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II. Powers of the State Legislatures. See ante, 3, 6; TAXATION, 2.
8. A statute of Louisiana prescribed that a commission should be primà
facie proof of right to judicial office, and if any incumbent refused to vacate
he should be cited by rule returnable within twenty-four hours to present his
claim for adjudication before a court, which should hear the case without a
jury, and its determination should be final unless appealed from within one
day. This was “due process of law." Kennard v. State of Louisiana, 551.
9. A change of estates in fce-tail to estates in See-simple by statute is not
an interference with vested rights, nor beyond legitimate legislative power,
Pollock v. Speidel, 551.
10. The provision of the Constitution of Missouri, which ordains, “ The
General Assembly shall have no power, for any purpose whatever, to release
the lien held by the state upon any railroad,” was not meant, in case of a
failure by the railroad companies, to prevent the state from making a com-
promise with any railroad company of any debt due to it or to become due ;
and on the compromise being effected to release the lien. Woodson y, Mur-
11. A state has the power to subject the property of non-residents, within
its territorial limits, to the satisfaction of the claims of her citizens by any
mode of procedure which it may deem proper and convenient, and therefore
may, for such purpose, authorize a judgment to be given against such non-
resident prior to seizure of such property and with or without notice of the
proceeding. Net v. Pennoyer, 367.
12. But where a title depending on such ex parte action comes before a
court of another jurisdiction, the proceedings will be closely cxamined to see
that all the statutory requirements for their validity have been complied with.
13. The common-law presumption in favor of the jurisdiction and regular-
ity of the proceedings of courts of record of general jurisdiction, had its origin
in the fact that at common law no judgment could be given against a defend-
ant until he had appeared in the action ; but no such presumption does or
ought to apply in cases where the defendant is a non-resident, and there was
no appearance, and only constructive service of the summons by publication.
14. A local option law submitting to the people the allowing of licenses to
sell liquor is not a delegation of legislative power. Fell v. The State, 310.
15. A license to sell liquor is in no sense a contract made by the state with
the party holding the license. It is a mere permit, subject to be modified or
annulled at the pleasure of the legislature. Id.
16. Where a law is signed by the speakers of both houses, and approved
by the governor, there is a presumption, only to be overcome by clear proof,
that it has been legally and constitutionally passed. Larrison v. Peoria, At-
lanta & Decatur Railroad Co., 438.
17. A license tax required for the sale of goods is in effect a tax upon the
goods themselves. Welton v. State of Missouri, 165.
18. A statute of Missouri which requires the payment of a license tax from
persons who deal in the sale of goods, which are not the produce of the state,
by going from place to place to sell the same in the state, and requires no
such license tax from persons selling in a similar way goods which are the
produce of the state, is unconstitutional. Id.
19. The inaction of Congress in prescribing rules to govern inter-state
commerce is equivalent to its declaration that such commerce shall be frec
from any restrictions. Id.
20. A tax demanded of the master or owner of a vessel for cach passenger
is a regulation of commerce by the state, in conflict with the Constitution and
laws of the United States, and therefore void. Fienderson v. Wickam, 740.
21. As to statute of California taxing immigration. Chy Lung v. Freeman,
22. If the right of the states to pass statntes to protect themselves in regard
to the criminal, the pauper and the discased foreigner landing within their
borders, exists at all, it is limited to such laws as are absolutely necessary
for that purpose. Id.
23. The legislature may, in matters purely local and municipal, enact
conditional laws, and permit the people or proper municipal anthorities to
decide whether such laws shall have force in their respective municipalities.
Slinger v. Hansman, 185.
III. Taking Prirate Property--Eminent Domain. Sec Courts, 6.
24. After damages have been assessel, on a condemnation of land for al
railroad, the trees which may be useful in the construction of the road, stand-
ing on the tract taken, become the property of the company. Taylor v. Nev
York 8. Long Branch Railrond Co., 122.
25. Where a legal and illegal assessment for benefits are so blended that
they cannot be separated, the whole assessment will be set aside ; but appli-
cation may be made for a re-assessment. Sate v. Plainfield, 122.
26. Where the charter provides for constructive notice of improvements by
publication, personal notice is not required. Sate, Boice pro;., v. Plainfied,
27. It is the right of a landowner especially affected by a public improve.
ment, to be informed either by actual or constructive notice of the time and
place appointed for the meeting of counsel to consider their proposed action. Id.
28. Right AND POWER OF EMINENT Domain IN THE NATIONAL Gov.
29. The laying of taxes is a legislative function, and the policy and expe-
diency of it, as well as its amount, are questions exclusively for that depart-
ment of the state. Perry et al. v. City of krene, 397.
30. There is no abstract legal principle by which to determine whether a
use is public; a court must decide it as a conclusion of fact and public policy,
in the same manner as the legislaturc. Hence. while it is clearly the duty
of a court to determine finally what is a public purpose, it will only decide
adversely to the judgment of the legislature in a clear casc.
31. If a purpose is public, it makes no difference that the agent by whom
it is to be carried out is a private individual or corporation. ld.
32. The building of a railroad is a public purpose ; and a statute authoriz-
ing a town to vote money to aid in such purpose, even thongh the money is
to be given as a gratuity and not as a subscription to stock, is not unconstitu-
tional as a taking of private property for a private use. Id.
33. The right of eminent domain is inherent in all governments. For all
purposes required by the constitution, this right exists in ihe United States
independently of any consent of the state in which the property lies. kohl
v. Unitrd Stutes, 514.
34. Such state can neither control the right nor prescribe the mode of its
exercise. Its consent is necessary, if at all, only for the transfer of exclu-
sive jurisdiction and right of legislation after the land has been acquired. Id.
35. Semble, a state has no power to condemn and take lands for the use
of the United States. The correct mode is a proceeding by the United States
36. The word purchase is technically large enough to include an acquisi.
tion by taking under the right of eminent domain, but as used in statutes
generally it means only an acquisition by contract between the parties with-
out government interference. In connection, however, with the words “ at
private sale or by condemnation," it includes the authority to take land by
virtue of cmincnt domain. Id.
37. A proceeding to take lands for public use, is a suit at common law
within the language of the Judiciary Act of 1789, and where Congress has
not prescribed any other tribunal, the Circuit Court has jurisdiction. Id.
IV, Military Courts.
38. The Constitution did not prohibit the creation by military authority of
courts for the trial of civil causes during the civil war in conquered portions
of the insurgent states. The establishment of such courts was the exercise
of the ordinary rights of conquest. Mechanics and Traders' Bunk v. Union
39. Whether such court acted within its jurisdiction in a case where one bank
of the state of Louisiana was claiming from another bank of the same state in a
large sum of money, is a question exclusively for the state tribunals. Id.
V. Powers of Judiciary. See ante 3, 30; CORPORATION, 9.
40. The right of ihe judiciary to declare a statute void for unconstitution.
ality is only to be exercised in clear coses, and this rule applies with especial
force to decisions upon motions for provisional injunctions. Lothrop v. Sted-
VI. Title of Act.
41. It is sufficient if the title of an act fairly give notice of its subject so as
reasonably to lead to an inquiry into the body of the bill. State Line Rail.
road Co.'s Appeal, 119.
Punishments for contempt of court have two aspects, namely : 1. To vindi-
cate the dignity of the court ; 2. To compel the performance of some order
or decree. In re Chiles, 120.
CONTRACT. See CONFEDERATE STATES, 4; CORPORATION, 9, 10; HUSBAND
AND WIFE, 7.
1. Government bonds were deposited in a bank ; the depositor alleged that
the bank bought them from him at par, fraudulently informing him that there
was no premium on them, when there was, within the knowledge of the bank.
The depositor sued the bank for the premium and declared in the common
money counts : Held, that the depositor could not recover on those counts.
Sankey's Executors v. Bank, 309.
2. If the bonds were purchased by the bank in good faith at par, although
they were then selling in the market at a premium, of which both parties
were ignorant, the depositor could not, on the ground of mutual mistake, re-
cover the bonds or the premium on them. Id.
3. The agent of a foreign liquor-selling establishment obtains an order
which he sends to his employers for approval. Held, that there is no com-
pleted contract until the order is approved and accepted, and that if that is
done outside of the state, it is a foreign contract, and not void as in violation
of the liquor law of Michigan. Kling v. Fries, 381.
4. Ilegality and bad faith are not to be presumed against a foreign con-
tract, but must be shown. Id.
5. Agreements in restraint of trade to be valid must be limited in time or
partial in their operation and supported by a sufficient consideration. Hark-
inson's Appeal, 376.
6. That a court of equity may enjoin against the free exercise of a trade,
the violation of the agreement should not be doubtful. Id.
7. When damages will compensate the benefit derived or the loss suffered,
equity will not interfere by injunction. Id.
8. A contract having for its consideration an agreement to suppress a crim-
inal prosecution is void. Kimbrough v. Lane, 389.
9. It is equally so, if any part of the consideration was the suppression of
the prosecution, and whether the contract was induced by promises or threats
on one side or the other, I.
10. It is not necessary that the promise should be made at the same time
as the contract; it is sufficient if it was made prior thereto, and was acted
upon as a part of the consideration or inducement. Id.
11. Nor does it make any difference that a prosecution is already commenced
and is in the hands and under the control of the Commonwealth's officer, if
the private prosecutor, as consideration for the contract, promises to abandon
his own efforts in the course of justice. The particular interest of the party in-
jured, in bringing the offender to justice, is one of the securities of the public
in the enforcement of the laws, and any agreement by which this interese is
turned against the Commonwealth is void. Id.
12. Terms are to be interpreted in the sense the parties employ them, though
contrary to the accepted meaning. But such special meaning must be plain.
McCoy v. Transportation Co., 438.
13. As to conditional subscription to stock. See Baker v. White, 552.
14. A contract signed by one party and accepted by the other is binding
on both. Brandon Manufacturing Co. v. Morse, 680.
15. A written contract for the sale and delivery of a certain quantity of
wood at a stipulated price per cord, not, in terms, fixing the time of payment,
is payable on demand after delivery. Brandon Manufacturing Co. v. Morse,
16. Where the secretary of the navy possesses the power to enter into con-
tracts for the construction of vessels of war, and a suspension of the work
is ordered, he is authorized to settle with the contractor upon the compensation
to be paid for the partial performance of the contracts, and such a setilement
made in good faith is equally binding upon the government as upon the con-
tractor, United States v. Corliss Steam Engine Co., 619.
17. Defendant bought 4000 barrels of oil from plaintiff, and eight similar
papers of same date were executed by them, each for the delivery of 500
barrels on the last day of consecutive months, payment to be made on each
delivery. Held, not to be an entire contract, Morgan v. Mckee, 54.
18. The plaintiff, on demand, refused to deliver the oil duc on one of the
appointed days; the defendant, on the next day for delivery, gave notice of
rescission, on the ground of the previous default. lleld, the plaintiff might
recover for refusal of defendant to accept and pay for the oil which was ten-
dered on the days appointed for the subsequent deliveries. Id.
19. The right to rescind a contract must be exercised within a reasonable
time after the breach. What is a reasonable time, is for the court. Id.
20. Evidence was inadmissible, that at the time of the purchase it was
agreed that it was an entire contract, and that the several papers were exe-
cuted with that understanding and according to the custom of the trade. Id.
21. A simple contract given for the same debt will merge in a specialty,
except where one is intended to be simply collateral to the other. Leonard
v. Ilughleti, 59.
22. The policy of the law forbids that a person acting as the friend and
confidential adviser of a purchaser, should at the same time be secretly re-
ceiving compensation from the seller for effecting the sale ; and a contract
for such compensation is void. Bollman v. Loomis, 75 ; and see BROKER, 2, 3.
CORPORATION. See COMMON CARRIER, 6; CONTRACT, 13; Courts, 5;
JUDGMENT, 4 ; MASTER AND SERVANT, 7, 8; NATIONAL BANK, 2 ; Trust, 8.
1. The treasurer of a corporation is the proper officer charged by law with
the custody of its funds, and responsible for their safe-keeping. The direc-
tors cannot lawfully deprive the corporation of the benefit of this responsi-
bility by depositing the funds with others for safe-keeping, and may be
restrained by injunction from so doing. Pearson v. Tower, 120.
2. Employees of a defaulting railroad company are not to be considered as
creditors at large of the company in regard to their claims for wages in ar-
rears at the me of the appointment of a receiver for the company. Duncan
v. Chesapeake g. Ohio Railroad Co., 428.
3. When mortgagees come into a court of equity seeking satisfaction of
their claims against a railroad company by suit for foreclosure, they should be
required to satisfy all arrcarages of pay due employees out of the trust pro-
perty or its future earnings. Id.
4. A foreign corporation can do business in Ohio. Neuburg Petroleum Co.
v. Weare, 741.
5. A subscription to the capital stock of a railroad company on the condi-
tion that its railroad shall pass through a certain place, becomes absolute on
the location of the road through the place named. Mansfield, foc., Railroad
Co. v. Stout, 680.
6. County authorities cannot hold out any offer to a railroad company to sub-
scribe to its stock, prior to any vote of the people, upon which the company
has a right to rely. The People v. Car Co., 446.
7. The principle that a stockholder of a company cannot maintain a bill
in equity against a wrongdoer to prevent an injury to the corporation, unless
it shall be averred, and shall affirmatively appear, that the corporation has
refused to take measures to protect itself, does not extend to a bill which is
in good faith filed by a creditor. Lathrop v. Stedman, 346.
8. A holder of a policy in an insurance company is a creditor within this
rule. Lathrop v. Stedman, 346.
9. A charter is a contract between the state and the corporators, and the
corporation takes the grant subject to the limitations contained in the act of
incorporation. If no power of repeal is reserveil, none can be exercised ;
but when a charter itself or a general statute provides that the charter is sub-
ject to repeal by the legislature, at its pleasure, without restrictions or condi-
tions limiting the power of repeal, the legislature has the right to exercise its
power summarily and at will, and its action, being a legislative anıl not a
judicial act, cannot be reviewed by the courts, unless it should exercise its
power so wantonly and carelessly as to palpably violate the principles of nat-
ural justice. Id.
10. A repeal of a charter does not of itself violate or impair the obliga-
tions of any contract which the corporation has entered into. But the legis-
lature cannot establish such rules in regard to the management and disposition
of the assets of the corporation, that the avails shall be diverted from or di-
vided unfairly and unequally among the creditors, and thus impair the obli-
gation of contracts, or that the portion of the avails which belongs to the
stockholders shall be sequestered and diverted from the owners, and thus in-
jure vested rights. Id.
11. The legislature has the right to appoint a trustee, to take the assets and
manage the affairs of a corporation, whose charter has been repealed, in con-
formity with the general, just rules which it has prescribed, or with the rules
of a court of equity, if no statutory provisions have been enacted. If no
trustee is appointed by the legislature, a court of equity, which never allows
a trust to fail for the want of a trustee, would see to the execution of that
trust, although by the dissolution of the corporation the legal title to the
property had been changed. Id.
12. A shareholder may personally maintain a hill ngainst directors of a
corporation who have fraudulently mismanaged its affairs. Tvatt's Appeal,
13. When an act of directors is in excess of their authority, but done with
a bona fide intent of benefiting the corporation, and a shareholder, knowing
of it, does not dissent within a reasonable time, his assent will be presumed,
and he cannot gainsay it ; and when the act of the directors complained of is
to be followed by a large expenditure, the shareholder should not only make
his protest within a reasonable time, but should follow it up by active pre-
ventive measures. Id.
14. Six years' omission to proceed would be a bar to an action against
directors for the misuse of the corporate property. Id.
15. The stockholders directed public sales of their lands, and that payment
might be made in cash and in their bonds : Ileld, the payment in bonds was
equivalent to cash. Id.
16. Directors bought at the sales at fair prices, and the sales were con-
ducted openly and fairly : lleld, the sales to them were valid. Id.
17. Directors of a railway company cannot gratuitously give away certifi-
cates of stock to contractors building the road, for the purpose of giving them
a controlling influence in the election of its officers. Railroad Co. v. Kelley,
18. Merger depends largely on intention, and this rule applies to a case
where a corporation purchases shares of its own stock. The purchase sus-
pends the right to vote on the shares, and may be a merger if so intended ;
but if not so intended, it is not a merger, and the presumption is that the cor-
poration does not intend a merger, but to hold the stock as assets, or to sell
and reissue it. State ex rel, Page v. Smith, 466.
19. A quorum of the directors of a corporation are competent to act within
the scope of their powers and to bind the corporation, although the meeting
was not regularly called and there was no notice to the other directors. Id.
20. A sale of the company's shares of its own stock, made at such a meet
ing of the directors, if made bona fide and for full value, and for the purpose
of raising money to meet an urgent necessity of the company passed a good