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might in accordance with the charter of the company | 272, a defense to a bond of this nature was that be made against him. By a provision in the charter such instrument had been obtained by undue conthose insuring in the company become members cealment on the part of the obligees, such concealthereof during the time they should remain insured ment consisting in the non-disclosure that the and no longer. By a clause in the policy issued to agent, for whose conduct the bond was given, was defendant, it was provided that whenever an assess at the time in arrears in his accounts and insolvent. ment made on a premium note should not be paid The House of Lords sustained the defense. Sce within thirty days from the time the same is de- also Railton v. Mathews, 10 Cl. & Fin. 934; Phillips manded by said company, then this policy shall be v. Foxall, L. R., 7 Q. B. 666; Franklin Bank v. void. But the said company shall have a right to Cooper, 36 Me. 179; Atlas Bank v. Brownell, 11 Am. collect the amount due on said assessment.” The Rep. 231. company made an assessment on defendant's note
The Supreme Court of Mississippi, in the case of which was not paid within thirty days after demand. Thereafter, but within the five years for which the
New Orleans, S. L. & Ch. R. R. Co. v. Burke, decided
at the last term, pass upon the interesting question policy was to run, another assessment was made. The question was, whether this second assessment |
as to the duty a carrier of passengers to protect a was valid, it being claimed by defendant that the
passenger from assault by other passengers. In this non-payment of the first assessment rendered the
case plaintiff, who was riding on one of defendant's
trains, having been rudely used by some passengers, policy void and that no further assessment could be
who deprived him of his hat, sought the conductor made. The court held, however, that the failure to pay did not render the policy ipso facto void, but
for assistance. The conductor went with plaintiff merely gave the company an option to declare such
to where the disorderly persons were, and endeav
ored to obtain a restitution of the hat. Plaintiff policy canceled; but it might waive that right and continue to assess the premium note. The decision
was thereupon immediately attacked, when the conis in accordance with Neely v. Onondaga Co. Mut. Ins.
ductor deserted him, and he was obliged to resist Co., 7 Hill, 50, where a policy having become void by
alone, and in doing so was shot by one of his assail
ants. The conductor then interfered and got the reason of the alienation of the insured property an assessment was held valid though for losses
plaintiff to a place of safety, though he allowed
the assailants to remain on the train. occurring after the alienation, and it was also held
The court that the company by making and collecting it, with
held that the defendant was liable for the injury knowledge of the alienation, did not revive the
done plaintiff, and that the action of the conductor, policy so as to render this company liable for the loss
coupled with the fact that the assailants, who were of the insured property. See also Flanders on Ins.
employees of the defendant, though not at the time 28. 147; Atlantic Ins. Co. v. Goodsell, 35 N. H. 328;
in the performance of their duties as such, were not Hyatt v. Wait, 37 Barb. 29; Finley v. Lycoming Co.
thereafter discharged, rendered it a case for exemMut. Ins. Co., 6 Casey, 311; Hummell & Co.'s Appeal,
plary damages. The case is similar to that of Rail28 P. F. Smith, 320.
way Co. v. Ilinds, 53 Penn. St. 512, where a passen
ger's arm was broken in a fight between some disIn the case of Sooy ads. State, 10 Vroom, 135, the orderly persons in the car, and the company was duty of an employer taking a bond for the good held liable. In that case the conductor went on conduct of an employee to communicate to the collecting fares, and did not stop the train and expel surety such knowledge as he has in relation to the the rioters, or demonstrate by an earnest effort that character and previous conduct of the employee, is it was impossible to do so. In Flint v. Transportasserted. The action was by the State of New ation Co., 34 Conn. 554, a passenger was injured by Jersey against the sureties upon the bond of the the discharge of a gun dropped by some soldiers State treasurer for moneys alleged to be embezzled engaged in a scuffle, and a verdict for damages was by him. A defense was that Sooy, who had previ- given, the court holding that passenger carriers are ously been in charge of the moneys of the State, bound to exercise the utmost vigilance and care to had, before the execution of the bond, embezzled guard those whom they transport from violence from various sums, that these embezzlements were known whatever source arising. The same doctrine was to the State, but were not communicated to the approved in Goddard v. G. Trunk Ry. Co., 57 Me. sureties. The court, on demurrer by the State, 202; 2 Am. Rep. 39, though the action there was held the defense sufficient. The duty of the obligee for injury inflicted by a servant of the company. both in morals and law to make a full, fair and The subject is fully considered in Putnam v. Broadhonest communication of every circumstance calcu way and Seventh Av. R. R. Co., 14 Am. Rep. 190. lated to influence the discretion of the surety in See also Pittsburgh & Con. R. R. Co. v. Pillow (76 entering into the obligation, has always been main- | Penn. St. 510), 18 id. 424, and note, p. 427; Sherley tained. See Owen v. Homan, 3 Mac. & G. 378. In v. Billings, 8 id. 451; Bryant v. Rich, id. 311; HanSmith v. Governor, etc., of Bank of Scotland, 1 Dow, I sen v. En. & N. A. R. R. Co., 16 id. 404.
spective spheres. The former, in its appropriate
sphere, is supreme; but the States within the limits BY SAMUEL T. SPEAR, D. D.
of their powers not granted, or, in the language of A STATE, in the sense in which this term is used the Tenth Amendment, reserved,' are as independA in the Federal Constitution, is not only a po- ent of the General Government, as that Government, litical community having a defined territorial bound- within its sphere, is independent of the States." ary, and living under an organized government It necessarily follows that the obligations, and sanctioned by a written, local constitution, and re also the privileges and immunities of State citizenpublican in its form, but also a member of the ship, except as modified by the Constitution of the Union, or the greater political community desig- / United States, have their basis exclusively in State nated as the United States. The Constitution takes authority. They arise and exist under State constino cognizance of a State, except in this relation. tutions and laws, and, with the above qualification, See llepburn & Dundas v. Ellzey, 2 Cranch, 445; must be interpreted by them. Each State deterCherokee Nation v. Georgia, 5 Pet. 1; Scott v. Jones, mines for itself the meaning of the word “ citizen " 5 How. 343, and Texas v. White, 7 Wall. 700. | in respect to its own citizen members; and so long
Political membership, in such a State, is the es as it does not come into conflict with the Federal sential idea of State citizenship; and as to the per Constitution, its determination is reviewable by no sons entitled thereto, and subject to the responsibili- | power on earth. ties thereof, the Fourteenth Amendment declares The phrase “privileges and immunities,” used in that “all persons born or naturalized in the United application to State citizenship, occurs in that proStates, and subject to the jurisdiction thereof, are vision of the Constitution which declares that "the citizens * * * * of the State wherein they citizens of each State shall be entitled to all privilreside." Simple residence in a State secures, under eges and immunities of citizens in the several this provision, to such persons the status of State States." The meaning of this language will be best citizenship.
ascertained by the comment of text-writers, and As to the position and powers of a State within especially the judicial tribunals of the country. the limits of its own territory, and over its own citi Judge Jameson, in his work on The Constitutional zens, a fundamental principle of the Constitution is, Convention, p. 338, remarks that the words “in the that "the powers not delegated to the United several States” evidently qualify the word “entiStates by the Constitution, nor prohibited by it to tled," rather than the nearer word “citizens.” The the States, are reserved to the States respectively or sentence, according to this suggestion, would read to the people.” Within the limits of these powers thus: “The citizens of each State shall be entitled, the States are as independent of the General Gov- |
in the several States, to all privileges and immuniernment, and of each other, as they could be if they ties of citizens.” The object, certainly, was not to were foreign nations. In Buckner v. Finley, 2 Pet. give to the constitution and laws of any State an 586, the Supreme Court of the United States said: extra-territorial operation, and thus enable the citi“For all national purposes embraced by the Federal zen of a State, when going into another, to carry Constitution, the States and the citizens thereof are with him into the latter State the constitution and one, united under the same sovereign authority and laws of the former as the rule of his rights therein. governed by the same laws. In all other respects The “privileges and immunities," as guaranteed to the States are necessarily foreign to, and independ him in the latter State in virtue of his citizenship ent of, each other.” The doctrine of the same court in the former, are those and those only which it acin The City of New York v. Miln, 11 Pet. 102, was, cords to its oron citizens as the consequence of their “that a State has the same undeniable and unlim- citizenship. ited jurisdiction over all persons and things within Daniel Webster, in his argument before the Suits territorial limits as any foreign nation, where l preme Court of the United States in The Bank of that jurisdiction is not surrendered or restrained by the United States v. Primrose, referring to this clause the Constitution of the United States;" that "all of the Constitution, said, that "for the purposes of those powers which relate to merely municipal leg trade, commerce, buying and selling, it is evidently islation, or what may, perhaps, more properly be not in the power of any State to impose any hincalled internal police, are not thus surrendered or drance or embarrassment, or lay any excise, toll, restrained ;” and “that, consequently, in relation duty or exclusion upon citizens of other States, or to these the authority of a State is complete, un- place them, coming there, upon a different footing qualified and exclusive." So, also, in The Collector from her own citizens.” Webster's Works, vol. 6, v. Day, 11 Wall. 113, the same court, in 1870, said: p. 112. Mr. Webster's idea is, that the rule in re“The General Government and the States, though spect to civil rights which the State adopts for her both exist within the same territorial limits, are own citizens, she must apply to the citizens of other separate and distinct sovereignties, acting separately States whenever her jurisdiction acts upon them, and independently of each other within their re- ' and thus secure what he aptly terms a “community of rights and privileges.” Each State makes the tion by the government, the enjoyment of life and rule for its own citizens; yet, having made it, then liberty, with the right to acquire and possess property it must not exclude the citizens of other States from of every kind, and to pursue and obtain happiness its benefits. See Amy V. Smith, 1 Litt. 333 ; and safety, subject, nevertheless, to such restraints Campbell v. Morris, 3 Har. & McHen. 554; Mur- as the government may justly prescribe for the genray v. McCarthy, 3 Munf. 393; Austin v. The State, eral good of the whole. The right of a citizen of 10 Mo. 592; Lemmon v. The People, 20 N. Y. 608; one State to pass through or to reside in any other Abbott v. Bayley, 6 Pick. 92; Crandall v. The State, State, for the purposes of trade, agriculture, profes10 Conn. 340, and Serg. Con. Law, 2d ed., p. 393. sional pursuits, or otherwise, to claim the benefit of
Judge Story, in his Com., sec. 1806, says: “The the writ of habeas corpus, to institute and maintain intention of this clause was to confer on them (the actions of every kind in the courts of a State, to citizens of each State), if one may so say, a general take, hold, and dispose of property, either real or citizenship, and communicate all the privileges and personal, and an exemption from higher taxes and immunities which the citizens of the same State impositions than are paid by other citizens of the would be entitled to under the like circumstances." State, may be mentioned as some of the particular If, for example, the citizens of a State bave the privileges and immunities of citizens which are right to hold property or sue in its courts, then the clearly embraced by the general description of privcitizens of other States must in that State have the ileges deemed to be fundamental, to which may be same right. Justice Curtis, in Scott v. Sandford, added the elective franchise, as regulated by the 19 How. 580, speaks of the privileges and immuni- laws and constitution of the State in which it is to ties referred to in the clause, as being the privil- | be exercised.” eges and immunities of general citizenship.” So, This language was, in The Slaughter-House Cases, also, in the recent case of McCready v. The State of 16 Wall. 36, made the subject of the following comVirginia, Alb. Law Jour., vol. 15, p. 413, Chief- ment by the Supreme Court: “This definition of Justice Waite said that these privileges and immun- | the privileges and immunities of citizens of the ities are those of “general,” but not of "special States is adopted in the main by this court in the citizenship” as united with and affected by domicile recent case of Ward v. The State of Maryland, in a particular State. Hence, any privileges that | while it declines to undertake an authoritative defidepend on domicile in connection with the fact of nition beyond what was necessary to that decision. citizenship in a given State, are not included in the
The description, when taken to include others not privileges that relate simply to “general citizen- named, but which are of the same general character, ship."
embraces nearly every civil right for the establishIn Conner v. Elliott, 18 How. 591, Justice Curtis, ment and protection of which organized government in stating the opinion of the court, said: “It is is instituted. They are, in the language of Judge sufficient for this case to say that, according to the Washington, those rights which are fundamental. express words and clear meaning of this clause, no Throughout this opinion they are spoken of as privileges are secured by it except those which rights belonging to the individual as a citizen of a belong to citizenship. Rights attached by law to State. They are so spoken of in the constitutional contracts, by reason of the place where such con- provision which he was construing. And they have tracts are made or executed, wholly irrespective of always been held to be the class of rights which the citizenship of the parties to those contracts, the State governments were created to establish cannot be deemed 'privileges of a citizen' within and secure." the meaning of the Constitution.”
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. Vir- and protection of these rights from the States to ginia, 8 Wall. 168, from which we quote as follows: the Federal Government,” and “bring within the “It was undoubtedly the object of the clause in power of Congress the entire domain of civil rights question to place the citizens of each State upon heretofore belonging exclusively to the States," the the same footing with citizens of other States, so court in this case, after stating the results of such a far as the advantages resulting from citizenship in theory, especially in changing “the relations of the those States are concerned. It relieves them from State and Federal governments to each other and of the disabilities of alienage in other States; it in- | both these governments to the people,” proceeded bibits discriminating legislation against them by to say: “We are convinced that no such results other States; it gives them the right of free ingress were intended by the Congress which proposed these into other States and egress from them; it insures amendments, nor by the legislatures of the States to them in other States the same freedom possessed which ratified them.” The theory would enable by citizens of those States in the acquisition and Congress to “pass laws in advance, limiting and enjoyment of property and in the pursuit of happi restricting the exercise of legislative power by the ness; and it secures to them in other States the States in their most ordinary and usual functions, equal protection of the laws. * * * But the as in its judgment it may think proper, on all such privileges and immunities secured to citizens of each subjects.” It would “fetter and degrade the State State in the several States, by the provision in governments by subjecting them to the control of question, are those privileges and immunities which Congress in the exercise of powers heretofore uniare common to citizens in the latter States, under versally conceded to them, of the most ordinary and their constitutions and laws, by virtue of their fundamental character." It would constitute the being citizens. Special privileges enjoyed by citi- Supreme Court “a perpetual censor upon all the zens in their own States are not secured in other legislation of the States on the civil rights of their States by this provision. It was not intended by own citizens, with authority to nullify such as it the provision to give to the laws of one State any did not approve as consistent with those rights, as operation in other States."
they existed at the time of the adoption of this Referring, in the Slaughter-House Cases, supra, to amendment.” Such is the picture of the consethe language used in this case, tbe Supreme Court quences of a theory which the court expressly said: “The constitutional provision there alluded rejected. to did not create those rights which it called privi- ! We are now prepared to state as follows, the leges and immunities of citizens of the States. It meaning of the constitutional clause relating to the threw around them in that clause no security for the privileges and immunities of citizens in the several citizen of the State in which they were claimed or States: 1. The clause applies simply to “the citiexercised, nor did it profess to control the power of zens of each State,” considered as the persons to the State governments over the rights of their own whom the guaranty is given. 2. The guaranty opercitizens. Its sole purpose was to declare to the ates for their protection in other States, and not in several States that, whatever these rights are, as the State of their residence. 3. The rights proyou grant or establish them to your own citizens, or tected by it are the general and fundamental rights as you limit or qualify, or impose restraints upon that belong to State citizenship as such, and not any their exercise, the same, neither more nor less, shall special rights or privileges that may be founded on be the measure of the rights of citizens of other domicile in a particular State. 4. The measure of States within your jurisdiction. It would be the the guaranty in each State, with reference to the vainest show of learning to attempt to prove by citizens of other States, is the rule which the State citations of authority that, up to the adoption of the applies to its own citizens in virtue of their citizenrecent amendments, no claim or pretense was set up ship. 5. The limits within which this rule acts are that those rights depended on the Federal Govern- | the powers reserved to the States by not being ment for their existence or protection, beyond the granted to the United States, and not denied to the very few express limitations which the Federal Con States. stitution imposed upon the States, such, for in These “privileges and immunities,” except as stance, as the prohibition against ex post facto laws, State power may be limited or qualified by the bills of attainder and laws impairing the obligation Federal Constitution, must, in each State, look exof contracts. But, with the exception of these and clusively to the State government for their definia few other restrictions, the entire domain of the tion and protection. Their similarity in the several privileges and immunities of citizens of the States, States is due to the fact that these States concur in as above defined, lay within the constitutional recognizing and establishing them, and not to any power of the States, and without that of the power which one State has within the territorial Federal Government.”
limits of another. They were distinctly referred to As to the question whether the Fourteenth in the Articles of Confederation, and hence preceded Amendment was intended to trausfer the security 'the adoption of the Constitution. The phrase
“privileges and immunities” was borrowed from While it is true that the Constitution places the these Articles, and passed into the Constitution with States under certain restraints with reference to a definite and well understood meaning. That their own citizens, and that the recent amendments meaning Justice Washington explained at an early have added to these restraints, it is equally true that day, and ever since his exposition has generally been the States, except as thus restrained, are independaccepted by the courts.
ent sovereignties within their respective territorial This clause, however, by no means exhausts the limits. It belongs to them, and not to Congress, to provisions of the Constitution in respect to the define the “privileges and immunities” of their rights of State citizens. There are other provisions own citizens, and enact laws to secure them. The relating to them, either actually bestowing rights power of Congress, whether express or implied, to or protecting them. We present the following enu- enforce the restraints imposed on State power, is meration of the rights which these other provisions not a power to exercise State power, or to do what either establish or guarantee: 1. The right of the in its judgment the States ought but fail to do. It citizen electors in each State, qualified by its con- is not a power to establish a municipal code in the stitution and laws, to vote for members of the most States, to be operative on prirate individuals, to be numerous branch of its legislature, to vote also for the basis of original proceedings in the Federal Representatives in Congress, subject to such rules courts, to take the place of State laws, or supersede as the legislature may prescribe in respect to “the those laws. State powers do not vest themselves in times, places and manner of holding” such elec Congress when they fail to be properly exercised by tions, or such as Congress may provide by law. 2. the States. The right to seek judicial relief in the courts of the The Constitution, for example, provides that no United States in controversies between citizens of State “shall deprive any person of life, liberty or different States, or between citizens of the same property without due process of law," and authorState claiming lands under grants of different izes Congress to enforce this restraint by appropriate States, or between citizens of a State and foreign legislation. Here are three fundamental rights of States, citizens or subjects. 3. The right, under State citizenship protected as against any abuses by the provisions of law, to remove causes from State State authority. Does this give to Congress the to Federal courts, in cases where the jurisdiction of power to establish a penal code for the trial and the latter depends on the citizenship in different punishment of the offenses which the citizens of a States of the parties thereto. 4. The right, by writ | State may commit against each other in respect to of error, to appeal to the Supreme Court of the these rights? We cannot better answer this quesUnited States, where the judgment has been ren- tion than by quoting the language of Justice Braddered in the highest State court in which the suit | ley in the Grant Parish case, who, in reference to could be tried, and where the nature of the matter this provision of the Constitution, said: “It is a involved brought into question the Constitution, constitutional security against arbitrary and unjust laws or treaties of the United States, or any rights legislation by which a man may be proceeded against secured thereby. 5. The right to absolute immu- in a summary manner, and arbitrarily arrested and nity as against any bill of attainder, ex post facto condemned, without the benefit of those time-honlaw, or law impairing the obligation of contracts ored forms of proceeding in open court and trial enacted by State authority. 6. The right to free- by jury, which is the clear right of every freeman dom as opposed to slavery established by State both in the parent country and in this. It is a authority, and as opposed to involuntary servitude, guaranty of protection against the acts of the State except as a punishment for crime whereof the party government itself. It is a guaranty against the shall have been duly convicted. 7. The right to exertion of arbitrary and tyrannical power on the exemption from any deprivation of life, liberty or part of the government and legislature of the State, property, without due process of law. 8. The right not a guaranty against the commission of individual to the equal protection of the laws. 9. The right offenses; and the power of Congress, whether exnot to be excluded by any State from the exercise press or implied, to legislate for the enforcement of of the elective franchise “ on account of race, color, such a guaranty, does not extend to the passage of or previous condition of servitude.” 10. The right, laws for the suppression of ordinary crime within in each State, to a republican form of government. the States. This would be to clothe Congress with
These rights the Constitution of the United States the power to pass laws for the general preservation secures to every State citizen in the State of his of social order in every State. The enforcement of residence. Some of them have their basis exclu- the guaranty does not require or authorize Congress sively in this Constitution, and others are simply to perform the duty which the guaranty itself supprotected by it as against any abuses by State poses it to be the duty of the State to perform, power. No State can abrogate or invade these and which it requires the State to perform. * * * rights, without coming into conflict with the funda- | No State may pass a law in pairing the obligation of mental law of the land.
contracts. Does this authorize Congress to pass