and undertake to do that which the people, in their sovereign capacity, had forbidden." 1 1 Dissenting opinion of Mr. Justice McIver in R. R. Co. v. Gibbes, 27 S. C. 385. A list of cases follows in which the limitations upon the reserved power are discussed. The greater number hold that the reservation is good. U. S. cases: Miller v. State, 15 Wall. 478; Close v. Glenwood Cemetery, 107 U. S. 466; Looker v. Maynard, 179 U. S. 46; Bryan v. The Church, 151 U. S. 639; Smith v. Atchison, Topeka & Santa Fé R. R. Co., 64 Fed. 272; C. H. Venner Co. v. United States Steel Corporation, 116 Fed. 1012; Hill v. Glasgow R. R. Co., 41 Fed. 610; Clearwater v. Meredith, 1 Wall. 25; McKee v. Chatauqua Assembly, 130 Fed. 536; Howrey v. Indianapolis & Cincinnati R. R. Co., 4 Biss. 78; Pennsylvania College Cases, 13 Wall. 190. Conn: N. H. etc., R. R. v. Chapman, 38 Conn. 56; Bishop v. Brainerd, 28 Conn. 289. Kentucky: Louisville v. University, 15 B. Monr. 642; Sage v. Dillard, 15 B. Monr. 340; Shelby County v. Shelby R. R. Co., 5 Bush. 225; Orr v. Bracken Co., 81 Ky. 593California: Market St. R. R. Co. v. Hellman, 109 Cal. 571. Georgia: Snook v. Improvement Co., 83 Ga. 61. Illinois: Park v. Modern Woodman of America, 181 Ill. 214. Indiana: Hanna v. R. R., 20 Ind. 30; McCray v. Junction R. R. Co., 9 Ind. 358. Maine: Oldtown & Lincoln R. R. Co. v. Veazie, 39 Me. 571; South Bay Meadow Dam Co. v. Gray, 30 Me. 547. Maryland: Phinney v. Trustees, 88 Md. 633; Sprigg v. Telegraph Co., 46 Md. 67; Jackson v. Walsh, 75 Md. 304. Mass.: Agricultural Branch R. R. Co. v. Winchester, 95 Mass. 29; Durfee v. Old Colony R. R. Co., 87 Mass. 230; Hale v. Cheshire R. R. Co., 161 Mass. 443. Montana: Allen v. Ajax Mining Co., 77 Pacific 47. New Hampshire: Dow v. Northern R. R. Co., 36 Atl. Rep. 510, Judge Doe. Missouri: Gregg v. Smelting Co., 164 Mo. 616; State v. Green, 78 Mo. 188; Fisher v. Patton, 134 Mo. 321; Pacific R. R. Co. v. Hughes, 22 Mo. 291; Pacific R. R. Co. v. Renshaw, 18 Mo. 210. New Jersey: In re Newark Library Ass'n, 64 N. J. L. 217; Berger v. U. S. Steel Corp'n, 63 N. J. Eq. 809; Zabriskie v. Hackensack R. R. Co., 18 N. J. Eq. 178; Schwarzwaelder v. German Mutual Fire Ins. Co., 59 N. J. Eq. 589; Story v. Plankroad Co., 60 N. J. Eq. 13; Mills v. Central R. R. Co., 41 N. J. Eq. 1. New York: People v. Hills, 46 Barb. 340, 35 N. Y. 449; Hyatt v. Esmond, 37 Barb. 601; Joslyn v. S. S. Co., 12 Abb. Pr. Rep. N. S. 329; Buffalo, etc., R. R. Co. v. Dudley, 14 N. Y. 336; Troy & Rutland R. R. Co. v. Kerr, 17 Barb. 581; Grobe v. Ins. Co., 169 N. Y. 613; Plankroad v. Griffin, 24 N. Y. 150; Union Hotel Co. v. Hersee, 79 N. Y. 454; While there can be no doubt that the State may exercise its police power in such a way as to affect the corporation contract and general or special franchises. of a corporation as it does the contracts and property of individuals, the same rule applies, that such exercise, whether under reserved power or not, has attached to it the limitation that it must be such as the courts would determine to be reasonable. And incorporators may demand that the courts protect their right to contract under the Fourteenth Amendment, and the courts have the duty to give such protection. The criterion is reasonableness, the right is a commonlaw right, and protection is guaranteed by the Constitution of the United States, and the subject is thus one to be covered by the common law of the United States." Hyatt v. McMahon, 25 Barb. 457; Northern R. R. Co. v. Miller, 10 1 Catawissa & Bloomsburg Electric Street Railway Co. v. Columbia & Montour Electric Ry. Co, 12 Dist. Rep. Pa. 101. It was said in Fletcher v. Peck, 6 Cranch, 87, the case upon which Dartmouth College Case was based, that a grant in its own nature amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. Attorney-General Wirt argued that it was the inviolability of private contracts, and of private rights acquired under them, and not grants of franchises by the State, which was intended to be protected by the Constitution. See Thompson, op. cit. 5421 ff. This law was applied upon the appeal in Debolt v. Ohio Life Ins. Co., 1 Ohio State, 563, reversed in 16 How. 416; Mechanics' and Traders' Bank v. De Bolt, ibid. 591, reversed in 18 How. 380; $33. THE NATION IS CLOTHED WITH AMPLE Power TO PROTECT ALL RIGHTS PUBLIC AND PRIVATE.-That this obligation was seen at the beginning and was not, as some assert, introduced by the Fourteenth Amendment, is shown by the following quotation from the opinion of Justice Wilson in the case of Chisholm v. Georgia.1 "To the Constitution of the United States the term sovereign is totally unknown. States and governments were made for man. Let a State be considered as subordinate to the people. In one sense the term sovereign has for its correlative the term subject. In this sense the term can receive no application, for it has no object in the Constitution of the United States. The Parliament forms the great body politic of England. What, then, or where, are the people? From legal contemplation they totally disappear. In the United States and in the several States, the States, rather than the people, for whose sakes the States exist, are frequently the objects which attract our principal attention, 'The United States,' instead of 'The People of the United States.' This is not politically correct. With the strictest propriety, our national scene opens with the most magnificent object which the nation could present. The People of the United States' are the personages introduced. Who were these people? They were the citizens of the Thirteen States, each of which had a separate Constitution and government and all of which were connected together by the Articles of Confederation. To the purpose of public strength and felicity, that Confederacy was totally inadequate. A requisition on the several States terminated its legislative authority; Knoup v. Piqua Bank, ibid. 603, reversed in 16 How. 369; Toledo Bank v. Bond, ibid., 622, all upon the decision in Dartmouth College v. Woodward, 4 Wheat. 518. Dallas, 453. In order, executive, or judicial authority, it had none. therefore, to ensure domestic tranquillity, to provide for common defense and to secure the blessings of liberty, those people, among whom are the people of Georgia, ordained and established the present Constitution. By that Constitution, legislative power is vested, executive power is vested, judicial power is vested. The question now fairly opens to our view, could the people of those States, among whom were those of Georgia, bind those States, and Georgia among the others, by the legislative, executive, and judicial power so vested? The question must receive an affirmative answer. If those States were the work of those people, those people could alter their former work as they chose. Under the Constitution there are citizens but no subjects. There are 'citizens of the United States.' Art. I, sec. 2. 'Citizens of another State.' 'A State and citizens thereof.' Art. III, sec. 3. Whoever considers in a combined and comprehensive view the general texture of the Constitution, will be satisfied that the people of the United States intended to form themselves into a nation for national purposes. They instituted for such purposes, a national government, complete in all its parts, with powers legislative, executive, and judiciary; and all the powers extended over the whole nation. Is it congruous that with regard to such purposes, any man or body of men, any person, natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national Government? Would not such claims be repugnant to our very existence as a nation?" Although the conclusion of the Court, that the State of Georgia is amenable to the jurisdiction of the Supreme Court, was cut in upon by the Eleventh Amendment so as to deny the right of the citizen of another State to sue a State in the Courts of the United States, yet the principle so cogently stated that the national government has power to protect the rights of citizens of the other States is as true now as before. The amendment was anticipated by Mr. Randolph, the Attorney-General of the United States, in his argu ment:1 1 "The common law has established a principle, that no prohibitory act shall be without its vindicatory quality; or in other words, that the infraction of a prohibitory law, although an express penalty be omitted, is still punishable. Government itself would be useless, if a pleasure to obey or transgress should be substituted in the place of a sanction to its laws. This was a just cause of complaint against the deceased confederation. In our solicitude for a remedy, we meet with no difficulty, where the conduct of a State can be animadverted on through the medium of an individual. For instance without suing a State, a person arrested may be liberated upon habeas corpus; a person attainted and a convict under an ex post facto law may be saved; those who offend against improper treaties may be protected, or who execute them, may be punished; the actors under letters of marque and reprisal may be mulcted; coinage, bills of credit, unwarranted tenders, and the impairing of contracts between individuals may be annihilated. Unfledged as America was in the vices of old governments, she had some incident to her own new situation; individuals had been victims of the oppression of States. "The Confederation provided a government of supplication. The Constitution produced a new order of things. It derives its origin immediately from the people; and the people, individually, are, under certain limitations, subject to the legislative, executive, and judiciary, thereby 1 2 Dallas, 422. |