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might in accordance with the charter of the company be made against him. By a provision in the charter those insuring in the company become members thereof during the time they should remain insured and no longer. By a clause in the policy issued to defendant, it was provided that whenever an assessment made on a premium note should not be "paid within thirty days from the time the same is demanded by said company, then this policy shall be void. But the said company shall have a right to collect the amount due on said assessment." The company made an assessment on defendant's note which was not paid within thirty days after demand. Thereafter, but within the five years for which the policy was to run, another assessment was made. The question was, whether this second assessment was valid, it being claimed by defendant that the non-payment of the first assessment rendered the policy void and that no further assessment could be made. The court held, however, that the failure to pay did not render the policy ipso facto void, but merely gave the company an option to declare such policy canceled; but it might waive that right and continue to assess the premium note. The decision

is in accordance with Neely v. Onondaga Co. Mut. Ins.

Co., 7 Hill, 50, where a policy having become void by reason of the alienation of the insured property an assessment was held valid though for losses occurring after the alienation, and it was also held that the company by making and collecting it, with knowledge of the alienation, did not revive the policy so as to render this company liable for the loss of the insured property. See also Flanders on Ins. 28, 147; Atlantic Ins. Co. v. Goodsell, 35 N. H. 328; Hyatt v. Wait, 37 Barb. 29; Finley v. Lycoming Co. Mut. Ins. Co., 6 Casey, 311; Hummell & Co.'s Appeal,

28 P. F. Smith, 320.

In the case of Sooy ads. State, 10 Vroom, 135, the duty of an employer taking a bond for the good conduct of an employee to communicate to the surety such knowledge as he has in relation to the character and previous conduct of the employee, is asserted. The action was by the State of New Jersey against the sureties upon the bond of the State treasurer for moneys alleged to be embezzled by him. A defense was that Sooy, who had previously been in charge of the moneys of the State, had, before the execution of the bond, embezzled various sums, that these embezzlements were known to the State, but were not communicated to the sureties.

The court, on demurrer by the State, held the defense sufficient. The duty of the obligee both in morals and law to make a full, fair and honest communication of every circumstance calculated to influence the discretion of the surety in entering into the obligation, has always been maintained. See Owen v. Homan, 3 Mac. & G. 378. In Smith v. Governor, etc., of Bank of Scotland, 1 Dow.

272, a defense to a bond of this nature was that such instrument had been obtained by undue concealment on the part of the obligees, such concealment consisting in the non-disclosure that the agent, for whose conduct the bond was given, was at the time in arrears in his accounts and insolvent. The House of Lords sustained the defense. also Railton v. Mathews, 10 Cl. & Fin. 934; Phillips v. Foxall, L. R., 7 Q. B. 666; Franklin Bank v. Cooper, 36 Me. 179; Atlas Bank v. Brownell, 11 Am. Rep. 231.

See

The Supreme Court of Mississippi, in the case of New Orleans, S. L. & Ch. R. R. Co. v. Burke, decided at the last term, pass upon the interesting question as to the duty a carrier of passengers to protect a passenger from assault by other passengers. In this case plaintiff, who was riding on one of defendant's trains, having been rudely used by some passengers, who deprived him of his hat, sought the conductor for assistance. The conductor went with plaintiff to where the disorderly persons were, and endeavored to obtain a restitution of the hat. Plaintiff was thereupon immediately attacked, when the conductor deserted him, and he was obliged to resist alone, and in doing so was shot by one of his assailants. The conductor then interfered and got the plaintiff to a place of safety, though he allowed

the assailants to remain on the train. The court held that the defendant was liable for the injury done plaintiff, and that the action of the conductor, coupled with the fact that the assailants, who were employees of the defendant, though not at the time in the performance of their duties as such, were not thereafter discharged, rendered it a case for exem

plary damages. The case is similar to that of Railway Co. v. Hinds, 53 Penn. St. 512, where a passenger's arm was broken in a fight between some disorderly persons in the car, and the company was held liable. In that case the conductor went on collecting fares, and did not stop the train and expel the rioters, or demonstrate by an earnest effort that it was impossible to do so. In Flint v. Transportation Co., 34 Conn. 554, a passenger was injured by the discharge of a gun dropped by some soldiers engaged in a scuffle, and a verdict for damages was given, the court holding that passenger carriers are bound to exercise the utmost vigilance and care to | guard those whom they transport from violence from whatever source arising. The same doctrine was approved in Goddard v. G. Trunk Ry. Co., 57 Me. 202; 2 Am. Rep. 39, though the action there was for injury inflicted by a servant of the company. The subject is fully considered in Putnam v. Broadway and Seventh Av. R. R. Co., 14 Am. Rep. 190. See also Pittsburgh & Con. R. R. Co. v. Pillow (76 Penn. St. 510), 18 id. 424, and note, p. 427; Sherley v. Billings, 8 id. 451; Bryant v. Rich, id. 311; Hansen v. En. & N. A. R. R. Co., 16 id. 404.

A

STATE CITIZENSHIP.

BY SAMUEL T. SPEAR, D. D. STATE, in the sense in which this term is used in the Federal Constitution, is not only a political community having a defined territorial boundary, and living under an organized government sanctioned by a written, local constitution, and republican in its form, but also a member of the Union, or the greater political community designated as the United States. The Constitution takes no cognizance of a State, except in this relation. See Hepburn & Dundas v. Ellzey, 2 Cranch, 445; Cherokee Nation v. Georgia, 5 Pet. 1; Scott v. Jones, 5 How. 343, and Texas v. White, 7 Wall. 700.

Political membership, in such a State, is the essential idea of State citizenship; and as to the persons entitled thereto, and subject to the responsibilities thereof, the Fourteenth Amendment declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the State wherein they reside." Simple residence in a State secures, under this provision, to such persons the status of State citizenship.

As to the position and powers of a State within the limits of its own territory, and over its own citizens, a fundamental principle of the Constitution is, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." Within the limits of these powers the States are as independent of the General Government, and of each other, as they could be if they were foreign nations. In Buckner v. Finley, 2 Pet. 586, the Supreme Court of the United States said: "For all national purposes embraced by the Federal Constitution, the States and the citizens thereof are one, united under the same sovereign authority and governed by the same laws. In all other respects the States are necessarily foreign to, and independent of, each other." The doctrine of the same court in The City of New York v. Miln, 11 Pet. 102, was, "that a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States;" that "all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained;" and "that, consequently, in relation to these the authority of a State is complete, unqualified and exclusive." So, also, in The Collector v. Day, 11 Wall. 113, the same court, in 1870, said: "The General Government and the States, though both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other within their re

spective spheres. The former, in its appropriate sphere, is supreme; but the States within the limits of their powers not granted, or, in the language of the Tenth Amendment, 'reserved,' are as independent of the General Government, as that Government, within its sphere, is independent of the States."

It necessarily follows that the obligations, and also the privileges and immunities of State citizenship, except as modified by the Constitution of the United States, have their basis exclusively in State authority. They arise and exist under State constitutions and laws, and, with the above qualification, must be interpreted by them. Each State determines for itself the meaning of the word "citizen " in respect to its own citizen members; and so long as it does not come into conflict with the Federal Constitution, its determination is reviewable by no power on earth.

The phrase "privileges and immunities," used in application to State citizenship, occurs in that provision of the Constitution which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." The meaning of this language will be best ascertained by the comment of text-writers, and especially the judicial tribunals of the country.

Judge Jameson, in his work on The Constitutional Convention, p. 338, remarks that the words "in the several States" evidently qualify the word "entitled," rather than the nearer word "citizens." The sentence, according to this suggestion, would read thus: "The citizens of each State shall be entitled, in the several States, to all privileges and immunities of citizens." The object, certainly, was not to give to the constitution and laws of any State an extra-territorial operation, and thus enable the citizen of a State, when going into another, to carry with him into the latter State the constitution and laws of the former as the rule of his rights therein. The "privileges and immunities," as guaranteed to him in the latter State in virtue of his citizenship in the former, are those and those only which it accords to its own citizens as the consequence of their citizenship.

Daniel Webster, in his argument before the Supreme Court of the United States in The Bank of the United States v. Primrose, referring to this clause of the Constitution, said, that “for the purposes of trade, commerce, buying and selling, it is evidently not in the power of any State to impose any hindrance or embarrassment, or lay any excise, toll, duty or exclusion upon citizens of other States, or place them, coming there, upon a different footing from her own citizens." Webster's Works, vol. 6, p. 112. Mr. Webster's idea is, that the rule in respect to civil rights which the State adopts for her own citizens, she must apply to the citizens of other States whenever her jurisdiction acts upon them, and thus secure what he aptly terms a "community

of rights and privileges." Each State makes the rule for its own citizens; yet, having made it, then it must not exclude the citizens of other States from its benefits. See Amy v. Smith, 1 Litt. 333; Campbell v. Morris, 3 Har. & McHen. 554; Murray v. McCarthy, 3 Munf. 393; Austin v. The State, 10 Mo. 592; Lemmon v. The People, 20 N. Y. 608; Abbott v. Bayley, 6 Pick. 92; Crandall v. The State, 10 Conn. 340, and Serg. Con. Law, 2d ed., p. 393. Judge Story, in his Com., sec. 1806, says: "The intention of this clause was to confer on them (the citizens of each State), if one may so say, a general citizenship, and communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances." If, for example, the citizens of a State have the right to hold property or sue in its courts, then the citizens of other States must in that State have the same right. Justice Curtis, in Scott v. Sandford, 19 How. 580, speaks of the privileges and immunities referred to in the clause, as being the "privileges and immunities of general citizenship." So, also, in the recent case of McCready v. The State of Virginia, Alb. Law Jour., vol. 15, p. 413, ChiefJustice Waite said that these privileges and immunities are those of "general," but not of "special citizenship" as united with and affected by domicile in a particular State. Hence, any privileges that depend on domicile in connection with the fact of citizenship in a given State, are not included in the privileges that relate simply to "general citizenship."

In Conner v. Elliott, 18 How. 591, Justice Curtis, in stating the opinion of the court, said: "It is sufficient for this case to say that, according to the express words and clear meaning of this clause, no privileges are secured by it except those which belong to citizenship. Rights attached by law to contracts, by reason of the place where such contracts are made or executed, wholly irrespective of the citizenship of the parties to those contracts, cannot be deemed 'privileges of a citizen' within the meaning of the Constitution.”

tion by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State, for the purposes of trade, agriculture, professional pursuits, or otherwise, to claim the benefit of the writ of habeas corpus, to institute and maintain actions of every kind in the courts of a State, to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes and impositions than are paid by other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental, to which may be added the elective franchise, as regulated by the laws and constitution of the State in which it is to be exercised."

This language was, in The Slaughter-House Cases, 16 Wall. 36, made the subject of the following comment by the Supreme Court: "This definition of the privileges and immunities of citizens of the States is adopted in the main by this court in the recent case of Ward v. The State of Maryland, while it declines to undertake an authoritative definition beyond what was necessary to that decision. The description, when taken to include others not named, but which are of the same general character, embraces nearly every civil right for the establishment and protection of which organized government is instituted. They are, in the language of Judge Washington, those rights which are fundamental. Throughout this opinion they are spoken of as rights belonging to the individual as a citizen of a State. They are so spoken of in the constitutional provision which he was construing. And they have always been held to be the class of rights which the State governments were created to establish and secure."

In Ward v. Maryland, 12 Wall. 418, above reA very lucid statement on this subject was given ferred to, the Supreme Court held the following many years since by Justice Washington in Corfield language: "Attempt will not be made to define the v. Coryell, 4 Wash. (C. C.) Rep. 371, from which words 'privileges and immunities,' or to specify the we quote as follows: "The inquiry is, what are the rights which they are intended to secure and proprivileges and immunities of citizens in the several tect, beyond what may be necessary to the decision States? We feel no hesitation in confining these ex- of the case before the court. Beyond doubt those pressions to those privileges and immunities which are words are words of very comprehensive meaning, in their nature fundamental, which belong, of right, but it will be sufficient to say that the clause plainly to the citizens of all free governments, and which and unmistakably secures and protects the right of have at all times been enjoyed by the citizens of the a citizen of one State to pass into any other State of several States which compose this Union, from the the Union for the purpose of engaging in lawful time of their becoming free, independent, and sov- commerce or business without molestation, to acquire ereign. What these fundamental principles are it personal property, to take and hold real estate, to would perhaps be more tedious than difficult to maintain actions in the courts of the State, and to enumerate. They may, however, be all compre- be exempt from any higher taxes than are imposed hended under the following general heads: protec-by the State upon its own citizens."

The same subject was considered in Paul v. Virginia, 8 Wall. 168, from which we quote as follows: "It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States and egress from them; it insures to them in other States the same freedom possessed by citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of the laws. But the privileges and immunities secured to citizens of each State in the several States, by the provision in question, are those privileges and immunities which are common to citizens in the latter States, under their constitutions and laws, by virtue of their being citizens. Special privileges enjoyed by citizens in their own States are not secured in other States by this provision. It was not intended by the provision to give to the laws of one State any operation in other States."

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Referring, in the Slaughter-House Cases, supra, to the language used in this case, the Supreme Court said: "The constitutional provision there alluded to did not create those rights which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised, nor did it profess to control the power of the State governments over the rights of their own citizens. Its sole purpose was to declare to the several States that, whatever these rights are, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restraints upon their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. It would be the vainest show of learning to attempt to prove by citations of authority that, up to the adoption of the recent amendments, no claim or pretense was set up that those rights depended on the Federal Government for their existence or protection, beyond the very few express limitations which the Federal Constitution imposed upon the States, such, for instance, as the prohibition against er post facto laws, bills of attainder and laws impairing the obligation of contracts. But, with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional power of the States, and without that of the Federal Government."

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and protection of these rights from the States to the Federal Government," and "bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States," the court in this case, after stating the results of such a theory, especially in changing "the relations of the State and Federal governments to each other and of both these governments to the people," proceeded to say: "We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them." The theory would enable Congress to "pass laws in advance, limiting and restricting the exercise of legislative power by the States in their most ordinary and usual functions, as in its judgment it may think proper, on all such subjects." It would "fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them, of the most ordinary and fundamental character." It would constitute the Supreme Court "a perpetual censor upon all the legislation of the States on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment." Such is the picture of the consequences of a theory which the court expressly rejected.

We are now prepared to state as follows, the meaning of the constitutional clause relating to the privileges and immunities of citizens in the several States: 1. The clause applies simply to "the citizens of each State," considered as the persons to whom the guaranty is given. 2. The guaranty operates for their protection in other States, and not in the State of their residence. 3. The rights protected by it are the general and fundamental rights that belong to State citizenship as such, and not any special rights or privileges that may be founded on domicile in a particular State. 4. The measure of the guaranty in each State, with reference to the citizens of other States, is the rule which the State applies to its own citizens in virtue of their citizenship. 5. The limits within which this rule acts are the powers reserved to the States by not being granted to the United States, and not denied to the States.

These "privileges and immunities," except as State power may be limited or qualified by the Federal Constitution, must, in each State, look exclusively to the State government for their definition and protection. Their similarity in the several States is due to the fact that these States concur in recognizing and establishing them, and not to any power which one State has within the territorial limits of another. They were distinctly referred to in the Articles of Confederation, and hence preceded Amendment was intended to transfer the security the adoption of the Constitution. The phrase

As to the question whether the Fourteenth

"privileges and immunities" was borrowed from these Articles, and passed into the Constitution with a definite and well understood meaning. That meaning Justice Washington explained at an early day, and ever since his exposition has generally been accepted by the courts.

This clause, however, by no means exhausts the provisions of the Constitution in respect to the rights of State citizens. There are other provisions relating to them, either actually bestowing rights or protecting them. We present the following enumeration of the rights which these other provisions either establish or guarantee: 1. The right of the citizen electors in each State, qualified by its constitution and laws, to vote for members of the most numerous branch of its legislature, to vote also for Representatives in Congress, subject to such rules as the legislature may prescribe in respect to "the times, places and manner of holding" such elections, or such as Congress may provide by law. 2. The right to seek judicial relief in the courts of the United States in controversies between citizens of different States, or between citizens of the same State claiming lands under grants of different States, or between citizens of a State and foreign States, citizens or subjects. 3. The right, under the provisions of law, to remove causes from State to Federal courts, in cases where the jurisdiction of the latter depends on the citizenship in different States of the parties thereto. 4. The right, by writ of error, to appeal to the Supreme Court of the United States, where the judgment has been rendered in the highest State court in which the suit could be tried, and where the nature of the matter involved brought into question the Constitution, laws or treaties of the United States, or any rights secured thereby. 5. The right to absolute immunity as against any bill of attainder, ex post facto law, or law impairing the obligation of contracts enacted by State authority. 6. The right to freedom as opposed to slavery established by State authority, and as opposed to involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted. 7. The right to exemption from any deprivation of life, liberty or property, without due process of law. 8. The right to the equal protection of the laws. 9. The right not to be excluded by any State from the exercise of the elective franchise "on account of race, color or previous condition of servitude." 10. The right, in each State, to a republican form of government.

These rights the Constitution of the United States secures to every State citizen in the State of his residence. Some of them have their basis exclusively in this Constitution, and others are simply protected by it as against any abuses by State power. No State can abrogate or invade these rights, without coming into conflict with the fundamental law of the land.

While it is true that the Constitution places the States under certain restraints with reference to their own citizens, and that the recent amendments have added to these restraints, it is equally true that the States, except as thus restrained, are independent sovereignties within their respective territorial limits. It belongs to them, and not to Congress, to define the "privileges and immunities" of their own citizens, and enact laws to secure them. The power of Congress, whether express or implied, to enforce the restraints imposed on State power, is not a power to exercise State power, or to do what in its judgment the States ought but fail to do. It is not a power to establish a municipal code in the States, to be operative on private individuals, to be the basis of original proceedings in the Federal courts, to take the place of State laws, or supersede those laws. State powers do not vest themselves in Congress when they fail to be properly exercised by the States.

The Constitution, for example, provides that no State "shall deprive any person of life, liberty or property without due process of law," and authorizes Congress to enforce this restraint by appropriate legislation. Here are three fundamental rights of State citizenship protected as against any abuses by State authority. Does this give to Congress the power to establish a penal code for the trial and punishment of the offenses which the citizens of a State may commit against each other in respect to these rights? We cannot better answer this question than by quoting the language of Justice Bradley in the Grant Parish case, who, in reference to this provision of the Constitution, said: "It is a constitutional security against arbitrary and unjust legislation by which a man may be proceeded against in a summary manner, and arbitrarily arrested and condemned, without the benefit of those time-honored forms of proceeding in open court and trial by jury, which is the clear right of every freeman both in the parent country and in this. It is a guaranty of protection against the acts of the State government itself. It is a guaranty against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the State, not a guaranty against the commission of individual offenses; and the power of Congress, whether express or implied, to legislate for the enforcement of such a guaranty, does not extend to the passage of laws for the suppression of ordinary crime within the States. This would be to clothe Congress with the power to pass laws for the general preservation of social order in every State. The enforcement of the guaranty does not require or authorize Congress to perform the duty which the guaranty itself supposes it to be the duty of the State to perform, and which it requires the State to perform. No State may pass a law impairing the obligation of contracts. Does this authorize Congress to pass

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