We have not deemed it important, in considering the subject embraced within this chapter, to discuss the various questions which might be suggested in regard to the validity of the proceedings by which it is assumed in any case that a municipal corporation has become constituted. These questions are generally questions between the corporators and the State, with which private individuals are supposed to have no concern. In proceedings where the question whether a corporation exists or not arises recent cases in which the liability of municipal corporations for neglect of public duties has been considered: For nuisance in highway, sewer, &c.: Todd v. Troy, 61 N. Y. 506; Masterton v. Mt. Vernon, 58 N. Y. 391; Merrifield v. Worcester, 110 Mass. 216; s. c. 14 Am. Rep. 592; Woodward v. Worcester, 121 Mass. 245; Chicago v. Brophy, 79 Ill. 277; Chicago v. O'Brennan, 65 Ill. 160; Wilkins v. Rutland, 17 Atl. Rep. 785 (Vt.); Kibele v. Philadelphia, 105 Pa. St. 41; Duffy v. Dubuque, 63 Iowa, 171; Kunz v. Troy, 104 N. Y. 344; Langan v. Atchison, 35 Kan. 318. See Stock v. Boston, 149 Mass. 410; Ray v. St. Paul, 40 Minn. 458. For invasion of private right or property: Sheldon v. Kalamazoo, 24 Mich. 383; Babcock v. Buffalo, 56 N. Y. 268; Lee v. Sandy Hill, 40 N. Y. 442; Phinizy v. Augusta, 47 Ga. 260; Helena v. Thompson, 29 Ark. 569; Kobs v. Minneapolis, 22 Minn. 159. For negligent construction of sewers: Nims v. Troy, 59 N. Y. 500; Van Pelt v. Davenport, 42 Iowa, 308; Rowe v. Portsmouth, 56 N. H. 291; Ashley v. Port Huron, 35 Mich. 296; s. c. 20 Am. Rep. 628, note; Noonan v. Albany, 79 N. Y. 470; s. c. 35 Am. Rep. 540; Chicago v. Hesing, 83 Ill. 204; s. c. 25 Am. Rep. 378; Post v. Boston, 141 Mass. 189. For negligence in construction and improvement of streets: Pekin v. Winkel, 77 Ill. 56; Bloomington v. Brokaw, 77 Ill. 194; Pekin v. Brereton, 67 Ill. 477; Chicago v. Langlass, 66 Ill. 361; Mead v. Derby, 40 Conn. 205; Milledgeville v. Cooley, 55 Ga. 17; Prentiss v. Boston, 112 Mass. 43; Saltmarsh v. Bow, 56 N. H. 428; Sewall v. St. Paul, 20 Minn. 511; Kentworthy v. Ironton, 41 Wis. 647; Hoyt v. Hudson, 41 Wis. 105; Talbot v. Taunton, 140 Mass. 552; Gray v. Danbury, 54 Conn. 574. For defective sidewalk Springfield v. Doyle, 76 Ill. 202; Champaign v. Pattison, 50 Ill. 62; Town send v. Des Moines, 42 Iowa, 657; Rice v. Des Moines, 40 Iowa, 638; McAuley v. Boston, 113 Mass. 508; Harriman v. Boston, 114 Mass. 241; Morse v. Boston, 109 Mass. 446; Hanscom v. Boston, 141 Mass. 242; McLaughlin v. Corry, 77 Pa. St. 109; Boucher v. New Haven, 40 Conn. 456; Congdon v. Norwich, 37 Conn. 414; Stewart v. Ripon, 38 Wis. 584; Chapman v. Macon, 55 Ga. 566; Moore v. Minneapolis, 19 Minn. 300; Furnell v. St. Paul, 20 Minn. 117; Omaha v. Olmstead, 5 Neb. 446; Higert v. Greencastle, 43 Ind. 574; Providence v. Clapp, 17 How. 161; Smith v. Leavenworth, 15 Kan. 81; Atchison v. King, 9 Kan. 550; Gillison v. Charleston, 16 W. Va. 282; s. c. 37 Am. Rep. 763; Cromarty v. Boston, 127 Mass. 329; s. c. 34 Am. Rep. 381; Sherwood v. Dist. Columbia, 3 Mackey, 276; Saulsbury v. Ithaca, 94 N. Y. 27; Pomfrey v. Saratoga, 104 N. Y. 459; Cloughessey v. Waterbury, 51 Conn. 405. For injury by limb falling from tree overhanging street: Jones v. New Haven, 34 Conn. 1. See Gubasko v. New York, 1 N. Y. Supp. 215. For injury by fall of an awning over sidewalk: Bohen v. Waseca, 32 Minn. 176; Larson v. Grand Forks, 3 Dak. 307. For failure to keep street in repair: Gorham v. Cooperstown, 59 N. Y. 660; Hines v. Lockport, 50 N. Y. 236; Bell v. West Point, 51 Miss. 262; Chicago v. McGiven, 78 Ill. 347; Alton v. Hope, 68 Ill. 167; Centralia v. Scott, 59 Ill. 129; Winbigler v. Los Angeles, 45 Cal. 36; Market v. St. Louis, 56 Mo. 189; Willey v. Belfast, 61 Me. 569; Bill v. Norwich, 39 Conn. 222; Lindholm v. St. Paul, 19 Minn. 245; Shartle v. Minneapolis, 17 Minn. 308; O'Leary v. Mankato, 21 Minn. 65; Griffin v. Williamstown, 6 W. Va. 812. For failure to keep sewers in repair: Munn r. Pittsburg, 40 Pa. St. 364; Jersey City v. Kiernan, 50 N. J. L. 246. collaterally, the courts will not permit its corporate character to be questioned, if it appear to be acting under color of law, and recognized by the State as such. Such a question should be raised by the State itself, by quo warranto or other direct proceeding.1 And the rule, we apprehend, would be no different, if the constitution itself prescribed the manner of incorporation. Even in such a case, proof that the corporation was acting as such, under legislative action, would be sufficient evidence of right, except as against the State; and private parties could not enter upon any question of regularity. And the State itself may justly be precluded, on the principle of estoppel, from raising such an objection, where there has been long acquiescence and recognition.2 1 State v. Carr, 5 N. H. 367; President, &c. of Mendota v. Thompson, 20 Ill. 197; Hamilton v. President, &c. of Carthage, 24 Ill. 22. These were prosecutions by municipal corporations for recovery of penalties imposed by by-laws, and where the plea of nul tiel corporation was interposed and overruled. See also Kayser Bremen, 16 Mo. 88; Kettering v. Jacksonville, 50 Ill. 39; Bird v. Perkins, 33 Mich. 28; Worley v. Harris, 82 Ind. 493. 2 In People v. Maynard, 15 Mich. 463, 470, where the invalidity of an act organizing a county, passed several years before, was suggested on constitutional grounds, Campbell, J., says; "If this question had been raised immediately, we are not prepared to say that it would have been altogether free from difficulty. But inasmuch as the arrangement there indicated had been acted upon for ten years before the recent legislation, and had been recognized as valid by all parties interested, it cannot now be disturbed. Even in private associations the acts of parties interested may often estop them from relying on legal objections, which might have availed them if not waived. But in public affairs, where the people have organized themselves under color of law into the ordinary municipal bodies, and have gone on year after year raising taxes, making improvements, and exercising their usual franchises, their rights are properly regarded as depending quite as much on the acquiescence as on the regularity of their origin, and no ex post facto inquiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such general acquiescence, the corporate standing of the community can no longer be open to question. See Rumsey v. People, 19 N. Y. 41; and Lanning v. Carpenter, 20 N. Y. 474, where the effect of the invalidity of an original county organization is very well considered in its public and private bearings. There have been direct legislative recognitions of the new division on several occasions. The exercise of jurisdiction being notorious and open in all such cases, the State as well as county and town taxes being all levied under it, there is no principle which could justify any court, at this late day, in going back to inquire into the regularity of the law of 1857." A similar doctrine has been applied in support of the official character of persons who, without authority of law, have been named for municipal officers by State legislation, and whose action in such offices has been acquiesced in by the citizens or authori ties of the municipality. See People v. Salomon, 54 Ill 51; People v. Lothrop, 24 Mich. 235. Compare Kimball v. Alcorn, 45 Miss. 151. But such acquiescence could not make them local officers and representatives of the people for new and enlarged powers subsequently attempted to be given by the legislature. People v. Common Council of Detroit, 28 Mich. 228. Nor in respect to powers not purely local. People v. Springwells, 25 Mich. 153. And see People v. Albertson, 55 N. Y. 50. CHAPTER IX. PROTECTION TO PERSON AND PROPERTY UNDER THE CONSTITUTION OF THE UNITED STATES. As the government of the United States was to be one of enumerated powers, it was not deemed important by the framers of the Constitution that a bill of rights should be incorporated among its provisions. If, among the powers conferred, there was none which would authorize or empower the government to deprive the citizen of any of those fundamental rights which it is the object and the duty of government to protect and defend, and to insure which is the sole purpose of bills of rights, it was thought to be at least unimportant to insert negative clauses in that instrument, inhibiting the government from assuming any such powers, since the mere failure to confer them would leave all such powers beyond the sphere of its constitutional authority. And, as Mr. Hamilton argued, it might seem even dangerous to do so. "For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge, with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a right to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights." 1 It was also thought that bills of rights, however important under a monarchical government, were of no moment in a constitution of government framed by the people for themselves, and under which public affairs were to be managed by means of agen 1 Federalist, No. 84. cies selected by the popular choice, and subject to frequent change by popular action. "It has been several times truly remarked, that bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right, assented to by Charles the First, in the beginning of his reign. Such also was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of Parliament, called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and, as they retain everything, they have no need of particular reservations. WE, THE PEOPLE OF THE UNITED STATES, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.' This is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government." 1 Reasoning like this was specious, but it was not satisfactory to many of the leading statesmen of that day, who believed that "the purposes of society do not require a surrender of all our rights to our ordinary governors; that there are certain portions of right not necessary to enable them to carry on an effective government, and which experience has nevertheless proved they will be constantly encroaching on, if submitted to them; that there are also certain fences which experience has proved peculiarly efficacious against wrong, and rarely obstructive of right, which yet the governing powers have ever shown a disposition to weaken and remove."2 And these governing powers will be no less disposed to be aggressive when chosen by majorities than when selected by the accident of birth, or at the will of privileged classes. Indeed if, during the long struggle for constitutional liberty in England, covering the whole of the seventeenth century, importance was justly attached to a distinct declaration and enumeration of individual rights on the part of the government, 1 Federalist, No. 84, by Hamilton. 2 Jefferson's Works, Vol. III. p. 201. when it was still in the power of the governing authorities to infringe upon or to abrogate them at any time, and when, consequently, the declaration could possess only a moral force, a similar declaration would appear to be of even more value in the Constitution of the United States, where it would constitute authoritative law, and be subject to no modification or repeal, except by the people themselves whose rights it was designed to protect, nor even by them except in the manner by the Constitution provided.1 The want of a bill of rights was, therefore, made the ground of a decided, earnest, and formidable opposition to the confirmation of the national Constitution by the people; and its adoption was 1 Mr. Jefferson sums up the objections to a bill of rights in the Constitution of the United States, and answers them as follows: "1. That the rights in question are reserved by the manner in which the federal powers are granted. Answer:, A constitutive act may certainly be so formed as to need no declaration of rights. The act itself has the force of a declaration, as far as it goes; and if it goes to all material points, nothing more is wanting. In the draft of a constitution which I had once a thought of proposing in Virginia, and printed afterwards, I endeavored to reach all the great objects of public liberty, and did not mean to add a declaration of rights. Probably the object was imperfectly executed; but the deficiencies would have been supplied by others in the course of discussion. But in a constitutive act which leaves some precious articles unnoticed, and raises implications against others, a declaration of rights becomes necessary by way of supplement. This is the case of our new federal Constitution. This instrument forms us into one State, as to certain objects, and gives us a legislative and executive body for these objects. should therefore guard us against their abuses of power, within the field submitted to them. 2. A positive declaration of some essential rights could not be obtained in the requisite latitude. Answer: Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can. 3. The limited powers of the federal government, and jealousy of the subordinate governments, afford a security, which exists in no other instance. Answer: The first member of this seems resolvable into the first objec It tion before stated. The jealousy of the subordinate governments is a precious reliance. But observe that those governments are only agents. They must have principles furnished them whereon to found their opposition. The declaration of rights will be the text whereby they will try all the acts of the federal government. In this view it is necessary to the federal government also; as by the same text they may try the opposition of the subordinate governments. 4. Experience proves the inefficacy of a bill of rights. True. But though it is not absolutely efficacious, under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkable difference between the characters of the inconveniences which attend a declaration of rights, and those which attend the want of it. The inconveniences of the declaration are, that it may cramp government in its useful exertions. But the evil of this is short-lived, moderate, and reparable. The inconveniences of the want of a declaration are permanent, afflictive, and irreparable. They are in constant progression from bad to worse. The execu tive, in our governments, is not the sole, it is scarcely the principal, object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for many years. That of the executive will come in its turn; but it will be at a remote period." Letter to Madison, March 15, 1789, Jefferson's Works, Vol. III. p. 4. See also same volume, pp. 13 and 101; Vol. II. pp. 329, 358. |