[263] be safe; and that on the other hand, the effect if not object of the Illinois Statute is to prevent such organizing, arming and disciplining of the militia. The plaintiff in error insists that the Act of Congress requires absolutely all able bodied citizens of the State, between certain ages, to be enrolled in the militia; that the Act of Illinois makes the enrollment dependent on the necessity for the use of troops to execute the laws and suppress insurrections, and then leaves it discretionary with the Governor by proclamation to require such enrollment; that the Act of Congress requires the entire enrolled militia of the State, with a few exemptions made by it and which may be made by state laws, to be formed into companies, battalions, regiments, brigades and divisions; that every man shall be armed and supplied with ammunition; provides a system of discipline and field exercises for companies, regiments, etc., and subjects the entire militia of the State to the call of the President to enforce the laws, suppress insurrection, or repel invasion; and provides for the punishment of the militia officers and men who refuse obedience to his orders. On the other hand, it is said that the state law makes it unlawful for any of its able bodied citizens, except eight thousand, called the Illinois National Guard, to associate themselves together as a military company, or to drill or parade with arms without the license of the Governor, and declares that no military company shall leave the State with arms and equipments without his consent; that even the eight thousand men styled the Illinois National Guard are not enrolled or organized as required by the Act of Congress, nor are they subject to the call of the President, but they constitute a military force, sworn to serve in the military service of the State, to obey the orders of the Governor, and not to leave the State without his consent; and that, if the state Act is valid, the national Act providing for organizing, arming and disciplining the militia is of no force in the State of Illinois, for the Illinois Act, so far from being in harmony with the Act of Congress, is an insurmountable obstacle to its execution. the indictment against the plaintiff in error is based, provides for a volunteer active militia, to consist of not more than eight thousand of ficers and men; declares how it shall be enlisted and brigaded, and the term of service of its of ficers and men; provides for brigade generals and their staffs, for the organization of the requisite battalions and companies and the election of company officers; provides for inspections, parades, and encampments, arms and armories, rifle practice and courts-martial; provides for the pay of the officers and men, for medical service, regimental bands, books of instruction and maps; contains provisions for levying and collecting a military fund by taxation, and directs how it shall be expended; and appropriates $25,000 out of the treasury, in advance of the collection of the military fund, to be used for the purposes specified in the Military Code. It is plain from this statement of the substance of the Military Code that the two sections upon which the indictment against the plaintiff in error is based may be separated from the residue of the Code and stand upon their own independent provisions. These sections might have been left out of the Military Code and put in an Act by themselves, and the Act thus constituted, and the residue of the Military Code, would have been coherent and sensible Acts. If it be conceded that the entire Military Code, except these sections, is unconstitutional and invalid, for the reasons stated by the plaintiff in error, these sections are separable and, put in an Act by themselves, could not be considered as forbidden by the clauses of the Constitution having reference to the militia, or to the clause forbidding the States, without the consent of Congress, to keep troops in time of peace. There is no such connection between the sections which prohibit any body of men, other than the organized militia of the State and the troops of the United States, from associating as a military company and drilling with arms in any city or town of the State, and the sections which provide for the enrollment and organization of the State militia, as makes it impossible to declare one without declaring both invalid. We have not found it necessary to consider or decide the question thus raised, as to the This view disposes of the objection to the validity of the entire Military Code of Illinois; judgment of the Supreme Court of Illinois, for, in our opinion, the sections under which which judgment was in effect that the legisla the plaintiff in error was convicted may be tion on which the indictment is based is not valid, even if the other sections of the Act invalid by reason of the provisions of the Conwere invalid. For it is a settled rule "that stitution of the United States, which vest Constatutes that are constitutional in part only will gress with power to raise and support armies, be upheld so far as they are not in conflict with and to provide for calling out, organizing, armthe Constitution, provided the allowed and pro- ing and disciplining the militia, and governing hibited parts are separable." Packet Co. v. such part of them as may be employed in the Keokuk, 95 U. S. 80 [Bk. 24, L. ed. 377]: Pen-service of the United States, and that provision niman's Case, and Unity v. Burrage, 103 U. S. 717, 459 [Bk. 26. L.ed. 604, 409]. See also TradeMark Cases, 100 U. S. 82 [Bk. 25, L. ed. 550]. We are of opinion that this rule is applicable in this case. The first two sections of article I. of the Military Code provide that all able bodied male citizens of the State between the ages of eighteen and forty-five years, except those exempted, shall be subject to military duty, and be designated the "Illinois State Militia," and declare how they shall be enrolled and under what circumstances. The residue of the Code, except the two sections on which which declares that "no State shall without the consent of Congress ✦✦✦ keep troops *** in time of peace." We are next to inquire whether the 5th and 6th sections of article XI. of the Military Code are in violation of the other provisions of the Constitution of the United States relied on by the plaintiff in error. The first of these is the Second Amendment, which declares: "A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." We think it clear that the sections under con sideration, which only forbid bodies of men to | or immunity of a citizen of the United States is 81 Ark. 455. though it is within the scope of its powers su- * *** We have not been referred to any statute of the United States which confers upon the plaintiff in error the privilege which he asserts. The only clause in the Constitution which, upon any pretense, could be said to have any relation whatever to his right to associate with others as a military company is found in the First Amendment, which declares that " Congress shall make no law ** abridging the right of the people peaceably to assemble It is undoubtedly true that all citizens capa-of grievances. ' and to petition the government for a redress This is a right which it bie of United States v. Cruikshank, ry force or reserve militia of the United States [supra], was an attribute of national citiz well as of the States; and, in view of this enship and, as such, under the protection of prerogative of the General Government, as well and guaranteed by the United States. But it f its general powers, the States cannot, even was held in the same case that the right peaceaying the constitutional provision in questionably to assemble was not protected by the clause of view, prohibit the people from keeping referred to, unless the purpose of the assembly and bearing arms, so as to deprive the United was to petition the government for a redress of States of their rightful resource for maintain-grievances. the public security, and disable the people| The right voluntarily to associate together as from performing their duty to the General Gov-a military company or organization, or to drill ement. But, as already stated, we think it or parade with arms, without and independent ta: that the sections under consideration do of an Act of Congress or law of the State au Bo have this effect. thorizing the same, is not an attribute of na 5 of the Military Code of Illinois, under military drill and parade under arms are subThe plaintiff in error next insists that the sec- tional citizenship. Military organization and Case of the first section of the Fourteenth ment of every country. They cannot be claimed ach he was indicted, are an invasion of that jects especially under the control of the governAndment to the Constitution of the United as a right independent of law. Under our politwhich declares: "No State shall make ical system they are subject to the regulation force any law which shall abridge the priv- and control of the State and Federal GovernPor immunities of citizens of the United ments, acting in due regard to their respective prerogatives and powers. The Constitution and * of the United States that the clause re- vain for any support to the view that these rights 1160.8. It cannot be successfully questioned that the [267] [268] or prohibit associations and meetings of the | L. ed. 704]; Marshall v. Grimes, 41 Miss. 27. If people, except in the case of peaceable assem- we yielded to this contention of the plaintiff in blies to perform the duties or exercise the priv- error we should render the sections invalid by ileges of citizens of the United States; and have giving them a strained construction, which also the power to control and regulate the or- would make them antagonistic to the law of ganization, drilling, and parading of military Congress. We cannot attribute to the Legisla bodies and associations, except when such bodies ture, unless compelled to do so by its plain or associations are authorized by the militia words, a purpose to pass an Act in conflict with laws of the United States. The exercise of this an Act of Congress on a subject 'over which power by the States is necessary to the public Congress is given authority by the Constitution peace, safety and good order. To deny the of the United States. We are therefore of opinpower would be to deny the right of the State ion that fairly coned the sections of the Milito disperse assemblages organized for sedition tary Code referred to do not conflict with the and treason, and the right to suppress armed laws of Congress on the subject of the militia. mobs bent on riot and rapine. In the case of New York v. Miln, 11 Pet. 102 [36 U. S. bk. 9, L. ed. 648], this court said: "We choose rather to plant ourselves on what we consider impregnable positions. These are, that a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, when that jurisdiction is not surrendered or restrained by the Constitution of the United States; that by virtue of this it is not only the right but the bounden duty of a State to advance the safety, happiness and prosperity of its people, and to provide for its general welfare by any and every Act of legislation which it may deem to be conducive to these ends, where the power over that particular subject or the manner of its exercise is not surrendered or restrained in the manner just stated," namely: by the Constitution and laws of the United States. See also Gibbons v. Ogden, 9 Wheat. 203 [22 U. S. bk. 6, L. ed. 71]; Gilman v. Philadelphia, 3 Wall. 713 [70 U. S. bk. 18, L. ed. 96]; License Tax Cases, 5 Wall. 462 [72 U. S. bk. 18, L. ed. 497]; United States v. Dewitt, 9 Wall. 41 [76 U. S. bk. 19, L. ed. 593]; United States v. Cruikshank, 92 Ú. S. 542 [Bk. 23, L. ed. 588]. These considerations and authorities sustain the power exercised by the Legislature of Illinois in the enactment of sections 5 and 6 of article XI. of the Military Code. The argument of the plaintiff in error that the legislation mentioned deprives him of either life, liberty or property without due process of law, or that it is a bill of attainder or ex post facto law, is so clearly untenable as to require no discussion. It is next contended by the plaintiff in error that sections 5 and 6 of article XI. of the Military Code, under which he was indicted, are in conflict with the Acts of Congress for the organization of the militia But this position is based on what seems to us to be an unwarranted construction of the sections referred to. It is clear that their object was to forbid voluntary military associations, unauthorized by law, from [269] organizing or drilling and parading with arms in the cities or towns of the State, and not to 433 [28 U.S. bk. 7, L. ed. 733]: Grenada County The plaintiff in error further insists that the organization of the Lehr und Wehr Verein as a corporate body, under the general corporation law of the State of Illinois, was in effect a license from the Governor, within the meaning of section 5 of article XI. of the Military Code, and that such corporate body fell within the exception of the same section "of students in educational institutions where military science is a part of the course of instruction." In respect to these points we have to say that they present no federal question. It is not, therefore, our province to consider or decide them. Murdock v. Memphis, 20 Wall. 590 [87 U. S. bk. 22, L. ed. 429]. All the federal questions presented by the record were rightly decided by the Supreme Court of Illinois. UNITED STATES, ex rel. HENRY (See 8. C. Reporter's ed. 289-306.) Constitutional law-municipal corporationsdissolution-liability of successors for debts— impairment of remedies-mandamus. 1. Where a municipal corporation is dissolved and a new corporation is created, composed of substanthe same taxable property, within reduced territo tially the same community, including substantially rial limits organized for the same general purposes and holding by transfer, without consideration, the public property of the former, it is the successor of the old corporation and is liable for its debts. 2. The obligations of municipal corporations.upon bonds duly issued by them, are secured by all the guaranties which protect the engagements of pri vate individuals. 3. Any legislative enactment which withdraws or limits the remedies for the enforcement of obligations assumed by a municipal corporation, where no substantial equivalent is provided, is forbidden by the Constitution of the United States. [Nos. 93, 94.] Argued Dec. 10, 11, 1885. Decided Jan. 4, 1885. IN ERROR to the Circuit Court of the United States for the Southern District of Alabama. Statement of the case by Mr. Justice Woods: The object of the first of these suits was the recovery of a judgment for money and of the second the enforcement, by the writ of manda, of the judgment recovered in the first. They were argued as one case. In the first case Henry Watson, the defendant in error, was the plaintiff in the circuit court. He brought his action against the Port of Mobile to recover the principal money due on certain bonds issued by the City of Mobile, under its corporate name: The Mayor, Aldermen and Common Council of the City of Mobile," and the interest on the same shown to be due by certain coupons thereto appended. The bonds were issued December 31, 1859, were for $1,000 each and were parable to the order of the Mobile and Great Northern Railroad Company on the first day of January, 1879, with interest at the rate of 8 per cent per annum. Upon the margin of each bond was the following recital:"In pursuance of the terms of the contract between the corporate authorities of the City of Mobile and the Mobile and Great Northern Railroad Company, an ordinance approved on the 30th December instant, provides for the sum of $95,000 by a special tax annually to be applied to the payment of $1,000,000 of bonds to be issued by the City of Mobile to aid in the construction of the Mobile and Great Northern Railroad." The declaration averred that the defendant, the Port of Mobile, was "the legal successor of the said, the Mayor, Aldermen and Common Council of the City of Mobile, and bounden for its debts and for the payment of the said bonds and coupons." torial extent of the City of Mobile was about The defendant pleaded "that the said alleged bends and coupons were issued by the Mayor, Aldermen and Common Council of the City of Marie, a different municipal corporation, and 30 by this defendant, nor by anyone authorzed to bind this defendant in the premises; that this defendant is not the successor in law or in fact of the said the Mayor, Alderman and Common Council of the City of Mobile; SC is this defendant legally bounden to pay the and debt." It appeared by the record that the case was submitted to the jury on June 29, 1880, which, on that day, returned a general verdict for the plaintiff, and assessed his damages at $7,308.80, upon which the court at once rendered judg ment in his favor. A writ of error sued out by the Port of Mobile brings this judgment under revier. The only question raised upon the trial was, whether, as matter of law, upon the statutes of the State of Alabama, the Port of Mobile was the legal successor of the City of Mobile, and bound for the payment of the bonds and coupons sued on. The validity of the judgment in the case of the Port of Mobile, plaintiff in error, against Watson, will therefore depend upon the answer to that question. The plaintiff having obtained his judgment against the Port of Mobile, sued out, May 27, 1881, execution thereon, which on the same day was returned by the marshal-"no property found." Afterwards, on the 19th day of January, 1882, he filed in the circuit court his petition, in which he prayed for the writ of mandamus, and charged that the police board of the Port of Mobile had the right and it was their duty to assess and levy a special tax for the satisfaction of his judgment. He therefore, prayed in the record there was a paper, entitled for the writ to compel the Port of Mobile and Agreement of Facts," signed by the counsel its officers charged with the levying and collecbe parties. By this paper it was admitted tion of taxes to assess, levy and collect a special the Mobile and Great Northern Railroad Compa- | the contract between the City of Mobile and tax for the payment of his judgment. In order to understand the questions raised 47, recited in the margin of the bonds, had been by this petition, it will be necessary to state de and the ordinance therein referred to had more fully the contract made by the City of passed, and that the plaintiff became the le- Mobile with the Mobile and Great Northern fre maturity by the assignment of the railroad the series of bonds in question, and the legislader of the bonds and coupons for value be- Railroad Company in reference to the issue of were passed by the Legislature of Alabama on City of Mobile and the Port of Mobile. Tpany. It was further agreed that two Acts tion of the State of Alabama in reference to the ed "An Act to Vacate and Annul the Char- | ruary 29, 1859, the City of Mobile was author- By the Act of the Legislature, approved Feb ferred to and made part of the agreement. carry out such contract. In pursuance of this It was further agreed that all the territory now authority the City of Mobile, on December 30, Paced in the Port of Mobile was formerly 1859, entered into a contract with the railroad extraced in the City of Mobile; that the terri- | company, in which, among other things, it was 116 C. S. [292] provided that the City should issue to the railroad company, on or before January 2, 1860, its bonds to the amount of $1,000,000, and that the City should annually, after January 1, 1860, provide the sum of $95,000, to be applied to the payment of the bonds and coupons thereto attached as they become due, by a special tax to be levied and collected by the City for that purpose, and that the City should pass the bylaws and ordinances necessary to that end. In pursuance of this contract the City of Mobile, on December 30, 1859, passed an ordinance which provided that for the year 1860, and annually thereafter, there should be levied and collected a special tax upon the assessed value of all the taxable property in the City of Mobile sufficient to produce the said sum of $95,000, and that the money so raised should be pledged to the payment of said bonds and the interest [293] coupons. Upon the faith of the Act of the Legislature referred to, and the contract and ordinance of the City of Mobile, bonds of the City to the amount of $1,000,000 were issued to the railroad company and by it assigned and sold. The City of Mobile having, in the year 1878, made default in the payment of the interest on its debt, which then exceeded $2,500,000, the Legislature, on February 11, 1879, passed "An Act to vacate and annul the charter and dissolve the corporation of the City of Mobile, and to provide for the application of the assets thereof in discharge of the debts of said corporation." [294] This Act, by its first section, repealed the charter of the City of Mobile, and declared that the corporation of the City of Mobile, known as "The Mayor, Aldermen and Common Council of the City of Mobile," was thereby dissolved and abolished. territory not embraced within the limits prescribed by the charter of the City of Mobile. The Act provided for the election of eight persons to be styled the Mobile Police Board, for a tax collector and other officers, and made it the duty of the tax collector to collect all taxes and license charges, and to perform and discharge all such other duties as might be required of him by the police board. It empow ered the police board to levy and collect, for each year of its existence, upon the assessed value of all property and subjects of state taxation within the Port of Mobile, a tax of six tenths of 1 per centum for the purpose of defraying the expenses of carrying out the provis ions of the Act, and made the assessment returned by the assessor of Mobile County for the preceding year that on which the tax should be levied and collected. The Act further provided that the police board should have and exercise the powers thereby conferred on them and no other, and repealed all conflicting Acts and parts of Acts. After the recovery by the plaintiff of his judg ment against the Port of Mobile, on June 29, 1880, the Legislature of Alabama, on Decem ber 8, 1880, passed an Act which declared that the Police Board should not levy any other tax than the six tenths of one mill on the dollar authorized by the seventeenth section of the Act of February 11, 1879, "to incorporate the Port of Mobile and provide for the government thereof," and the license taxes authorized by section 30 of that Act. The Legislature, on December 8, 1880, also passed "An Act to adopt and carry into effect the plans for the adjustment and settlement of the existing indebtedness of the late Corporation," the City of Mobile, etc. This Act was subsequently, on February 24, 1881, re-enacted with material amendments. The Act then provided for the appointment, by the Governor of the State, of three commissioners whose duty it should be to take posses- The amended Act provided for an issue of sion of all the property and assets of the City of $2,500,000 of the bonds of the City of Mobile, Mobile, to hold such property and assets upon to be dated January 1, 1881, and to be payable the same trusts and subject to the same liens in twenty-five years, with interest at 3 per cent and charges that the same were under when in for five years, 4 per cent for fifteen years, and the possession of the City of Mobile; and, un- five per cent for the remaining five years. These der the direction and pursuant to the orders of bonds were to be used by exchanging them for the Chancery Court of the County of Mobile, the bonds of the City of Mobile of the issue of collect the debts and taxes due the City and sell May 1, 1875; but no available provision was its property and apply the taxes and debts col- made in the Act for the payment or satisfaction lected and the proceeds of the property sold to of the issue of which the plaintiff's bonds the payment of the debts of the City, the float- formed a part. The Act further required the ing debt to be first paid. The Act declared commissioners of the City of Mobile, immedithat the commissioners should have no power ately after its passage, to turn over to the Poto levy any tax or assessment whatever, but lice Board of the Port of Mobile "all the real that it should be their duty to treat with the and personal property which was formerly held holders of the funded debt of the City of Mo- and owned" by the City of Mobile "for public bile with a view to its adjustment and settle- use and governmental purposes," such as public ment, and to report to the Governor the result buildings, markets, squares, parks, fire engines, of their negotiations, together with the draft of engine houses, hose and hose carriages, engisuch Act as might be proper to carry into ef- neering instruments, and all other property of fect any scheme of adjustment that might re-like character and use, except only the wharves. sult from such negotiations; all of which it was made the duty of the Governor to submit to the Legislature. On the same day, to wit: February 11, 1879, the Legislature passed "An Act to incorporate the Port of Mobile, and provide for the government thereof." Such was the legislation of Alabama in reference to the City of Mobile and the Port of Mobile when the plaintiff filed his petition for the writ of mandamus. The defendants to the petition, namely: the Port of Mobile and the Police Board of the Port of Mobile, filed a demurrer and also an answer to the petition. In This Act incorporated, under the name of the the latter they denied that the Port of Mobile Port of Mobile, the inhabitants residing within was the successor of the City of Mobile, boundcertain specified boundaries, which included noen for its debts and the performance of its du เม |