whom he has no control or authority, Durkin v. Kingston Coal Co., 171 Pa. 193, 33 Atl. 237, 29 L. R. A. 808, 50 Am. St. 801, declaring invalid an act making the proprietor of a mine responsible for the acts and neglects of a licensed mine foreman whom he was by statute compelled to employ. Right of employer to discharge employees joining or refusing to withdraw from labor unions cannot be taken from him. State v. Julow, 129 Mo. 163, 31 S. W. 781, 29 L. R. A. 257, 50 Am. St. 443, a statute fixing a license fee of $1,000 for persons engaged in hiring laborers in one State to be employed in another is invalid. State v. Moore, 113 N. C. 697, 18 S. E. 342.] (a) [See latter part of note 1, page 442.] (b) [The provision that courts of justice shall be open to every person and that right and justice shall be administered without denial, sale, or delay is violated by a statute which allows an attorney's fee to successful lien claimants but not to successful defendants. Davidson v. Jennings, 27 Colo. 187, 60 Pac. 354, 48 L. R. A. 340, 83 Am. St. 49. Such fees are allowed in Florida. Dell v. Marvin, 41 Fla. 221, 26 So. 188, 45 L. R. A. 201, 79 Am. St. 171. Further proceedings in an action may be stayed until costs of an appeal are paid. Knee v. Baltimore City Pass. Ry. Co., 87 Md. 623, 40 Atl. 890, 42 L. R. A. 363. A person is not deprived of property or particular services without compensation by a statute which compels him to appear before the court and testify in criminal cases, and deprives him of all right to fees therefor or makes such right contingent upon conviction of accused. State v. Henley, 98 Tenn. 665, 41 S. W. 352, 39 L. R. A. 126. And an expert witness can not claim higher fees than other witnesses, nor can he refuse to testify until such Other clauses are sometimes added declaratory of the principles of morality and virtue; and it is also sometimes expressly declared what indeed is implied without the declaration that everything in the declaration of rights contained is excepted out of the general powers of government, and all laws contrary thereto shall be void. Many other things are commonly found in these charters of government; but since, while they continue in force, they are to remain absolute and unchangeable rules of action and decision, it is obvious that they should not be made to embrace within their iron grasp those subjects in regard to which the policy or interest of the State or of its people may vary from time to time, and which are therefore more properly left to the control of the legislature, which can more easily and speedily make the required changes. In considering State constitutions we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed. "What is a constitution, and what are its objects? It is easier to tell what it is not than what it is. It is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government; it is not the cause, but consequence, of personal and political freedom; it grants no rights to the people, but is the creature of their power, the instrument of their convenience. Designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made, it is but the frame 1 "This, then, is the office of a written [free] constitution: to delegate to various public functionaries such of the powers of government as the people do not intend to exercise for themselves; to classify these powers, according to their nature, and to commit them to separate agents; to provide for the choice of these agents by the people; to ascertain, limit, and define the extent of the authority thus delegated; and to reserve to the people their sovereignty over all things not expressly committed to their representatives." E. P. Hurlbut in Human Rights and their Political Guaranties. fees are secured to him. Dixon v. People, 168 Ill. 179, 48 N. E. 108, 39 L. R. A. 116; upon right of State to require services of witnesses without compensation, see note to Dixon v. People, above, in L. R. A. Moderate court fees may be exacted of parties to legal proceedings. Northern Counties Invt. Trust v. Sears, 30 Or. 388, 41 Pac. 931, 35 L. R. A. 188. Repeal of statute giving right of action against county for injury resulting from defective bridge does not violate a provision that every man shall have remedy by due course of law for all injuries done him. Templeton v. Linn. Co., 22 Oreg. 313, 29 Pac. 795, 15 L. R. A. 730. Proceedings in a second action in ejectment may be stayed until costs in the first are paid. Shear v. Box, 92 Ala. 596, 8 So. 792, 11 L. R. A. 620, and note.] work of the political government, and necessarily based upon the pre-existing condition of laws, rights, habits, and modes of thought. There is nothing primitive in it: it is all derived. from a known source. It presupposes an organized society, law, order, property, personal freedom, a love of political liberty, and enough of cultivated intelligence to know how to guard it against the encroachments of tyranny. A written constitution is in every instance a limitation upon the powers of government in the hands of agents; for there never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extent and incapable of definition." 1 1 Hamilton v. St. Louis County Court, 15 Mo. 13, per Bates, arguendo. And see Matter of Oliver Lee & Co.'s Bank, 21 N. Y. 9; Lee v. State, 26 Ark. 265-6. "Written constitutions sanctify and confirm great principles, but the latter are prior in existence to the former." 2 Webster's Works, 392. See also 1 Bl. Com. 124; 2 Story, Life and Letters, 278; Sidney on Government, c. 3, secs. 27 and 33. "If this charter of State government which we call a constitution were all there was of constitutional command; if the usages, the customs, the maxims that have sprung from the habits of life, modes of thought, methods of trying facts by the neighborhood, and mutual responsibility in neighborhood interests; the precepts that have come to us from the revolutions which overturned tyrannies; the sentiments of manly independence and self-control which impelled our ancestors to summon the local community |