not only have legislators been elected for the purpose of enacting statutes to avert the calamities supposed to be impending, but powerful influences have been exerted upon the judiciary itself to bias it in the dispensation of justice.' There privilege granted, or right conferred, no matter by what means or on what pretense, being made inviolable by the constitution, the government is frequently found stripped of its authority in very important particulars by unwise, careless or corrupt legislation, and a clause in the federal constitution, whose purpose was to preclude the repudiation of debts and just contracts, protects and perpetuates the evil." Cooley's Constitutional Limitations, 279-80, note. "We have tried the laisez faire policy and it has failed; we have tried a meddlesome policy and it has failed also. We have now to meet the coming day when all the railways, having completed their several systems, may, and probably in their own interests will, combine together to take advantage of the public. In the face of this contingency we have simply to make our choice between two alternatives either to let the State manage the railways, or let the railways manage the State." Address by James A. Garfield, 5 Leg. Gaz. 408. 1"Whatever we may desire as lawyers, however much we may wish that the judicial tribunals shall be above the reach of popular opinion, nevertheless they are influenced by it." "The Dartmouth College Case and Private Corporations," by William P. Wells, (1886) 9 Am. Bar Assoc. Rep. 229. "Public opinion may and does review the constitutional doctrines announced and acted upon by the Supreme Court of the United States, and sometimes this review has been followed by very practical consequences." Geo. Tick nor Curtis in his discussion of "The Doctrine of Presumed Dedication of Private Property to Public Use," (John Wiley & Sons, N. Y., 1881) citing "The Dred Scott Case." "It is difficult to resist the conviction that the court was not altogether insensible to the pressure of that public sentiment which prevailed at the time-the 'Granger' sentiment of the Great West." "The Dartmouth College Case and Private Corporations," by William P. Wells, (1886) 9 Am. Bar Assoc. Rep. 229, 249. "When, in the exercise of proper legislative powers, general laws are enacted which bear, or may bear, on the whole community, if they are unjust and against the spirit of the constitution, the whole community will be interested to procure their repeal by a voice potential, and that is the great security for just and fair legislation. But when individuals are selected from the mass, and laws are enacted affecting their property, without summons or notice, at the instigation of an interested party, who is to stand up for them thus isolated from the mass, in injury and injustice, or where are they to seek relief from such acts of despotic power? They have no refuge but in the courts, the only secure place for determining conflicting rights by due process of law. But if the judiciary gives way, and in the language of the chief justice in Greenough v. Greenough, 11 Pa. St. 494, 'confesses itself too weak to stand against the antagonism of the legislature and the bar,' one independent and co-ordinate branch of the government will become the sub is, however, it may be believed, little ground for the expectation that the Dartmouth College case will be reversed under any probable pressure of public sentiment. It will continue to be the subject of adverse criticism, which will be intensified and strengthened, in the profession and outside of it, unless corporate abuses are restrained or come to an end. But the remedies for these will be found in some other way than in reversal, by the court itself, of this memorable judgment.' "A departure from it now would involve dangers to society that cannot be foreseen, would shock the sense of justice in the country, unhinge its business interests, and weaken, if not destroy, that respect which has always been felt for the judicial department of the government." The principle has, it has been said, become "axiomatic in American jurisprudence." " § 20. Meaning of the word "law."- The prohibition of the passage by a State of any "law impairing the obligation of contracts," would, if strictly construed, include under the word "law" only statutes enacted by State legislatures; but servient handmaid of the other, and a quiet, insidious revolution will be effected in the administration of the government, whilst its form on paper remains the same." Ervine's Appeal, 16 Pa. St. 268. "I have ventured to criticise the judicial application of the Dartmouth College case; and I venture the further opinion that some features of that decision as applied to the railway and similar corporations must give way, under the new elements which time has added to the problem. But this must be done, not by denouncing judges who faithfully administer the law, but by such prudent changes in the law, and perhaps in our constitutions, as will guide the courts in future adjudications." Address by James A. Garfield, 5 Leg. Gaz. 409. "The Dartmouth College Case and Private Corporations," by William P. Wells, (1886) 9 Am. Bar Assoc. Rep. 229, 241, 242. 2 Chenango Bridge Co. v. Binghamton Bridge Co., 3 Wall. 51, 73, per Mr. Justice Davis. an 3 Von Hoffman v. Quincy, 4 Wall. 535. "The doctrines nounced by this court more than sixty years ago have become so embedded in the jurisprudence of the United States as to make them to all intents and purposes a part of the constitution itself." Stone v. Mississippi, 101 U. S. 816. "The courts are estopped from questioning the doctrine." Chenango Bridge Co. v. Binghamton Bridge Co., 3 Wall. 51, 73. "The question decided in that (the Dartmouth College) case has since been considered as finally settled in the jurisprudence of the entire country. Murmurs of doubt and dissatisfaction are occasionally heard, but there has been no re-argument here and none has been asked for." Farrington v. Tennessee, 95 U. S. 685. it has been determined that it equally comprehends, in addition to acts of legislation, State constitutions and constitutional amendments, or any act or order from whatever source emanating, to which a State, by its enforcement thereof, gives the effect of a law; as, for instance, a statute enacted by the congress of the Confederacy and enforced during the war between the States by a court of a State within the hostile lines. But decisions of State courts of last resort, establishing a precedent in the same jurisdiction, are not such "laws" as come within the constitutional prohibition, unless they alter the construction of the constitution and statutes of the State in force when the contract was made. 1 Patterson's Federal Restraints on State Action, § 58, citing Ohio &c. R. Co. v. McClure, 10 Wall. 511; White v. Hart, 13 Wall. 646; Osborn v. Nicholson, 13 Wall. 654; County of Moultrie v. Rockingham TenCent Savings Bank, (1875) 92 U. S. 631, 635, distinguishing Aspinwall v. County of Davies, 22 How. 364, and Town of Concord v. Portsmouth Savings Bank, 92 U. S. 625, and say ing, "In neither of these cases was there any contract made before the authority to make one was annulled." "The operation of the constitution was only prospective." Edwards v. Kearzey, 96 U. S. 595; Keith v. Clark, 97 U. S. 454; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; Fisk v. Jefferson Police Jury, 116 U. S. 631. The constitution of Louisiana of 1879, which abrogates the monopoly features of existing corporations, is inoperative under the United States constitution, to affect the obligation of a contract incurred by the State in granting to the New Orleans Water Works Company the exclusive privilege of using the streets of New Orleans to lay water-pipes; and another company, which, by virtue of the State constitution, attempts to lay pipes, cannot justify its action, under Obviously the law which is al the police power of the State to regulate the supply of water, by simply showing that it will supply purer and more suitable water than the New Orleans Water Works Company, neither the legislature nor the city having taken any steps in the matter. Such a question must be first raised by some action of the State, not of the parties. St. Tammany Water Works Co. v. New Orleans Water Works Co., (1887) 120 U. S. 64. 2 Williams v. Bruffy, 96 U. S. 176; Stevens v. Griffith, 111 U. S. 48; Ford v. Surget, 97 U. S. 594; Patterson's Federal Restraints on State Action, § 58. 3 Gelpcke v. Dubuque, 1 Wall. 175; Olcott v. Supervisors, 1 Wall. 678; Chicago v. Sheldon, 9 Wall. 50; City v. Lamson, 9 Wall. 477; Douglass v. County of Pike, 101 U. S. 677; County of Ralls v. Douglas, 105 U. S. 628; Havemeyer v. Iowa County, 3 Wall. 294; Ohio &c. Co. v. Debolt, 16 How. 432, per Taney, C. J.; Patterson's Federal Restraints on State Action, § 58. "The State court may erroneously determine questions arising under a contract which constitutes the basis of the suit before it; it may hold a contract to be void, which, in our opinion, is leged to have impaired the obligation of the contract, must have been enacted subsequently to the making of the contract, for every law enacted antecedently to the making of the contract is considered to have entered into and become a part thereof. The constitutional prohibition is likewise inoperative with regard to the acts of any political organization which, at the time of the adoption of the act in question, is not one of the United States; thus the constitution having, under the resolution of the convention of 1787, and the Act of Congress of February, 1788, gone into effect on the first. Wednesday of March, 1789, a statute enacted by the State of Virginia in 1788 was not affected by the constitutional prohibition. So, also, a statute enacted by the republic of Texas, before its admission into the United States as the State of Texas, could not be held to be void for repugnancy to this clause of the constitution." § 21. Of the distinction between a franchise and a license. There is also to be noted a distinction between the grant of a franchise and a mere license, in that the former comes within the protection of the rule in the Dartmouth College case, while the latter is revocable at the pleasure of the grantor. Thus valid; it may adjudge a contract to be valid, which, in our opinion, is void; or its interpretation of the contract may, in our opinion, be radically wrong; but, in neither of such cases, would the judgment be reviewable by this court under the clause of the constitution protecting the obligation of contracts against impairment by State legislation, and under the existing statutes defining and regulating its jurisdiction, unless that judgment in terms, or by its necessary operation, gives effect to some provision of the State constitution, or some legislative enactment of the state, which is claimed by the unsuccessful party to impair the obligation of the particular contract in question." Mississippi & Missouri R. Co. v. Rock, 4 Wall. 177, 181; Ohio & Mississippi R. Co. v. McClure, 10 Wall. 511, 515; Knox v. Exchange Bank, 12 Wall. 379, 883; Delmas v. Insurance Co., 14 Wall. 661, 665; University v. People, 99 U. S. 309, 319; Chicago Life Ins. Co. v. Needles, 113 U. S. 574, 582; Lehigh Water Co. v. Easton, 121 U. S. 888, 392, per Harlan, J. 1 Lehigh Water Co. v. Easton, 121 U. S. 388, 391. 2 Owings v. Speed, 5 Wheat. 420; Patterson's Federal Restraints on State Action, § 57. 3 League v. De Young, 11 How. 185, 203: Scott v. Jones, 5 How. 343, 878; Patterson's Federal Restraints on State Action, § 57. 4 East Hartford v. Hartford Bridge Co., 10 How. 511 and 541; Philadelphia &c. Ry. Co.'s Appeal, (1884) 102 Pa. St. 123; Southwark R. Co. v. City of Philadelphia, 47 Pa. St. 314; it is held that a supplement to a charter which merely conveys a new right or enlarges an old one without imposing any additional burden, is a mere license or promise by the State, and may be revoked at pleasure. And a statute or ordinance authorizing a natural or artificial person to use or occupy a street or highway is, in the absence of a plainly expressed intention that the right shall be permanent, a mere license, and as such revocable, although the grantee has made valuable improvements in the belief that the privilege will not be recalled. For every licensee from a public authority necessarily takes it subject to this right of eminent domain, to be exercised for the benefit of the public in the future as well as in the past. "It is one of the fundamental rights of the government, never stationary, but ever keeping step with the march of science, art and public improvement." 3 § 22. The contract of the State with the incorporators.The Dartmouth College case is frequently cited as establishing the proposition that all charters of private corporations are contracts which the State cannot impair. "In this connection, however," said Chief Justice Waite, "it is to be kept in mind that it is not the charter which is protected, but only any contract which the charter may contain. If there is no contract, there is nothing in the grant on which the constitution can act; consequently, the first inquiry in this class of cases always is: Whether a contract has in fact been entered into, and if so, what its obligations are." Speaking generally, it may be said that every valuable privilege conferred upon the incorporators which conduced to the acceptance of the charter and organization thereunder, constitutes a contract." Branson v. City of Philadelphia, and canals have had their day, at(1864) 47 Pa. St. 329. tracting to their sides the industry 1 Philadelphia &c. Ry. Co.'s Ap- and capital of the citizen. peal, (1884) 102 Pa. St. 123. 2 Southwark R. Co. v. City of Philadelphia, 47 Pa. St. 314; Monongahela Navigation Co. v. Coons, 6 Watts & S. 101, 112; Hare's American Constitutional Law, 665, 666. Branson v. City of Philadelphia, (1864) 47 Pa. St. 329, 331, where the court continued, obiter, "Turnpikes But who has ever heard it said that the Commonwealth is bound to maintain her works merely because their use has thus built up a business dependent upon them." * Stone v. Mississippi, 101 U. S. 816. 5 Piqua Branch Bank v. Knoop, 16 How. 369. |