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Henderson v. Mayor of the City of New York/Opinion of the Court

In the case of the City of New York v. Miln, reported in 11 Pet. 103, the question of the constitutionality of a statute of the State concerning passengers in vessels coming to the port of New York was considered by this court. It was an act passed Feb. 11, 1824, consisting of several sections. The first section, the only one passed upon by the court, required the master of every ship or vessel arriving in the port of New York from any country out of the United States, or from any other State of the United States, to make report in writing, and on oath, within twenty-four hours after his arrival, to the mayor of the city, of the name, place of birth, last legal settlement, age, and occupation of every person brought as a passenger from any country out of the United States, or from any of the United States into the port of New York, or into any of the United States, and of all persons landed from the ship, or put on board, or suffered to go on board, any other vessel during the voyage, with intent of proceeding to the city of New York. A penalty was prescribed of seventy-five dollars for each passenger not so reported, and for every person whose name, place of birth, last legal settlement, age, and occupation should be falsely reported.

The other sections required him to give bond, on the demand of the mayor, to save harmless the city from all expense of support and maintenance of such passenger, or to return any passenger, deemed liable to become a charge, to his last place of settlement; and required each passenger, not a citizen of the United States, to make report of himself to the mayor, stating his age, occupation, the name of the vessel in which he arrived, the place where he landed, and name of the commander of the vessel. We gather from the report of the case that the defendant, Miln, was sued for the penalties claimed for refusing to make the report required in the first section. A division of opinion was certified by the judges of the Circuit Court on the question, whether the act assumes to regulate commerce between the port of New York and foreign ports, and is unconstitutional and void.

This court, expressly limiting its decision to the first section of the act, held that it fell within the police powers of the States, and was not in conflict with the Federal Constitution.

From this decision Mr. Justice Story dissented, and in his opinion stated that Chief Justice Marshall, who had died between the first and the second argument of the case, fully concurred with him in the view that the statute of New York was void, because it was a regulation of commerce forbidden to the States.

In the Passenger Cases, reported in 7 How. 283, the branch of the statute not passed upon in the preceding case came under consideration in this court. It was not the same statute, but was a law relating to the marine hospital on Staten Island. It authorized the health commissioner to demand, and, if not paid, to sue for and recover, from the master of every vessel arriving in the port of New York from a foreign port, one dollar and fifty cents for each cabin passenger, and one dollar for each steerage passenger, mate, sailor, or mariner, and from the master of each coasting vessel twenty-five cents for each person on board. These moneys were to be appropriated to the use of the hospital.

The defendant, Smith, who was sued for the sum of $295 for refusing to pay for 295 steerage passengers on board the British ship 'Henry Bliss,' of which he was master, demurred to the declaration on the ground that the act was contrary to the Constitution of the United States, and void. From a judgment against him, affirmed in the Court of Errors of the State of New York, he sued out a writ of error, on which the question was brought to this court.

It was here held, at the January Term, 1849, that the statute was 'repugnant to the constitution and laws of the United States, and therefore void.' 7 How. 572.

Immediately after this decision, the State of New York modified her statute on that subject, with a view, no doubt, to avoid the constitutional objection; and amendments and alterations have continued to be made up to the present time.

As the law not stands, the master or owner of every vessel landing passengers from a foreign port is bound to make a report similar to the one recited in the statute held to be valid in the case of New York v. Miln; and on this report the mayor is to indorse a demand upon the master or owner that he give a bond for every passenger landed in the city, in the penal sum of $300, conditioned to indemnify the commissioners of emigration, and every county, city, and town in the State, against any expense for the relief or support of the person named in the bond for four years thereafter; but the owner or consignee may commute for such bond, and be released from giving it, by paying, within twenty-four hours after the landing of the passengers, the sum of one dollar and fifty cents for each one of them. If neither the bond be given nor the sum paid within the twenty-four hours, a penalty of $500 for each pauper is incurred, which is made a lien on the vessel, collectible by attachment at the suit of the Commissioner of Emigration.

Conceding the authority of the Passenger Cases, which will be more fully considered hereafter, it is argued that the change in the statute now relied upon requiring primarily a bond for each passenger landed, as an indemnity against his becoming a future charge to the state or county, leaving it optional with the ship-owner to avoid this by paying a fixed sum for each passenger, takes it out of the principle of the case of Smith v. Turner,-the Passenger Case from New York. It is said that the statute in that case was a direct tax on the passenger, since the act authorized the shipmaster to collect it of him, and that on that ground alone was it held void; while in the present case the requirement of the bond is but a suitable regulation under the power of the State to protect its cities and towns from the expense of supporting persons who are paupers or diseased, or helpless women and children, coming from foreign countries.

In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect; and if it is apparent that the object of this statute, as judged by that criterion, is to compel the owners of vessels to pay a sum of money for every passenger brought by them from a foreign shore, and landed at the port of New York, it is as much a tax on passengers if collected from them, or a tax on the vessel or owners for the exercise of the right of landing their passengers in that city, as was the statute held void in the Passenger Cases.

To require a heavy and almost impossible condition to the exercise of this right, with the alternative of payment of a small sum of money, is, in effect, to demand payment of that sum. To suppose that a vessel, which once a month lands from three hundred to one thousand passengers, or from three thousand to twelve thousand per annum, will give that many bonds of $300 with good sureties, with a covenant for four years, against accident, disease, or poverty of the passenger named in such bond, is absurd, when this can be avoided by the payment of one dollar and fifty cents collected of the passenger before he embarks on the vessel.

Such bonds would amount in many instances, for every voyage, to more than the value of the vessel. The liability on the bond would be, through a long lapse of time, contingent on circumstances which the bondsman could neither foresee nor control. The cost of preparing the bond and approving sureties, with the trouble incident to it in each case, is greater than the sum required to be paid as commutation. It is inevitable, under such a law, that the money would be paid for each passenger, or the statute resisted or evaded. It is a law in its purpose and effect imposing a tax on the owner of the vessel for the privilege of landing in New York passengers transported from foreign countries.

It is said that the purpose of the act is to protect the State against the consequences of the flood of pauperism immigrating from Europe, and first landing in that city.

But it is a strange mode of doing this to tax every passenger alike who comes from abroad.

The man who brings with him important additions to the wealth of the country, and the man who is perfectly free from disease, and brings to aid the industry of the country a stout heart and a strong arm, are as much the subject of the tax as the diseased pauper who may become the object of the charity of the city the day after he lands from the vessel.

No just rule can make the citizen of France landing from an English vessel on our shore liable for the support of an English or Irish pauper who lands at the same time from the same vessel.

So far as the authority of the cases of New York v. Miln and Passenger Cases can be received as conclusive, they decide that the requirement of a catalogue of passengers, with statements of their last residence, and other matters of that character, is a proper exercise of State authority and that the requirement of the bond, or the alternative payment of money for each passenger, is void, because forbidden by the constitution and laws of the United States. But the Passenger Cases (so called because a similar statute of the State of Massachusetts was the subject of consideration at the same term with that of New York) were decided by a bare majority of the court. Justices McLean, Wayne, Catron, McKinley, and Grier held both statutes void; while Chief Justice Taney, and Justices Daniel, Nelson, and Woodbury, held them valid. Each member of the court delivered a separate opinion, giving the reasons for his judgment, except Judge Nelson, none of them professing to be the authoritative opinion of the court. Nor is there to be found, in the reasons given by the judges who constituted the majority, such harmony of views as would give that weight to the decision which it lacks by reason of the divided judgments of the members of the court. Under these circumstances, with three cases before us arising under statutes of three different States on the same subject, which have been discussed as though open in this court to all considerations bearing upon the question, we approach it with the hope of attaining a unanimity not found in the opinions of our predecessors.

As already indicated, the provisions of the Constitution of the United States, on which the principal reliance is placed to make void the statute of New York, is that which gives to Congress the power 'to regulate commerce with foreign nations.' As was said in United States v. Holliday, 3 Wall. 417, 'commerce with foreign nations means commerce between citizens of the United States and citizens or subjects of foreign governments.' It means trade, and it means intercourse. It means commercial intercourse between nations, and parts of nations, in all its branches. It includes navigation, as the principal means by which foreign intercourse is effected. To regulate this trade and intercourse is to prescribe the rules by whict it shall be conducted. 'The mind,' says the great Chief Justice, 'can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of one nation into the ports of another;' and he might have added, with equal force, which prescribed no terms for the admission of their cargo or their passengers. Gibbons v. Ogden, 9 Wheat. 190.

Since the delivery of the opinion in that case, which has become the accepted canon of construction of this clause of the Constitution, as far as it extends, the transportation of passengers from European ports to those of the United States has attained a magnitude and importance far beyond its proportion at that time to other branches of commerce. It has become a part of our commerce with foreign nations, of vast interest to this country, as well as to the immigrants who come among us to find a welcome and a home within our borders. In addition to the wealth which some of them bring, they bring still more largely the labor which we need to till our soil, build our railroads, and develop the latent resources of the country in its minerals, its manufactures, and its agriculture. Is the regulation of this great system a regulation of commerce? Can it be doubted that a law which prescribes the terms on which vessels shall engage in it is a law regulating this branch of commerce?

The transportation of a passenger from Liverpool to the city of New York is one voyage. It is not completed until the passenger is disembarked at the pier in the latter city. A law or a rule emanating from any lawful authority, which prescribes terms or conditions on which alone the vessel can discharge its passengers, is a regulation of commerce; and, in case of vessels and passengers coming from foreign ports, in a regulation of commerce with foreign nations.

The accuracy of these definitions is scarcely denied by the advocates of the State statutes. But assuming, that, in the formation of our government, certain powers necessary to the administration of their internal affairs are reserved to the States, and that among these powers are those for the preservation of good order, of the health and comfort of the citizens, and their protection against pauperism and against contagious and infectious diseases, and other matters of legislation of like character, they insist that the power here exercised falls within this class, and belongs rightfully to the States.

This power, frequently referred to in the decisions of this court, has been, in general terms, somewhat loosely called the police power. It is not necessary for the course of this discussion to attempt to define it more accurately than it has been defined already. It is not necessary, because whatever may be the nature and extent of that power, where not otherwise restricted, no definition of it, and no urgency for its use, can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution.

Nothing is gained in the argument by calling it the police power. Very many statutes, when the authority on which their enactments rest is examined, may be referred to different sources or power, and supported equally well under any of them. A statute may at the same time be an exercise of the taxing power and of the power of eminent domain. A statute punishing counterfeiting may be for the protection of the private citizen against fraud, and a measure for the protection of the currency and for the safety of the government which issues it. It must occur very often that the shading which marks the line between one class of legislation and another is very nice, and not easily distinguishable.

But, however difficult this may be, it is clear, from the nature of our complex form of government, that, whenever the statute of a State invades the domain of legislation which belongs exclusively to the Congress of the United States, it is void, no matter under what class of powers it may fall, or how closely allied to powers conceded to belong to the States.

'It has been contended,' says Marshall C. J., 'that if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject and each other like equal opposing powers. But the framers of our Constitution foresaw this state of things, and provided for it by declaring the supremacy, not only of itself, but of the laws made in pursuance thereof. The nullity of any act inconsistent with the Constitution is produced by the declaration that the Constitution is supreme.' Where the Federal government has acted, he says, 'In every such case the act of Congress or the treaty is supreme; and the laws of the State, though enacted in the exercise of powers not controverted, must yield to it.' 9 Wheat. 210.

It is said, however, that, under the decisions of this court, there is a kind of neutral ground, especially in that covered by the regulation of commerce, which may be occupied by the State, and its legislation be valid so long as it interferes with no act of Congress, or treaty of the United States. Such a proposition is supported by the opinions of several of the judges in the Passenger Cases; by the decisions of this court in Cooly v. The Board of Wardens, 12 How. 299; and by the cases of Crandall v. Nevada, 6 Wall. 35, and Gilman v. Philadelphia, 3 Wall. 713. But this doctrine has always been controverted in this court, and has seldom, if ever, been stated without dissent. These decisions, however, all agree, that under the commerce clause of the Constitution, or within its compass, there are powers, which, from their nature, are exclusive in Congress; and, in the case of Cooly v. The Board of Wardens, it was said, that 'whatever subjects of this power are in their nature national, or admit of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress.' A regulation which imposes onerous, perhaps impossible, conditions on those engaged in active commerce with foreign nations, must of necessity be national in its character. It is more than this; for it may properly be called international. It belongs to that class of laws which concern the exterior relation of this whole nation with other nations and governments. If our government should make the restrictions of these burdens on commerce the subject of a treaty, there could be no doubt that such a treaty would fall within the power conferred on the President and the Senate by the Constitution. It is in fact, in an eminent degree, a subject which concerns our international relations, in regard to which foreign nations ought to be considered and their rights respected, whether the rule be established by treaty or by legislation.

It is equally clear that the matter of these statutes may be, and ought to be, the subject of a uniform system or plan. The laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco. A striking evidence of the truth of this proposition is to be found in the similarity, we might almost say in the identity, of the statutes of New York, of Louisiana, and California, now before us for consideration in these three cases.

It is apparent, therefore, that, if there be a class of laws which may be valid when passed by the States until the same ground is occupied by a treaty or an act of Congress, this statute is not of that class.

The argument has been pressed with some earnestness, that inasmuch as this statute does not come into operation until twenty-four hours after the passenger has landed, and has mingled with, or has the right to mingle with, the mass of the population, he is withdrawn from the influence of any laws which Congress might pass on the subject, and remitted to the laws of the State as its own citizens are. It might be a sufficient answer to say that this is a mere evasion of the protection which the foreigner has a right to expect from the Federal government when he lands here a stranger, owing allegiance to another government, and looking to it for such protection as grows out of his relation to that government.

But the branch of the statute which we are considering is directed to and operates directly on the ship-owner. It holds him responsible for what he has done before the twenty-fourt hours commence. He is to give the bond or pay the money because he has landed the passenger, and he is given twentyfour hours' time to do this before the penalty attaches. When he is sued for this penalty, it is not because the man has been here twenty-four hours, but because he brought him here, and failed to give the bond or pay one dollar and fifty cents.

The effective operation of this law commences at the other end of the voyage. The master requires of the passenger, before he is admitted on board, as a part of the passage-money the sum which he knows he must pay for the privilege of landing him in New York. It is, as we have already said, in effect a tax on the passenger, which he pays for the right to make the voyage,-a voyage only completed when he lands on the American shore. The case does not even require us to consider at what period after his arrival the passenger himself passes from the sole protection of the constitution, laws, and treaties of the United States, and becomes subject to such laws as the State may rightfully pass, as was the case in regard to importations of merchandise in Brown v. Maryland, 12 Wheat. 417, and in the License Cases, 5 How. 504.

It is too clear for argument that this demand of the owner of the vessel for a bond or money on account of every passenger landed by him from a foreign shore is, if valid, an obligation which he incurs by bringing the passenger here, and which is perfect the moment he leaves the vessel.

We are of opinion that this whole subject has been con fided to Congress by the Constitution; that Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long been matter of contest and complaint, may be effectually and satisfactorily settled.

Whether, in the absence of such action, the States can, or how far they can, by appropriate legislation, protect themselves against actual paupers, vagrants, criminals, and diseased persons, arriving in their territory from foreign countries, we do not The portions of the New York statute which concern persons who, on inspection, are found to belong to these classes, are not properly before us, because the relief sought is to the part of the statute applicable to all passengers alike, and is the only relief which can be given on this bill.

The decree of the Circuit Court of New York, in the case of Henderson et al. v. Mayor of the City of New York et al., is reversed, and the case remanded, with direction to enter a decree for an injunction in accordance with this opinion.

The statute of Louisiana, which is involved in the case of Commissioners of Immigration v. North German Lloyd, is so very similar to, if not an exact copy of, that of New York, as to need no separate consideration. In this case the relief sought was against exacting the bonds or paying the commutation-money as to all passengers, which relief the Circuit Court granted by an appropriate injunction; and the decree in that case is accordingly affirmed.


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 The real occasion for such change of an aristocracy, however, will be that such absolute justification of the regulating system scarcely ever exists. The lordship of the few over the many is likely to rest rather on a totally different basis, and not on the ideal appropriateness of this relation. Under these circumstances the ruling class will have the utmost interest in affording the least occasion for movements toward disturbance and innovation, for every movement of that sort would stimulate the rightful or supposed claims of the ruled. There is danger in this case that not the persons merely, but the whole constitution, might be changed, and this is the decisive period for our course of thought. The very fact that violent changes in the personnel of the ruling class have often been brought about with the assistance of the masses calls attention to the possibility, which has not seldom become a reality, that on such an occasion the whole aristocratic principle may be overturned. Because of this connection the aristocratic form of constitution will maintain itself best through the utmost immobility of its status. This by no means holds good for political purposes alone. It is true also for ecclesiastical, family, and social groupings into which the aristocratic form may enter. In general, so soon as this form has once established itself, a severe conservatism will be most favorable, not merely for the momentary personal standing of the regulating system, but also for its preservation in form and principle.

This often appears clearly enough in the history of reformatory movements in aristocratic constitutions. That adaptation to newly emerging social forces or ideals, such as takes place through diminution of exploitation and subjection, through legal definition of rights in place of arbitrary interpretation, through increase of the rights and of the shares of goods assigned to the lower classes—such adaptation is not wont, so far as it is a voluntary concession, to find its ultimate purpose in that which is changed by the concession, but rather in that which may be preserved by means of such concession. The limitation of the aristocratic prerogative is only the conditio sine qua non of saving the aristocratic regime at all. If the movement is allowed to go

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text: Talk:Henderson v. Mayor of the City of New York/Opinion of the Court


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 so far, however, these concessions no longer suffice. Each reform is likely to uncover new points demanding reform, and the movement which was inaugurated for the confirmation of the existing order leads, as though on an inclined plane, either to the overthrow of that order or, if the new demands cannot prevail, to a radical reaction which may reverse the changes already made. This danger which threatens at every modification and compliance of an aristocratic constitution, viz., that the concession made for the sake of self-preservation may by sheer force of its own specific gravity lead to a complete overthrow, exhibits conservatism, at the start, and the form of defense which is invariably rigid and unyielding, as most favorable for the aristocratic social form.

In case the form of the group is determined, not by the eminence of a numerically small stratum, but by the most extensive stratum and its autonomy, the self-preservation of the group will likewise be promoted by stability and unshaken firmness. An immediate influence in this direction is the fact that the great mass, in so far as it functions as the permanent vehicle of a social unity, is very rigid and immovable in its temper. The mass is in this respect very sharply distinguished from any multitude that may actually assemble. The latter is highly variable in its moods and acts, and may change its attitude from one extreme to another upon the most casual impulse. In case the mass is not roused by direct physical excitement and in consequence of stimulations and suggestions from opposite sides, nervous vacillation begins in place of firm direction, thus putting the mass at the mercy of every actual impulse; in case its deep and permanent character operates rather, the mass follows the law of inertia. It does not change its condition from rest or movement by its own initiative, but only as a result of the coöperation of new positive forces. Hence it is equally the case that movements which are carried on by great masses, and are left to themselves, move on consistently to their extreme, and on the other hand a once attained equilibrium of conditions is not easily abandoned, so far as the change depends on the mass. It corresponds better with the healthy instinct of the mass to guard


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Chy Lung v. Freeman

ERROR to the Supreme Court of the State of California.

Mr. Attorney-General Pierrepont for the plaintiff in error.

No opposing counsel.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Chy Lung v. Freeman


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 itself against change of circumstances and agitations by substantial firmness and rigidity of form rather than by pliable adaptation and quickly effected alteration of attitudes.

In the case of political constitutions, an additional element of essential importance is that the foundation of their social form upon that stratum which is most extensive and in which rights are most equal occurs chiefly among agricultural peoples—the old Roman peasant class and the old German community of free men are cases in point. Here the action of the social form is prejudiced by content of social interests. The cultivator of the soil is a priori conservative. His occupation requires long terms, abiding arrangements, resolute persistency. The uncertainties of the weather, upon which his fortunes hang, incline him to a certain fatalism, which shows itself, with respect to external powers, rather in enduring than in evading. His processes cannot be made to confront changes of conjunctions with such quick qualitative modifications as those of manufacturer or merchant. The technical conditions, therefore, create for groups whose form-maintenance is identical with that of a chiefly agricultural mass the disposition to procure this maintenance by firmness and persistence, not by variability of their life processes.

It is quite otherwise in case the middle class has undertaken leadership and the social form of the group stands or falls with the predominance of this middle class. This middle class alone has both an upper and a lower boundary. This is of such a sort that individuals are constantly brought within it both from the higher and from the lower class, and other individuals go from the middle class in either direction. The character of fluctuation is impressed on this stratum, therefore, and the appropriateness of its attitude will, therefore, be in large measure an appropriateness of adaptations, variations, concessions, through which the inevitable movement of the whole may be at least so guided or opposed that the essential form and force of the group may remain throughout all change of conditions. We may designate the sociological form of a group which is characterized by the extension and prevalence of a middle class as that of continuity.


text: Talk:Chy Lung v. Freeman

title: Talk:Chy Lung v. Freeman


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Chy Lung v. Freeman/Opinion of the Court

While this case presents for out consideration the same class of State statutes considered in Henderson et al. v. Mayor of the City of New York et al., and Commissioners of Immigration v. North German Lloyd, supra, p. 259, it differs from them in two very important points.

These are, First, The plaintiff in error was a passenger on a vessel from China, being a subject of the Emperor of China, and is held a prisoner because the owner or master of the vessel who brought her over refused to give a bond in the sum of $500 in gold, conditioned to indemnify all the counties, towns, and cities of California against liability for her support or maintenance for two years.

Secondly, The statute of California, unlike those of New York and Louisiana, does not require a bond for all passengers landing from a foreign country, but only for classes of passengers specifically described, among which are 'lewd and debauched women;' to which class it is alleged plaintiff belongs.

The plaintiff, with some twenty other women, on the arrival of the steamer 'Japan' from China, was singled out by the Commissioner of Immigration, an officer of the State of California, as belonging to that class, and the master of the vessel required to give the bond prescribed by law before he permitted them to land. This he refused to do, and detained them on board. They sued out a writ of habeas corpus, which by regular proceedings resulted in their committal, by order of the Supreme Court of the State, to the custody of the sheriff of the county and city of San Francisco, to await the return of the 'Japan,' which had left the port pending the progress of the case; the order being to remand them to that vessel on her return, to be removed from the State.

All of plaintiff's companions were released from the custody of the sheriff on a writ of habeas corpus issued by Mr. Justice Field of this court. But plaintiff by a writ of error brings the judgment of the Supreme Court of California to this court, for the purpose, as we suppose, of testing the constitutionality of the act under which she is held a prisoner. We regret very much, that, while the Attorney-General of the United States has deemed the matter of such importance as to argue it in person, there has been no argument in behalf of the State of California, the Commissioner of Immigration, or the Sheriff of San Francisco, in support of the authority by which plaintiff is held a prisoner; nor have we been furnished even with a brief in support of the statute of that State.

It is a most extraordinary statute. It provides that the Commissioner of Immigration is 'to satisfy himself whether or not any passenger who shall arrive in the State by vessels from any foreign port or place (who is not a citizen of the United States) is lunatic, idiotic, deaf, dumb, blind, crippled, or infirm, and is not accompanied by relatives who are able and willing to support him, or is likely to become a public charge, or has been a pauper in any other country, or is from sickness or disease (existing either at the time of sailing from the port of departure or at the time of his arrival in the State) a public charge, or likely soon to become so, or is a convicted criminal, or a lewd or debauched woman;' and no such person shall be permitted to land from the vessel, unless the master or owner or consignee shall give a separate bond in each case, conditioned to save harmless every county, city, and town of the State against any expense incurred for the relief, support, or care of such person for two years thereafter.

The commissioner is authorized to charge the sum of seventy-five cents for every examination of a passenger made by him; which sum he may collect of the master, owner, or consignee, or of the vessel by attachment. The bonds are to be prepared by the commissioner, and two sureties are required to each bond, and, for preparing the bond, the commissioner is allowed to charge and collect a fee of three dollars; and for each oath administered to a surety, concerning his sufficiency as such, he may charge one dollar. It is expressly provided that there shall be a separate bond for each passenger; that there shall be two sureties on each bond, and that the same sureties must not be on more than one bond; and they must in all cases be residents of the State.

If the ship-master or owner prefers, he may commute for these bonds by paying such a sum of money as the commissioner may in each case think proper to exact; and, after retaining twenty per cent of the commutation-money for his services, the commissioner is required once a month to deposit the balance with the Treasurer of the State. See c. 1, art. 7, of the Political Code of California, as modified by sect. 70 of the amendments of 1873, 1874.

If is hardly possible to conceive a statute more skilfully framed, to place in the hands of a single man the power to prevent entirely vessels engaged in a foreign trade, say with China, from carrying passengers, or to compel them to submit to systematic extortion of the grossest kind.

The commissioner has but to go aboard a vessel filled with passengers ignorant of our language and our laws, and without trial or hearing or evidence, but from the external appearances of persons with whose former habits he is unfamiliar, to point with his finger to twenty, as in this case, or a hundred if he chooses, and say to the master, 'These are idiots, these are paupers, these are convicted criminals, these are lewd women, and these others are debauched women. I have here a hundred blank forms of bonds, printed. I require you to fill me up and sign each of these for $500 in gold, and that you furnish me two hundred different men, residents of this State, and of sufficient means, as sureties on these bonds. I charge you five dollars in each case for preparing the bond and swearing your sureties; and I charge you seventy-five cents each for examining these passengers, and all others you have on board. If you don't do this, you are forbidden to land your passengers under a heavy penalty. But I have the power to commute with you for all this for any sum I may choose to take in cash. I am open to an offer; for you must remember that twenty per cent of all I can get out of you goes into my own pocket, and the remainder into the treasury of California.' If, as we have endeavored to show in the opinion in the preceding cases, we are at liberty to look to the effect of a statute for the test of its constitutionality, the argument need go no further.

But we have thus far only considered the effect of the statute on the owner of the vessel.

As regards the passengers, sect. 2963 declares that consuls, ministers, agents, or other public functionaries, of any foreign government, arriving in this State in their official capacity, are exempt from the provisions of this chapter.

All other passengers are subject to the order of the Commissioner of Immigration.

Individual foreigners, however distinguished at home for their social, their literary, or their political character, are helpless in the presence of this potent commissioner. Such a person may offer to furnish any amount of surety on his own bond, or deposit any sum of money; but the law of California takes no note of him. If is the master, owner, or consignee of the vessel alone whose bond can be accepted; and so a silly, an obstinate, or a wicked commissioner may bring disgrace upon the whole country, the enmity of a powerful nation, or the loss of an equally powerful friend.

While the occurrence of the hypothetical case just stated may be highly improbable, we venture the assertion, that, if citizens of our own government were treated by any foreign nation as subjects of the Emperor of China have been actually treated under this law, no administration could withstand the call for a demand on such government for redress.

Or, if this plaintiff and her twenty companions had been subjects of the Queen of Great Britain, can any one doubt that this matter would have been the subject of international inquiry, if not of a direct claim for redress? Upon whom would such a claim be made? Not upon the State of California; for, by our Constitution, she can hold no exterior relations with other nations. It would be made upon the government of the United States. If that government should get into a difficulty which would lead to war, or to suspension of intercourse, would California alone suffer, or all the Union? If we should conclude that a pecuniary indemnity was proper as a satisfaction for the injury, would California pay it, or the Federal government? If that government has forbidden the States to hold negotiations with any foreign nations, or to declare war, and has taken the whole subject of these relations upon herself, has the Constitution, which provides for this, done so foolish a thing as to leave it in the power of the States to pass laws whose enforcement renders the general government liable to just reclamations which it must answer, while it does not prohibit to the States the acts for which it is held responsible?

The Constitution of the United States is no such instrument. The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States. It has the power to regulate commerce with foreign nations: the responsibility for the character of those regulations, and for the manner of their execution, belongs solely to the national government. If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.

We are not called upon by this statute to decide for or against the right of a State, in the absence of legislation by Congress, to protect herself by necessary and proper laws against paupers and convicted criminals from abroad; nor to lay down the definite limit of such right, if it exist. Such a right can only arise from a vital necessity for its exercise, and cannot be carried beyond the scope of that necessity. When a State statute, limited to provisions necessary and appropriate to that object alone, shall, in a proper controversy, come before us, it will be time enough to decide that question. The statute of California goes so far beyond what is necessary, or even appropriate, for this purpose, as to be wholly without any sound definition of the right under which it is supposed to be justified. Its manifest purpose, as we have already said, is, not to obtain indemnity, but money.

The amount to be taken is left in every case to the discretion of an officer, whose cupidity is stimulated by a reward of onefifth of all he can obtain.

The money, when paid, does not go to any fund for the benefit of immigrants, but is paid into the general treasury of the State, and devoted to the use of all her indigent citizens. The blind, or the deaf, or the dumb passenger is subject to contribution, whether he be a rich man or a pauper. The patriot, seeking out shores after an unsuccessful struggle against despotism in Europe or Asia, may be kept out because there his resistance has been adjudged a crime. The woman whose error has been repaired by a happy marriage and numerous children, and whose loving husband brings her with his wealth to a new home, may be told she must pay a round sum before she can land, because it is alleged that she was debauched by her husband before marriage. Whether a young woman's manners are such as to justify the commissioner in calling her lewd may be made to depend on the sum she will pay for the privilege of landing in San Francisco.

It is idle to pursue the criticism. In any view which we can take of this statute, it is in conflict with the Constitution of the United States, and therefore void.

Judgment reversed, and the case remanded, with directions to make an order discharging the prisoner from custody.


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 Such a form coexists neither with an actual ungraded equality of individuals throughout the group, nor if the group consists of an upper and a lower class separated from each other by no intervening medium. The middle class, in fact, adds an entirely new sociological element. It is not only a third in addition to the two. It does not merely have somewhat the same, that is, quantitative, relation to each of these that they have to each other. The new element is rather that this third stratum itself has an upper and a lower boundary, that upon these boundaries an exchange with the other two strata is constantly taking place, and that through this continual fluctuation effacement of boundaries and continual transitions are produced.

An actual continuity of social life does not arise from the fact that individuals are built into positions one above another, with never so slight gradations. This would still produce discontinuous structure. Continuity exists only when single individuals circulate through higher and lower positions. Only thus is the separateness of strata changed over into an actually uninterrupted structure. In the fortune of the individuals the upper and the lower situation must first meet, in order that the sociological picture may show an actual mediation between the upper and the lower. Precisely this, and not a simple intermediate position, is secured by a middle class. It requires little reflection to discern that this closeness of gradation must characterize also the grades within the middle class. The continuity of stations with reference to repute, possessions, activity, culture, etc., rests not merely in the minuteness of the differences which are coördinated in an objective scale, but rather in the frequency of the change which leads one and the same person through a number of such situations, and thus produces at the same time perpetual and varying personal unions of objectively different situations. Under these circumstances the social aspect, as a whole, will be that of elasticity. The dominant middle class affords the medium of easy interchangeability of the elements, so that the self-preservation of the group throughout the change of external or internal circumstances and assaults is accomplished not so much because of fixity and rigidity in the


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 cohesion of its elements as because of facile yielding and quick transformation.

In the same way it may be shown, in the opposite direction, that a group with very many positions, built the one above another in close gradation, must have the character of decided fluidity and variability, if the greatest perplexities and disturbances are to be avoided. When a great multiplicity of situations is possible, it is from the outset less probable that each will at once fall into the right position than in the case of a fixed social system which assigns each a place within the great group comprehending many forms of action. Where a group contains only a few sharply distinguished stations, the individuals are there, as a rule, from the beginning carefully trained for their sphere. Such constitutions may secure harmony between the dispositions and the station of individuals through the fact that the separate life spheres are relatively broad, and their demands and opportunities are extensive enough to offer appropriate places for the individuals, diverse as they may be from variations of heredity, education, and example. A class constitution, consequently, provides for a preëstablished harmony between the qualities or dispositions of the individual and his position in the social whole. In case, however, on account of the existence of an extensive middle class, the clearly defined classes have given place to a great number of graduated stations, the forces named cannot with certainty predispose the individual to the situation to which he belongs. What was in the other case preëstablished harmony must in this case be reached a posteriori, empirically; the individual must have the possibility of passing from an inappropriate to an appropriate position. In this case, therefore, the self-preservation of the group form demands that there shall be easy shifting of boundaries, constant correction and interchangeability of situations, and likewise a ready constructibility of the latter, so that special individuals may find special positions. Thus, in order to maintain its integrity, a group with a predominant middle class needs a policy quite different from that of a group under aristocratic leadership, or one entirely without class divisions.


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United States v. Ross (92 U.S. 281)

APPEAL from the Court of Claims.

Mr. Assistant Attorney-General Edwin B. Smith for the United States.

Mr. George Taylor, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: United States v. Ross (92 U.S. 281)


text: Talk:United States v. Ross (92 U.S. 281)


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United States v. Ross (92 U.S. 281)/Opinion of the Court

It is incumbent upon a claimant under the Captured or Abandoned Property Act to establish by sufficient proof that the property captured or abandoned came into the hands of a treasury agent; that it was sold; that the proceeds of the sale were paid into the treasury of the United States; and that he was the owner of the property, and entitled to the proceeds thereof. All this is essential to show that the United States is a trustee for him, holding his money. That there is in the treasury a fund arisen out of the sales of property captured or abandoned, a fund held in trust for somebody, and that the claimant's property, after capture or abandonment, came into the hands of a quartermaster of the army or a treasury agent, is not sufficient. There must be evidence connecting the receipt of it by the treasury agent with the payment of the proceeds of sale of that identical property into the treasury. We do not say that the evidence must be direct. It must, however, be such as the law recognizes to be a legitimate medium of proof; and the burden of proof rests upon the claimant who asserts the connection.

In the present case, the Court of Claims has not found as a fact that the claimant's cotton came into the hands of a treasury agent, that it was sold, and that the proceeds of that cotton were paid into the treasury. No connection between the cotton captured and the fund now held by the United States has been established. Certain facts have been found, and from them it was inferred, as matter of law, that other facts existed; and upon the facts thus inferred the court gave judgment.

We think that in this there was error. The claimant owned, in May, 1864, thirty-one bales of cotton, then in a warehouse in Rome, Ga. On the 18th of that month, Rome was captured by the United States forces; and shortly afterwards the cotton was removed on government wagons to a warehouse adjoining the railroad leading from Rome to Kingston, and connecting there with a road leading thence to Chattanooga. Whether it was the only cotton in that warehouse is not found; but it is inferrible from the other facts found that it was not. Subsequently (but how long afterwards does not appear) all of the cotton in that warehouse was shipped on the railroad to Kingston, the road being then in the possession of the military authorities. It is next shown that cotton (some cotton) arrived in Kingston from Rome before Aug. 19, 1864, and was forwarded to Chattanooga; that, on the 19th of August, forty two bales were received at Chattanooga from the quartermaster at Kingston; that thence they were shipped to Nashville, where they were received as coming from Kingston, turned over to the treasury agent, and sold. The proceeds of sale were paid into the treasury, and no title to these forty-two bales has been asserted by third persons.

Such were the facts found; and from them the court deduced, not as a conclusion of fact, but as a presumption of law, that the thirty-one bales removed on government wagons to the warehouse immediately adjoining the railroad at Rome, shortly after May 18, 1864, were a part of the forty-two bales received at Nashville on the 24th of August, four months afterward, and there turned over to the treasury agent. It is obvious that this presumption could have been made only by piling inference upon inference, and presumption upon presumption. Because the thirty-one bales of the claimant were taken to the warehouse alongside of the railroad at Rome in May, 1864, and the cotton in that warehouse afterwards, at some unknown time (whether before or after Aug. 19 does not appear), was shipped on the road to Kingston, it is inferred that the claimant's cotton was part of the shipment. Because somebody's cotton (how much or how little is not shown) arrived at Kingston from Rome at some time not known, and was forwarded to Chattanooga before the 19th of August, 1864, it is inferred that the claimant's thirty-one bales, presumed to have reached Chattanooga, thus arrived, and were forwarded; and, because forty-two bales were received at Chattanooga on that day from the quartermaster at Kingston, it is inferred that the claimant's bales were among them. These seem to us to be nothing more than conjectures. They are not legitimate inferences, even to establish a fact; much less are they presumptions of law. They are inferences from inferences; presumptions resting on the basis of another presumption. Such a mode of arriving at a conclusion of fact is generally, if not universally, inadmissible. No inference of fact or of law is reliable drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed. Starkie on Evid., p. 80, lays down the rule thus: 'In the first place, as the very foundation of indirect evidence is the establishment of one or more facts from which the inference is sought to be made, the law requires that the latter should be established by direct evidence, as if they were the very facts in issue.' It is upon this principle that courts are daily called upon to exclude evidence as too remote for the consideration of the jury. The law requires an open, visible connection between the principal and evidentiary facts and the deductions from them, and does not permit a decision to be made on remote inferences. Best on Evid., 95. A presumption which the jury is to make is not a circumstance in proof; and it is not, therefore, a legitimate foundation for a presumption. There is no open and visible connection between the fact out of which the first presumption arises and the fact sought to be established by the dependent presumption. Douglas v. Mitchell, 35 Penn. St. 440.

The Court of Claims thought the facts found by them entitled the claimant to the legal presumption said by this court to exist in Crussell's Case, 14 Wall. 1; and therefore determined, as a conclusion of law, that the cotton taken from the claimant was a part of that transmitted to Nashville, and turned over to the treasury agent and sold. We think Crussell's Case does not justify such a conclusion. Because property was captured by a military officer and sent forward by him, and because there is an unclaimed fund in the treasury derived from sales of property of the same kind as that captured, because omnia presumuntur rite esse acta, and officers are presumed to have done their duty, it is not the law that a court can conclude that the property was delivered by the military officer to a treasury agent, that it was sold by him, and that the proceeds were covered into the treasury. The presumption that public officers have done their duty, like the presumption of innocence, is undoubtedly a legal presumption; but it does not supply proof of a substantive fact. Best, in his Treatise on Evid., sect. 300, says, 'The true principle intended to be asserted by the rule seems to be, that there is a general disposition in courts of justice to uphold judicial and other acts rather than to render them inoperative; and with this view, where there is general evidence of facts having been legally and regularly done, to dispense with proof of circumstances, strictly speaking, essential to the validity of those acts, and by which they were probably accompanied in most instances, although in others the assumption may rest on grounds of public policy.' Nowhere is the presumption held to be a substitute for proof of an independent and material fact. The language of the opinion in Crussell's Case would perhaps mislead, were it not read in connection with the finding of facts. The question was, whether seventy-three bales of cotton of the plaintiff's had been forwarded, with a much larger amount, to the officer in charge of military transportation at Nashville, and by him turned over to the treasury agent. There was no direct proof that the plaintiff's cotton was included in the shipment; but there was proof that the treasury agent forwarded the cotton received by him to the supervising agent at Cincinnati, where a sale was soon after made, and some of the bales sold were marked with the plaintiff's mark. The question, therefore, whether the military officer who shipped the large quantity had shipped with it the cotton of the plaintiff, was not left to depend upon the presumption that he had done his duty. There was distinct and independent proof of it in the fact that some of the plaintiff's cotton had reached Cincinnati, and had been sold there. The presumption was only confirmatory of what had been proved by evidence, and in confirmation of that proof it might be invoked. This is all that can fairly be deduced from the opinion of the court as delivered by the Chief Justice.

No more need be said of the present case. It is not found as a fact that the identical cotton captured from the plaintiff ever came into the hands of a treasury agent, or that it was sold, and that the proceeds were paid into the treasury; and the presumption of law adopted by the court, that the cotton was a part of that transmitted and sold, was unwarranted.

Judgment reversed, and cause remanded for a new trial.


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 The following, however, is to be added: What instability and variability of the group form are in succession, that the division of labor is in coexistence. In the former case the group has to adapt itself by various modifications of its form to the different life conditions which emerge one after another. In the latter case the problem of the group is to adjust its varying individual members to satisfaction of the diverse coexisting demands. The whole diversity and gradation in callings and positions to which we have referred is evidently possible only through division of labor. Consequently this division of labor, like its counterpart, variability of social life form, is a characteristic of the middle class and of its predominance. Neither the aristocracy nor the class of free peasant citizens tends to any large degree of division of labor. The aristocracy has no such tendency, because every division of labor brings with it gradation of rank, and this is repugnant to the class consciousness and inimical to its unity. The peasant class does not have it, because it is not required or permitted by its technique. It is peculiar, however, that variability and division of labor, much as they essentially and in their personal agents depend on each other, with respect to the self-maintenance of the group, often work in direct opposition to each other. This results, on the one hand, from the fact, emphasized above, that multiplicity and easy gradation of positions which arise from division of labor lead to all sorts of difficulties and perplexities, unless there be added easy mobility and transferability of the social elements. These tend to offset the dangers that come from extreme division of labor, viz., disintegration (Zersplitterung), one-sidedness, discrepancy between the talent and the station of individuals. On the other hand, the complementary relation of division of labor and variability in respect to maintenance of the group is manifest in the following manner. There will be many cases in which the inconstancy of the middle station produces uncertainty, indefiniteness, and uprooting. This is prevented by division of labor, since it binds the elements of the group wonderfully close together. Petty groups of nature peoples, however centralized their organization


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 may be, are easily disrupted, because each little component of the group is equally capable of separate existence. Each can do just what the other can. Owing to the hardships of their lot in external relations they are thrown upon each other. No particular qualifications of these instinctive allies are involved, however. They can associate quite at will.

The cohesion of a great civilized group, on the other hand, rests on its division of labor. The one is absolutely dependent on the others. The disruption of the group would leave each individual quite helpless. Thus division of labor, with its linking of individuals to each other, works against variability in case this would harmfully affect the maintenance of the group. This will be observable even in small groups. A band of settlers will be on the whole very pliable and variable. It will dispose itself now in centralized form, now in very free fashion, according as it is under pressure from without or has plenty of scope for action. It will confide leadership according to changing interests to frequently changing persons. It will seek prosperity now in attachment to other groups, now in exercise of the largest autonomy. These variations of their sociological form will be sure in certain cases to promote self-preservation. On the whole, however, they will give occasion for conflicts, uncertainties, and divisions; all this is energetically counterbalanced by developed division of labor. On the one hand, this puts the individual into dependence upon the group; on the other hand, it gives the group a lively interest in holding fast to the individual.

In all the cases considered thus far, the easy changeability of group life, its inclination to transfers of both formal and personal sorts, has been an adaptation to the necessities of life; a bending necessary to avoid breaking, whenever there is a lack of that substantial firmness which, in any event, would defeat every exertion of destructive force. By its variability the group responds to the change of circumstances, and accommodates it so that the result is its own confirmation. But it may now be asked whether such changeability, such persistence through changing and often contradictory conditions, actually promotes


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New York Life Insurance Company v. Hendren

ERROR to the Supreme Court of Appeals of the State of Virginia.

The plaintiff in error, a company incorporated under the laws of the State of New York, having its home office in New-York City, issued its policy of insurance, bearing date Aug. 25, 1856, to Mrs. Hendren, the defendant in error, on the life of her husband. The insurance was negotiated through an agent of the company at Norfolk, in Virginia, in which State Mrs. Hendren and her husband then, and until his death, resided. He died Aug. 15, 1862.

She brought this suit to recover the amount of the policy. Judgment was rendered in her favor in the Court of the Corporation of the City of Norfolk, which was affirmed by the Supreme Court of Appeals of the State. The company sued out this writ of error.

Mr. Edward O. Hinkley for the plaintiff in error.

Mr. Albert Ritchie, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.


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 the maintenance of the group merely as a reaction against the change of external conditions, or whether the most immanent principle of the group existence may not urge the same demand. Quite apart from the question, what external or internal occasions call forth the variations of its attitude, may not the force and health of the life process of the group, as development of purely inherent energies, be bound up with a certain change of its poise, a shifting of its interests, a somewhat frequent reconstruction of its form? Of the individual we know that varying stimulations are necessary for maintenance. The force and unity of his existence are not preserved by unbroken mechanical sameness of external and internal condition and action. On the contrary, the individual is likewise naturally adapted to preservation of his unity in change, not merely of what he does and endures, but also in change within each of these factors of his experience. It is consequently not impossible that the bond which holds the group together needs varying stimulation in order to remain in consciousness and force. A hint of such relation of things is contained in certain phenomena which manifest an intimate mixture (Verschmelzung) between social unity in general and a definite content or equipment of the unity. A case in point occurs, as may easily be understood, when a condition that is definite either in content or otherwise remains long unchanged, and there is danger that the condition disturbed presently by some outward circumstance may drag down the social unity itself in its fall. Just as religious conceptions are often, by long reciprocal relationship, closely interwoven with moral feelings, and by virtue of this association the removal of the feeling by enlightenment results in uprooting the ethical norms at the same time, so a formerly rich family often goes to pieces on losing its property, and likewise many a poor family when it suddenly becomes rich. In a similar way a state that has always been free may be torn by factions and dissensions after it loses its freedom (I call to mind Athens after the Macedonian period), and likewise a state formerly under despotic rule so soon as it suddenly becomes free. The history of revolutions presents the latter case often enough. It appears,


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New York Life Insurance Company v. Hendren/Opinion of the Court

This record does not show that any Federal question was decided or necessarily involved in the judgment rendered by the court below. The pleadings, as well as the instructions asked and refused, present questions of general law alone. The court was asked to decide as to the effect, under the general public law, of a state of sectional civil war upon the contract of life insurance, which was the subject of the action. It was not contended, so far as we can discover, that the general laws of war, as recognized by the law of nations applicable to this case, were in any respect modified or suspended by the constitution, laws, treaties, or executive proclamations, of the United States. This distinguishes the present case from Matthews v. McStea, where jurisdiction was taken at the last term (20 Wall. 640), and the case decided at the present term. 91 U.S. 7. The question was there presented, whether the President's proclamation of April 19, 1861, did not suspend, for the time being, the operation of that principle in the law of war which prohibited commercial intercourse in time of war between the adherents of the two contending powers. Here there is nothing of the kind.

Our jurisdiction over the decisions of the State courts is limited. It is not derived from the citizenship of the parties, but from the questions involved and decided. It must appear in the record, or we cannot proceed. We act upon questions actually presented to the court below, not upon such as might have been presented or brought into the case, but were not.

The case, therefore, having been presented to the court below for decision upon principles of general law alone, and it nowhere appearing that the constitution, laws, treaties, or executive proclamations, of the United States were necessarily involved in the decision, we have no jurisdiction. We have often so decided. Bethel v. Demaret, 10 Wall. 537; Delmas v. Insurance Co., 14 id. 666; Tarver v. Keach, 15 id. 67; Rockhold v. Rockhold, supra, p. 129.

Dismissed for want of jurisdiction.


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, as though a certain changeability in the conditions and formations of the group protects it against too rigid combination of the essential unity of the group with a particular form of the unity. In case this close combination exists in a group, the occurrence of a change, in spite of the rigid form, threatens the very life principle of the group. Against this danger frequent change seems to act like a sort of inoculation. The bond between the most essential and the less vital relationships remains looser, and a disturbance of the latter opposes less danger to the preservation of the group in its essential unity.

We are easily inclined to regard peace, harmony of interests, concord, as the essence of social self-preservation; all antagonism, on the other hand, as destructive of the unity which it is the essential aim to preserve, and as the fruitless consumption of force which might be used for the positive up-building of the group organism. Yet it seems more correct to interpret a certain rhythm between peace and strife as the preservative life form. This interpretation may be applied equally in two directions. It is true both of struggle between the group as a whole and external foes, in alternation with peaceful epochs, and also of the strife of competitors, parties, opposing tendencies of every sort, by the side of the facts of community and of harmony. The one is an alternative between harmonious and discordant phenomena in a series, the latter in coexistence. The motive of both is in the last analysis one and the same. It realizes itself in different ways. The struggle against a power standing outside the group brings the unity of the group and the necessity of maintaining it unshaken to most lively consciousness. It is a fact of the greatest social significance, one of the few which are true almost without exception of group formations of every sort, that common antagonism against a third party under all circumstances tends to consolidate the combining group, and with much greater certainty than community in friendly relationships toward a third party. There is scarcely a group—domestic, ecclesiastic, economic, political, or whatever—that can dispense entirely with this cement. In the purest reciprocity there develops here the consciousness of existing unity and practical


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 reinforcement of it, each growing and working on the basis of the other.

It appears to be necessary for us human beings, whose whole psychical nature is built upon our sensitiveness of difference, that a feeling of separateness should always exist alongside of the feeling of unity to make this latter perceptible and tangible. Now this process may, as suggested, proceed within the group itself. Aversions and antagonism between group elements may bring the actual unity of the whole, existing in spite of them, to keener effectiveness. Since these oppositions shorten the social binding cords, they tighten them at the same time and thus make them more perceptible. This is also the way to snap them, to be sure. But before that occurs, these counter-movements, which are possible only on the basis of fundamental coherence and closeness of relationship, will have brought these oppositions into more and more energetic functioning. Nor is it essential whether the adjustment is accompanied by correspondingly sharpened consciousness of the adaptation or not. Thus attacks and violence among the members of a community have had as a consequence the enactment of laws in defense against such assaults. Although these laws were measures in opposition to the hostile egoism of individuals, yet they brought the community as a whole to consciousness and expression of its totality, its coherence, its solidarity, and its unity of interest. In like manner economic competition is a highly intimate reciprocal relationship which brings the competitors and their customers closer together. It makes the former more dependent upon the latter and upon each other than they would be if it had not existed. Accordingly, this wish to anticipate hostilities and to minimize their consequences has led to unifications (for example, industrial and political compacts), to all sorts of usages in economic and other transactions, which, although they grew up solely on the ground of actual or possible antagonism, nevertheless have resulted in positive promotion of the coherence of the whole.

This double rôle of opposition as related to social self-preservation—with reference to external and to internal relations, as


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Township of Elmwood v. Marcy

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

The judges of the Circuit Court were divided in opinion, whether, under the facts of this case and the legislation of Illinois applicable to them, there existed power and lawful authority to issue the bonds and coupons in controversy, so as to render them valid and collectible in the hands of the plaintiff below, who is defendant here. Judgment was rendered in his favor, and the cause is brought here for review. From the certificate of division, it appears that the Dixon, Peoria, and Hannibal Railroad Company was incorported March 5, 1867; that prior to Feb. 11, 1869, the road of said company was located in the township of Elmwood; that, at the date last named, an election was called under the provisions of the charter of said company, to be held on March 16, 1869, to determine whether said township would subscribe to the stock of said company, and give its bonds for $35,000, the maximum amount permitted by law; that, five days afterwards,-to wit, on the 16th of February, 1869,-notice was given of another election, not purporting to be in pursuance of said charter, to be held at the same time and place with that aforesaid, to determine whether said township would subscribe to the stock of said company, and issue the bonds for a further sum, over and above the amount authorized by law as aforesaid; that said first-named election resulted in favor of subscribing said $35,000, and the second-named election resulted in favor of an additional subscription of $40,000; that after both said elections were notified, and seven days before they were held,-viz., on the 9th of March, 1869,-the charter of said company was amended so as to authorize towns in which said road might be thereafter located to vote and subscribe $100,000 to its capital stock; also that, thirty-two days after said election,-viz., on the seventeenth day of April, 1869,-the legislature passed a validating act, and that ten days tereafter, on the 27th of that month, the supervisor and town-clerk issued the bonds and coupons contemplated by both elections. That act legalized and confirmed the subscription for $40,000 to the capital stock of the company over and above that for $35,000, which was confessedly made in accordance with the provisions of the original charter. The bonds in suit are part of those issued for the greater sum; and the question is, whether they are binding on the town.

Mr. H. B. Hopkins, Mr. J. H. Morrow, and Mr. E. G. Johnson, for the plaintiff in error.

The bonds and coupons in question are null and void. First, Because their issue was and is inhibited by the Constitution of Illinois, and the laws upon which they depend for their validity are unconstitutional and void. Second, Because they were issued in plain violation of the letter and spirit of the acts which purport to authorize their issue. Wiley et al. v. Silliman et al., 62 Ill. 170; Marshall et al. v. Silliman et al., 61 id. 218.

The act of the Legislature of Illinois of April 17, 1869, attempts to confer the power of municipal taxation upon persons who are not the corporate authorities of the district to be taxed, and is therefore unconstitutional and void. Harward et al. v. The St. Clair and Monroe Levee and Drainage Company et al., 51 Ill. 130; Same v. The State of Illinois, id. 138; The People ex rel., & c. v. Mayor, &c., of Chicago, id. 17; The People ex rel., &c. v. Soloman, Clerk of Cook County, id. 37; Hessler v. Drainage Commissioners, 53 id. 105; Marshall et al. v. Silliman et al., and Wiley et al. v. Same, supra.

It has become a prominent doctrine of this court, that the construction which prevails in the State courts at the time municipal bonds are issued, upon questions touching their validity, enters into and forms a part of them as the settled law of those contracts, although the State court may have adopted a different ruling. Gelpeck v. City of Dubuque, 1 Wall. 175, Olcott v. Supervisors, &c., 16 id. 678; Havemeyer v. Iowa County, 3 id. 294; Mitchell v. Burlington, 4 id. 270; Christy v. Pridgeon, id. 196.

Mr. Isaac G. Wilson and Mr. Sanford B. Perry for the defendant in error.

It is apparent, from the phraseology of the act of April 17, 1869, that it does not compel the township to incur an obligation and tax itself without its consent. So far from conferring a new power, or imposing a debt, it simply cures and legalizes the defective and irregular exercise of an existing power. The President and Trustees of the Town of Keithsburg v. Frick, 34 Ill. 405.

It is competent for the legislature to give effect and validity to an election held for the purpose of determining as to the expediency of subscribing for stock, before the passage of a law providing therefor. St. Joseph Township v. Rogers, 16 Wall. 644; McMillan et al. v. Lee Co., 3 Iowa, 317.

Wiley et al. v. Silliman et al., 61 Ill. 218, is squarely in conflict with the decision of this court in Township of Pine Grove v. Talcott, 16 Wall. 666.

If the words, 'and is hereby declared binding on said township, and said $40,000, when subscribed according to the conditions of said vote, may be collected from said township in the same manner as if the said subscription had been made under the provisions of said charter,' create a debt, and so are obnoxious to the provisions of the Constitution, they must be disregarded. It is a familiar principle of construction, that a statute is void only so far as its provisions are repugnant to the Constitution; and that one provision may be void, and the others valid. Sedg. on Stat. and Const. Law, 2d ed., 413; Fisher v. McGin, 1 Gray, 22.

The township organization law of Illinois does not declare what officers of a town constitute its municipal officers.

The supervisor and town-clerk are, by the obvious intent of the law, the proper officers to execute all authorized town obligations, except those otherwise specially provided for. They are, pro hac vice, the municipal authorities. Marcy v. Town of Ohio, 5 Legal News, 551.

MR. JUSTICE DAVIS delivered the opinion of the court.

title: Township of Elmwood v. Marcy


text: Talk:Township of Elmwood v. Marcy

title: Talk:Township of Elmwood v. Marcy


text:
Township of Elmwood v. Marcy/Opinion of the Court

The questions arising upon this record were elaborately considered in Marshall et al. v. Silliman et al., 61 Ill. 218; and the doctrines there announced were recognized and enforced in Wiley et al. v. Silliman et al., 62 id. 170. The last case involved the validity of the identical bonds in question here; but both were, in all substantial particulars, alike. They were bills in equity to enjoin the collection of taxes for the payment of interest; and the court decided that the law of March 9 gave no power to issue the bonds. The opinion affirms, that, when the notice for the vote was posted, the charter of the company only authorized a subscription for $35,000; that the notice under which the vote for the $40,000 was taken was a mere call for a special town-meeting, signed only by twelve voters, which did not seek to follow the provisions of the charter, as, indeed, it could not, since the power under them was already exhausted; and that the proceeding was utterly void. That law is disposed of in these words: 'It is true that on the 9th of March, 1869, the legislature passed another act authorizing towns to subscribe $100,000; but a new notice was not given. The charter required twenty days' notice, and only seven intervened between the passage of the act and the vote.'

It was insisted, however, that the curative act of April 17, passed after the vote had been taken, gave validity to the bonds. On this ground counsel placed their chief reliance, and to it the court directed its principal attention.

The act was direct and positive, and left nothing to inference. It was intended, so far as the legislature could do it, to make the bonds binding on the township, and collectible in the same manner as if the subscription had been authorized by the charter, and voted for in accordance with its terms. The court held it to be a violation of the fifth section of the ninth article of the Constitution of 1848, which declares 'that the corporate authorities of counties, townships, school-districts, cities, towns, and villages, may be vested with power to assess and collect taxes for corporate purposes, such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same.' The decision was placed on the ground, that, this section having been intended as a limitation upon the law-making power, the legislature could not grant the right of corporate taxation to any but the corporate authorities, nor coerce a municipality to incur a debt by the issue of its bonds. In the opinion of the court, the act was an effort to do both these things, as it attempted to confer that right upon persons who were not by themselves the corporate authorities in the sense of the Constitution, and to compel the town to issue its bonds for railroad stock by declaring a void proceeding to be a valid subscription.

Counsel argued that the act might be treated as vesting an unconditional authority in the supervisors and town-clerk to issue the bonds, and cited The President and Trustees of the Town of Keithsburg v. Frick, 34 Ill. 405, which recognizes that the legislature can constitutionally bestow upon the trustees of a town the power, if they think proper to exercise it, to subscribe for stock in a railroad company, without requiring the subject to be submitted to a vote of the people. The court, adhering to the doctrines of that case, but distinguishing it from the one under consideration, and referring to Lovingston v. Wilder, 53 Ill. 302, as an authority in point, said 'that the town supervisor and clerk who issued the bonds in controversy do not represent a township as the board of trustees represent an incorporated town, or the common council a city. The supervisor and town-clerk are but a part of the corporation. They have no power of taxation, nor power of themselves to bind the city in any way.' But, even if these two officers could be recognized as the corporate authorities, the court observed 'that they cannot be said to have voluntarily incurred this debt in behalf of the town. The act gave them no discretion. It declared the subscription shall be binding, and may be collected; and left to the town authorities only the ministerial function of executing the behest of the legislature.'

The main doctrines of these cases were not new, but had been settled by the repeated adjudications of the Supreme Court; and that learned tribunal has given no decision at variance with them.

In Harward v. The St. Clair Drainage Company, 53 Ill. 130, the clause of the Constitution under consideration in Marshall et al. v. Silliman et al., and Wiley et al. v. Silliman et al., was construed to be a limitation upon the power of the legislature to grant the right of corporate or local taxation to any other persons than the corporate or local authorities of the municipality or district to be taxed. To the same effect are Hessler v. Drainage Company, 53 id. 105, and Lovingston v. Wilder, id. 302. The People ex rel., &c. v. The Mayor of Chicago, 51 id. 17, decides that the legislature could not compel a municipal corporation, without its consent, to issue bonds or incur a debt for a merely corporate purpose.

So far as we can see, the only new point determined in the cases we have first cited is that it is not competent for the legislature to single out the supervisor and town-clerk, and confer on them powers which the Constitution limits to the corporate authorities as an aggregate body.

We are not called upon to vindicate the decisions of the Supreme Court of Illinois in these cases, or approve the reasoning by which it reached its conclusions. If the questions before us had never been passed upon by it, some of my brethren who agree to this opinion might take a different view of them. But are not these decisions binding upon us in the present controversy? They adjudge that the bonds are void, because the laws which authorized their issue were in violation of a peculiar provision of the Constitution of Illinois. We have always followed the highest court of the State in its construction of its own constitution and laws. It is only where they have been construed differently at different times, that, in cases like this, we have adopted as a rule of action the first decision, and rejected the last. This has been done on the ground that rights acquired on the strength of the former decision ought not to be lost by a change of opinion in the court, but, where the construction has been fixed by an unbroken series of decisions, the courts of the United States accept and apply it in cases before them. If a different rule were observed, it is not difficult to see that great mischief would ensue.

There has been no conflict of judicial opinion in Illinois on the controlling question in this suit, but, on the contrary, settled uniformity. As these concurring decisions of the court of last resort in that State are grounded on the construction of its constitution and statutes, it is the duty of this court to conform to them. Judgment reversed, and new trial ordered.

MR. JUSTICE STRONG, with whom concurred MR. JUSTICE CLIFFORD and MR. JUSTICE SWAYNE, dissenting.


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Page:American Journal of Sociology Volume 4.djvu/63

 antithesis between the whole group and an external power, and as antithesis between the elements of the group among themselves—is reproduced as genuine sociological life form in the narrower relationships between individual people. These also plainly need the stimulus of difference in order to retain and protect their unity. Now this difference may reside either within the relationship itself, in the different characteristics of its temporal divisions, or in the difference which appears between the relationship as a whole and, on the other hand, experiences and emotions quite outside of it. Thus it is often remarked that friendship, love, and marriage need occasional interruptions in order to get a true realization of their meaning and intimacy (Festigkeit), after reconciliation. Similar relationships are to be distinguished which do not require this internal difference, but rather, along with more even internal character, become conscious of their own weal through the difference from that which the world otherwise affords, and that which is otherwise known of it. The last form surely stands higher in the scale, and gives evidence of stronger, positive motives of coherence. The first form, in its turn, stands lower, according to the degree of frequency in the alternation between the divergent and the convergent periods. The lowest grade is represented by the formula: “One minute blows, the next agreement (Pack schlägt sich, Pack verträgt sich).” This marks a condition in which the essential and permanent relationships have only a slight value in consciousness; the disposition being rather determined at each moment by external stimuli, which work in accidental alternation, now in attraction, now in repulsion. For that very reason, however, there is in all this a deep utility in connection with the promotion of coherence. For wherever the occasion to be conscious of precisely this coherence is in itself slight, and the capability of appreciating it is itself not particularly developed, there will be needed, in order to arouse it, constantly renewed psychological impulses and rude stimulation from contrasts. These cannot be furnished better than in the form of constantly renewed agreements after constantly repeated disagreements. This at the same time affords the background from which unity at last appears.


text: Talk:Township of Elmwood v. Marcy/Opinion of the Court


text:
Township of Elmwood v. Marcy/Dissent Strong

MR. JUSTICE STRONG, with whom concurred MR. JUSTICE CLIFFORD and MR. JUSTICE SWAYNE, dissenting.

The material facts in this record are few. The two elections were held on the same day (March 16, 1869); one in pursuance of a regular call made Feb. 11, and the other pursuant to a call made Feb. 16, 1869. At the election held under these calls, a subscription for $35,000 was voted, and also an additional subscription of $40,000. The aggregate of the two was $75,000; and a subscription for so much stock having been made in accordance with the popular vote, and certificates therefor having been taken by the supervisor and town-clerk, bonds for the amount were issued. At the time these two subscriptions were voted, there was a provision in the original charter of the railroad company (passed March 5, 1867) authorizing the subscription for $35,000, and there was also in the amendment to the charter (passed March 9, 1869) a provision authorizing an additional subscription not exceeding $65,000. There was, therefore, full legislative authority for the entire subscription of $75,000, and for the issue of bonds for that amount, when the elections were held at which the subscriptions were voted.

But the call for the second vote to determine whether the town would subscribe for the additional $40,000 was irregular in two particulars. It was made before the act of March 9, 1869, was passed,-the act which authorized a subscription larger than $35,000, though the vote was taken afterwards; and the petition for the call was signed by the supervisor, townclerk, and twelve freeholders (in the mode of calling special town-meetings), instead of being signed by twenty-five legal voters,-the mode pointed out by the act of March 5, 1867. The notice of the election, however, was given twenty days,-the full time prescribed by the act.

These variances from the directions of the statute were irregularities, mere non-compliance with form and mode; nothing more. Authority to subscribe the additional $40,000, if the subscription was approved by a popular vote, existed undeniably when the vote was cast in favor of the subscription, though not when the call for the subscription was made. The authority emanated from the legislature. Whether it should be exercised or not was made to depend on the result of a popular vote. The popular vote was the substantial thing. The mode in which the election should be called, as well as the length of time during which notice of it should be given, were formalities required indeed, but they were not of the essence of the power. They were merely ancillary to the main object which the legislature had in view; which was to provide for an expression of the popular sentiment.

But if the departure from the mode of proceeding pointed out by the legislature was only an informality, as it plainly was, it was curable by the same power that prescribed the form; and I think it was cured, in the present case, before the subscription was made, and before the bonds were issued. On the seventeenth day of April, 1869, the legislature passed an act by which it was enacted as follows:--

'That a certain election held in the township of Elmwood, in Peoria County, on the sixteenth day of March, A.D. one thousand eight hundred and sixty-nine, at which a majority of the legal voters in said township, in special town-meeting, voted to subscribe for and take $40,000 of the capital stock of the Dixon, Peoria, and Hannibal Railroad Company, over and above the $35,000 which was on the same day subscribed for and taken in accordance with the provisions of the charter of said company, is hereby legalized and confirmed, and is declared to be binding upon said township; and the said $40,000, when subscribed according to the conditions of said vote, may be collected from said township in the same manner as if the said subscription had been made under the provisions of said charter.'

Why this act did not cure all irregularities and all informalities of the election, and why, in connection with the prior acts of May 5, 1867, and March 9, 1869, it did not complete the authority to subscribe for the $40,000 of stock, and to issue the town-bonds therefor, I cannot discover. A retrospective statute curing defects in legal proceedings, and even in contracts, is of frequent occurrence, and, unless expressly forbidden by constitutional provisions, is effective. Irregular proceedings in courts, or in the organization or elections of corporations, and irregularities in the votes or other action of municipal corporations, by means of which a statutory power has failed of due and regular execution, have often been cured by such legislation; and the power irregularly or informally executed has been declared well exercised. Such statutes are held to be constitutional. The principle asserted is, that if the thing wanting, or which failed to be done, and the want or failure of which constitutes the defect or irregularity in the proceedings, is something which the legislature might have dispensed with by prior statute, it is within the power of the legislature to dispense with it by subsequent enactment. Cooley, Const. Lim. 371, and cases there cited. Illustrations of this principle abound. Void contracts have thus been validated. So have void acknowledgments by married women, and, repeatedly, contracts by municipal corporations, which, when made, were in excess of their authority. Such retrospective laws are supported, when they impair no contract or disturb no vested right, but only vary remedies, or cure defects in proceedings otherwise fair. They have their foundation in equity and in justice. In St. Joseph Township v. Rogers, 16 Wall. 666, where it appeared that the election at which the subscription was approved was held before the passage of the law authorizing the subscription, and not after, as in the present case, this court said, 'Argument to show that defective subscriptions of the kind may, in all cases, be ratified where the legislature could have originally conferred the power, is certainly unnecessary, as the question is authoritatively settled by the decisions of the Supreme Court of the State (Illinois) and of this court in repeated instances.' And again: 'Mistakes and irregularities are of frequent occurrence in municipal elections, and the State legislatures have often had occasion to pass laws to obviate such difficulties. Such laws, when they do not impair any contract or injuriously affect the rights of third persons, are never regarded as objectionable, and certainly are within the competency of legislative authority.'

It is argued, however, that the validating act of April 17, 1869, is unconstitutional because it compels a municipal corporation to contract and pay a debt without its consent. It is said the election by which it was voted to subscribe was a nullity, and, therefore, that there never was any consent to the subscription. The argument is founded upon a complete misconception of the facts and of the law. The statute was in no just sense an act to confer new power, or to impose a debt. It was what it purports to be,-an act to cure the defective execution of a power already granted. That such an act creates no rights, confers no authority, and imposes no new duty, is palpably plain. It might as well be argued that an act curing defective acknowledgments of a deed by a married woman compels her to make a conveyance. It cannot be said that there was no consent to the subscription. True, the consent was not according to the formalities required when it was given; but it was none the less a substantial assent to the proposition to subscribe. The validating statute, therefore, was not an overriding of the will of the voters: it was rather an act to give effect to an informally expressed consent.

The position here taken on behalf of the plaintiff in error is as novel as it is unsound. It is, in effect, to deny the power of a legislature to pass retrospective statutes in any case for the purpose of curing the irregular or defective execution of a power by municipalities, a power never before denied. In The President and Trustees of the Town of Keithsburg v. Frick, 34 Ill. 405 (decided in 1864), it was ruled, that if a town subscribes to the stock of a railroad company, and issues its bonds therefor, without legislative authority therefor, it is competent for the legislature to legalize and validate what the town has done. There the town, having no authority to take stock, had held an election irregularly, and had voted to subscribe for $20,000 and issue bonds. A subsequent act of the legislature validated the subscription, and the act was sustained by the Supreme Court of the State. It was not thought then that the confirming act compelled the town to contract a debt without its consent. This case of Keithsburg v. Frick was the declared law of the State when the bonds of the plaintiff in error were issued. It was in full accord with the decisions made in other States. McMillan et al. v. Lee County, 3 Iowa, 317.

It matters not, then, that the Supreme Court of Illinois changed its ruling in 1871, as in the cases of Marshall et al. v. Silliman et al., 61 Ill. 218, and Wiley et al. v. Silliman et al., 62 id. 170. This was after the bonds had been issued. The purchaser had a right to rely upon the law as declared by the court when he purchased, or when the bonds were issued, especially as it was in accordance with the former decisions of the same court, and with what has been decided in every other State, so far as we know, and by this court. Then it had never been held that the legislature could not authorize the supervisor and town-clerk to execute township bonds. True, it had been decided that the power could not be conferred upon commissioners or persons who were not officers of the township, and for the reason that they were not the corporate authorities, but were persons having no interest in or control over the township affairs,-a reason inapplicable to the township surpervisor and clerk; and certainly it had never been decided that an act of the legislature validating an irregular election or an irregular exercise of power by the officers of a municipal corporation was unconstitutional and inoperative. The decisions made in 1871, after these bonds were issed, are, in my judgment, the assertion of new doctrine, which this court is not bound to follow, especially when it leads to such injustice as the present decision exhibits.

For these reasons, I dissent from the judgment of the court.