an impartial jury. In other words, if the this be not true, what is the meaning of the phrase, "applied to public use" in the provision declaring that particular services shall not be demanded or property taken or applied to public use" without compensation? It was not to guard against its application to private use. It cannot be taken for private use at all. It was to provide against its taking for public use, and it does so in the most express terms possible. To give the phrase any meaning, it must be held to prevent the "application" of individual services or property to the ordinary service of the government, and such unques tionably is its prosecution of criminals,-its administration of law. These, indeed, are the ordinary purposes for which government is organized. They are public, important, necessary purposes, it is true, but at last they are but the usual and ordinary purposes of government. They are not emergent, they are not like, they do not belong to the class relating to war, famine, pestilence, and other extraordinary conditions, when the necessity of the government, like it is said of necessity in the abstract, "knows no law." It is true it is a public purpose to convict a criminal, but it is equally true it is a public purpose to keep a criminal in confinement as a punishment for crime, and to protect the community. If the services of the citizen can be taken to convict, they may be taken to guard and keep, the prisoner; and, The only answer to all this which we find indeed, they may be taken for all public purin view of the majority is that there is no proposes, and the constitutional provision made a vision in the Constitution for impartial officers mockery. The only rule that can save it is and impartial witnesses. Granted: but this is that which holds it applicable to all usual, or not the question for determination. It is dinary government service, and inapplicable freely conceded that there may always exist when those extraordinary emergencies arise partiality in both, as a natural human sentiwhich call for the resistless power of sover ment; but what I am combating is the coneignty over and above any law, when, as institutional right of the legislature to make case of troubles like that of war, all laws are silent. But, again, if there was any controversy as to the services which can be taken because of the use of a qualifying word, there can be none as to the property." The language of the Constitution in reference to it is not "particular" property, but "property," any prop. erty, in reference to the taking of which this inhibition speaks. So the cases on the construction of the word "particular" could not support the opinion, because this law takes not only the services, but the money, of officers and witnesses required to pay their traveling and boarding expenses while attending court and rendering the services taken, whether they be "particular" in the sense used in the major ity opinion or not. If the act, therefore, was not invalid because of taking the services, it would be on account of taking the property, for, to be valid at all, it must be valid against both inhibitions. So far I have been considering this consti tutional provision in disconnection from all others but, if both propositions maintained here are erroneous, and such services and property as are involved in this case might be taken by a proper law under this clause of the Con stitution, or despite its prohibition, if it stood alone, then I insist that they could not be taken by this act, because the taking and application thereof on its terms violate other provisions of the Constitution preserving and guaranteeing to a defendant the right of inviolate trial by them so by terms of law.-to provide for it in the face of the constitutional provision for an impartial trial. Heretofore, when any special reason for partiality appeared in an officer, it was held that the constitutional provisions, followed in legislative acts, were ample to exclude him from acting; and in the Clapp Case [94 Tenn. 186], it was held that where the sheriff was interested in the result (as an accident) the defendant's right to a fair and impartial trial was violated, and there was in the meaning and spirit of these provisions of the Constitution abundant power to declare it, and protect the defendant. Now, when made interested and partial. by terms of law, we hold that defendant is not entitled to protection. The same argument applies in respect to witnesses. I am not contending that the Constitution or any former laws made impartial witnesses. The law never did create or require impartial witnesses. But what I am contending is that the Constitution does not permit, in fairness and justice to the citizen, that the legis lature shall make them partial by terms of law by bidding for the service of conviction. This point has been expressly decided. In the case already referred to, in which it was said, but not decided, that a juror could be compelled to serve without compensation, it was directly held that this could not be done upon conditions which impaired the right to such a trial. I quote from that case: "The Bill of Rights [article 1 of the Constitution] guarantees to all citizens the right of trial by jury, unim in the case upon conviction they shall be specially compensated,-if they convict they shall be paid; if they acquit they shall not only not be paid, but shall be denied expenses. Thus, by a state reward, is leagued against a defendant the men who summon and guard his jury, who provide for its drawing and keep the record of his trial, and who give evidence against him, and whose combined fees and expenses in particular cases may, and often do, amount to hundreds, and sometimes thousands, of dollars. paired and without violation. This manifestly | beyond, to give evidence, and then "by terms means that the right shall never be embarrassed of law" assuring them all that for their services or encumbered with conditions which, in their practical operation, may impair or violate the free and full enjoyment of the right." Neely v. State, 4 Baxt. 184. This was on the point in judgment, and the only one for which the case is authority. Louisville & N. R. Co. v. David son County Ct. 1 Sneed, 639, 695, 62 Am. Dec. 424. The guaranty to the citizen that the right of jury trial shall remain inviolate, and that he has the right to be heard in his case by himself and counsel, before an impartial jury, would be a hollow mockery if it did not, by unavoidable implication, express that he was The state says: "I summon you to trial. I guaranteed such a hearing and such an invio-invite you to a fair and impartial trial. Behold late trial by such a jury as was itself, in its the sheriff who arrested and committed you, formation, in all the elements, and in all the who summoned the witnesses and the panel conditions of its relation to results, fair and from which you are to select your triors,—the impartial; and so I deny that the expression in final judges on whose decision hangs your liberthe Clapp Case (which is but a reiteration of ty or life,-the clerk and the officers of court similar expressions scattered through all pre- and the witnesses. I have promised them all ceding opinions), that a fair and impartial trial payment only on condition that they convict is guaranteed to a defendant under the Con- you. Take your seat. If you think, against the stitution and the laws (meaning laws whose facts of the case, against the usual human bias enactment was compelled by its provisions) is in disfavor of a man or woman charged with a misuse of terms, or expresses more strongly a criminal offense, in the distress ofttimes of than the Constitution itself does this precise poverty and friendlessness, the embarrassment proposition. It is but the formulation, in and odium of imprisonment, you can defeat other words, of exactly the same meaning of this combination of selfish interest and lawthat guaranty of a fair and impartial trial created league against you, proceed to do it, which the Constitution makes; and I most and attest, with constitutional reverence, that, earnestly dissent from any interpretation or considering your desperate chances, you have construction which denies for any purpose of had a fair trial,-as fair, at least, as that of argument or decision that our Constitution running the gauntlet.' does not expressly and without the aid of any "law" or "laws" secure such primal and inestimable right of freemen in their litigations with the state or between each other. The right of a fair and impartial trial, said this court in the Neely Case, already quoted, is one which can "never be embarrassed or encumbered with conditions which, in their practical operation, may impair or violate the free and full enjoyment of the right." In that case and I am pleased to select it because it is the principal Tennessee case on which the majority relies-it was held that the taxation of jury costs against the losing party violated the citi zen's right to a fair and impartial trial. What have we here under terms of the law we are considering? The state arranges the machinery for the trial of a defendant. It gets in readiness to secure him that fair and impartial trial; how? First. By directing the sheriff (who has arrested defendant, and lodged him in prison, or taken his bond for appearance, summoned the witnesses, and thus accumulated costs in the officer's favor) to summon this (to be) impartial jury. Second. By devolving upon the clerk (who has issued the warrant and subpoenas, and entered essential orders relating to the case, whereby costs have accumulated in his favor) the duty of making provision for drawing this impartial jury, and making all the entries in respect thereto down to final judgment. Third. By turning this jury over to an officer to be attended from day to day until verdict, who may also have costs dependent upon the result of the trial. Fourth. By bringing all state witnesses before the court from every quarter of the county in which the trial is had and 5 miles In this connection I note that the majority lays special stress in favor of the fairness of the trial under the present law, because the sheriff's fees for summoning the special panel are not taxed to the defendant, but are paid out of the treasury. It is true that under that act of 1882 such cost is taxed to the county. Whether, under the general provisions of the act under consideration, providing that in the majority of criminal cases no costs shall be taxed to the state or county, and only as a result of verdict of conviction in others, this law of 1882 is repealed, it is not necessary to determine here. Let it be granted that it is not affected by the act we are construing, and that this part of the sheriff's costs is not dependent upon the result of the prosecution; this is the smallest item in his account in such cases. The act of 1882 gives only 5 cents for the summoning of each juror ordered in special venire, while for all other services in the case a much larger charge is provided for, and expressly the compensation for these services is so dependent. If the law would be objectionable with that in it, as seems to be implied from the reference to it in the majority opinion, it is impossible to see why it is not so with the more largely compensated service in the case so dependent. The same suggestion is made as to the officer attending the jury. The majority assumes this is paid as heretofore, because the expenses of "keeping and boarding" juries is provided for in the act. I think it clear that this expression has reference only to payment of jury expenses proper,that is, if they are but supplied with food, their "boarding" expenses are paid; if they are kept and furnished lodging, this expense of "keeping" too is paid; and hence the entire | unobjectionably performed, would be made to expense of "keeping and boarding" is pro- mean that they were objectionable, and should vided for. This is demonstrated by an exam- not be performed if objected to. I cannot, ination of former statutes on subject of jury therefore, understand what meaning under board. this law is to be given to the suggestion in the The first used the term "boarding and find- opinion, that if any officer is disqualified being." Code, § 4032. In the others the word cause of interest, his place may be supplied, as "keeping" is used as the term for "boarding." was indicated in the Clapp Case, 94 Tenn. 186." Mill. & V. Code, § 6454. This was the act of It cannot mean that the allowance of cost in 1859-60, chap. 6, p. 4, § 2, and was amended case of conviction shall disqualify the officer, by an act which in its caption used only the for the whole opinion is devoted to combating term "boarding," and in the body, as express- the idea that there is anything wrong or illegal ing it, the word "keeping.' In the succeed in this. As applied therefore in connection ing section the bill of person authorized to re- with the suggestion of the majority that it ceive it was to be for "boarding.' Shannon's will thus be seen that the act jealously guards Code, § 7607, 7608; Acts Ex. Sess. 1885, p. 76. the prisoner's right to a fair and impartial The officer attending them never was paid unjury," I must confess my inability to see how der any fee-bill head of "keeping" a jury, any exception on the grounds implied can be which he in no sense does, unless he should made, or, if made, how it could be sustained, happen to be an innkeeper,or temporarily act as without abrogation of the law. I therefore such. His compensation has been paid here- most earnestly deny that it can "thus" or tofore for attending and waiting on the jury otherwise "be seen that the act jealously under the fee bill in favor of officers for "attend guard's the prisoner's right to a fair and imance on court" (Code, § 4564, subsec. 26: Shan- partial jury.' non's Code, § 6402, subsec. 25) and "for attending on grand jury and waiting on court" (Code, 4571, 4572, subsec. 9; Shannon's Code, 6409, 6410, subsec. 8). It is under these sections the compensation is provided for, and it is these, and these only, which fix the amount. There is no distinct fee for waiting on a "trial jury" in these terms, but such fee has been paid by accepted construction because in such service the officer is, in a proper sense, in "attendance on" and "waiting on court." These are the only statutes governing this matter. The item of cost is in the regular fee bill. No reason is perceived why this fee paid heretofore by the public is not now eliminated by the general implied repeal of this statute, under which all charges except those provided for in the act are swept away. But, again, it is to be observed that the of ficer may be the sheriff himself, or a deputy, who has other costs in the case, or a constable, who may have earned preliminary costs in it before a justice; and, whether this special cost of attending the jury be dependent upon the result or not, he may be otherwise more interested in other costs; so that to save this point is not to help the opinion. If it needed to be saved, the remaining costs leave a remain ing interest, which would vitiate equally with out this as with it. Here, however, we are told that if any such officer be interested he may be objected to, as was done in the case of Clapp v. State. This will not answer to help the law, for it must be remembered that the sheriff's interest in that case was held to be a special one of fact which the law would not tolerate in an officer who might influence the jury. Under the construction given to the act here involved, it is held that the interest it vests in officers to fees upon conviction will not affect them, or be objectionable by defendant; and this hold ing is a necessity to sustain the law, because these officers are interested in all cases, and if upon defendant's objection they could be disallowed to serve in the cases their whole serv ice would be rejected. The very act, therefore, which is upheld because the services can be The various cost statutes to which the majority refers, which are supposed to help in establishing the validity of this law, I need not discuss. It is sufficient to say that no other statute, valid or invalid, just or unjust, to the citizen, can afford any aid to this act on the constitutional questions involved. Nor need I discuss the state's abstract right to disallow taxation of costs against itself or its counties,. its various divisions of sovereignty, where that power is exercised, or its right of denial of suit to its wronged citizens. It can be readily admitted that the last three propositions, in the abstract, are true, and then as readily proved that it cannot do so if in the same act or by pre existing act, it provides for demanding the particular services or taking the property of the citizen for a public use without compensation, if that compensation depends upon taxation of costs or right of suit against the state, in which event the refusal to allow such taxation and the denial of suit would be admitted by the courts, but the right to demand the service or take the property would be denied; as, for instance, if the state should be without a capitol, and provide by law for suit or condemnation to take from an owner such property as it preferred for that purpose without providing for payment, and in the same act, or by pre-existing act, declare that in such suit no costs should be taxed to the state, and no suit (or remedy) given to the owner for obtaining compensation, the right not to be taxed with costs without its consent would be conceded, the right to deny its liability to suit would be confessed, but the right to take property and force the owner to incur costs in such a suit would be denied, because of the constitutional provision we have been considering. These propositions, I think, are not relevant. I am presenting specific objections to the validity of this law. It is no more valid if other statutes are invalid than invalid if they are valid. Each must stand on its constitutional merit. Some of them perhaps have as little as this, but want of time and space to me, even more than irrelevancy in them, forbid extending this opinion for their analysis and discussion.. gates, cross the same ferries, or come on the same train, and alike leave their plows standing in the field. The witnesses in Henry's case are paid. The witnesses in James's case are not. As the witnesses ride home, discussing the situation, what argument can the witnesses in Henry's case, with the money in their who returned empty-handed, which will satisfy them of the justice of the discrimination? Again, why should the witnesses in a manslaughter case be paid if the case proceeds to a verdict, and not be paid in a case of assault with intent to commit murder, which has proceeded to a verdict? Why, in cases of rape, but not in cases of attempt to rape? Or in bigamy, but not in attempt to poison? Why in embezzlement, but not in fraudulent breaches of trust? Why should they not be paid when the case proceeds to a verdict in railroad wrecking, official bribetaking, corrupting jurors, suborning witnesses, horse stealing, and masked marauding? Witnesses living more than 5 miles distant, going to another county, are paid, while those living within 5 miles are not. Conceded, for argument, that the discrimination as to mileage can be defended, that as to witnesses' fees cannot. A day at court is a day of time, whether the witness came 5 miles or ten. The truth is that, whether the nature of the crime, or its effects upon the public, or the degree of punishment, be considered, the classification is arbitrary, indefensible, and absurd. But, if it be possible, a more indefensible classification yet remains to be noticed. The witnesses for the state in eight named felonies are to be paid when the case named proceeds to a verdict; but in fifty other felonies, and many misdemeanors, they cannot be paid, even though the case has proceeded to a verdict, unless it be one of conviction. The inconvenience to the witness, and the loss of time, and the fares and tolls are not determined by the legal nature of the case, but by the circumstances of the witness. They are the same to him in all cases. Moreover, he cannot absolutely control, however much, under this act, he may influence, the verdict. Consequently, a statute which discriminates between witnesses, in respect to their compensation in criminal cases, according to the jury's verdict, is cruel, arbitrary, and indefensible. It is indefensible and arbitrary because it unreasonably discriminates between witnesses; it is cruel because it stabs the accused." I need add nothing, if, indeed, anything can be added, to this view of the act on this question. What is presented in it is, to my mind, absolutely conclusive. I wish to present one more constitutional objection to this act, and that is, that it is class legislation arbitrarily capricious, and therefore void. Article 1, $ 8, of the Constitution de clares that "no man shall be taken or imprisoned, or disseised of his freehold. liberties, or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, lib-pockets, make to the witnesses in James's case, erty, or property, but by the judgment of his peers, or the law of the land." Under this provision it has been held that an act is not the "law of the land" when the classification upon which it is based is unnatural, arbitrary, and capricious. Stratton Claimants v. Morris Claimants, 89 Tenn. 541, 12 L. R. A. 70. Whether the statute be public or private, general or special in form, if it attempts to create distinctions and classifications between the citizens of this state, the basis of such classifications must be natural and not arbitrary. If the classification under this section is made for the purpose of subjecting a class to the burden of some special disability, duty, or obligation, there must be some good and valid reason why that particular class should alone be subject to the burden. Ibid. Distinctions in these respects must not only be natural, and not arbitrary, but must rest upon some reason upon which they can be defended, -some sound legal reason. Cooley, Const. Lim. 390; Dug ger v. Mechanics' & T. Ins. Co. 95 Tenn. 258, 28 L. R. A. 796. Elsewhere I have shown that the general object of the bill was to take the principal expense and burden of criminal prosecutions off of the whole body of the state, and devolve it upon a few; and in this sense the law in its general scope and purpose is obnoxious to this provision of the Constitution. But, analyzing it more particularly, its special classifications are unnatural, arbitrarily, capricious, and in my judgment absolutely indefensible. I quote here the admirable analysis of defendant's counsel on this point: "When the act passed, February 3, 1897, the law was, and long had been, that witnesses for the state should be paid in all cases, regardless of the disposition which might be made of them. Such being the law, this act, discriminating among persons who belong to the class, called witnesses as follows, was passed: (1) The witnesses in eight named kinds of felonies are paid when the case pro ceeds to a verdict, and consequently the witnesses in such cases which do not proceed to a verdict are not paid. It often happens that after repeated continuances, mistrials, and reversals a felony case (of one of these eight kinds) is nolled, or the case terminated by the death of the accused. The witnesses have attended alike in all cases. In no case do they control it. In one case there was a verdict. In the other the case was nolled. In the third the defendant died. Can anyone give even the pretense of a reason why the witnesses should be paid in one case, and not in the others? An apt illustration exists in the following case: A murder is committed in a remote | district. Henry and James are suspected and indicted. They sever. After repeated continuances and mistrials, Henry is acquitted. After repeated continuances and mistrials, James dies. The witnesses are from the same neighborhood, pass through the same toll Though I have extended this opinion to great length, and am conscious that I will be less heard for much speaking, I am also aware, and suggest in deprecation of adverse judgment on this account, that much has been omitted which could have been, and perhaps ought to have been, said, and particularly as the clear, able, and thoroughly matured opinion of the majority upholding the validity of this act presents all that can be said in its support, fully sug gesting the objections to it and evading none. The question, too, is a great one, and worthy of the profoundest consideration. These, and my earnest conviction that the law is in viola tion of some of the dearest rights which citi-, husband, who sue in their own right, and for zens of Tennessee have been permitted to enjoy for a hundred years, are my excuse-if not justification-for the length and the earnestness of this dissent. But I am aware that strength of conviction is often quite inconclusive of accuracy of judgment, and that this is more often true when the conviction is not in accord with that of any other member of the court, all of whom are as earnest, as fixed in opinion, and certainly as able to exercise as good, if not better, judgment than my own. With the construction given, however, in favor of the act, I desire to record my dissent as fully and as strongly as I am able to express it. Viola HOCKING et al., Appts., v. VIRGINIA FIRE & MARINE INSUR- (...... Tenn..... the use of J. E. Hancock, to recover on a policy of fire insurance, issued by the defendant company to and upon the application of Viola Hocking upon her dwelling house, the policy reciting on its face that "the loss, if any, was payable to J. E. Hancock, as his interest may appear." The property covered by this policy was destroyed by fire during its life, and the question here presented is, Can a recovery be made for the use and benefit of Hancock, the mortgagee, when the record discloses beyond all doubt that the mortgagor, Viola, burned the house for the purpose of realizing on this insurance policy? It is conceded that Mrs. Hocking, by her conduct, has forfeited all right to recover, but it is insisted that this forfeiture does not affect the mortgagee. While a mortgagee, to whom the loss under an insurance policy issued to the mortgagor, and covering the property of the latter, is made payable "as his interest may appear,' is, in a large sense, an assignee to the extent of his interest (Donaldson v. Sun Mut. Ins. Co. 95 Tenn. 280), yet he does not acquire a full and absolute right, and, in case of loss, recovers in the right of the party assured, and not in his own. In the present case, it was the property of Viola Hocking that was insured and destroyed by fire, and it was she who took out this policy for his benefit. If at any time after its issuance the mortgage in question had been discharged the interest of the mortgagee in this policy would have terminated, and Mrs. Hocking alone would have been entitled to its proceeds. Claiming through the assured, Hancock had no higher or greater right against the defendant company than she; and, as it is clear that she, being the incendiary of this property, would be repelled, he (the mortgagee) must abide the forfeiture which the conduct of his mortgagor has brought about. A large number of cases recognizing this sound principle are to be found in the reports. Among them are: Illinois Mut. F. Ins. Co. v. Fix, 53 Ill. 151, 5 Am. Rep. 38; Hale v. Mechanics' Mut. F. Ins. Co. 6 Gray, 169, 66 Am. Dec. 410; Pupke v. Resolute F. Ins. Co. 17 Wis. 379, 84 Am. Dec. 754; Grosvenor v. AtNOTE. For rights of a mortgagee to the bene-lantic F. Ins. Co. 17 N. Y. 391. fit of insurance taken in the name of the mort A mortgagee of land cannot recover on an insurance policy taken out by the mortgagor payable to the mortgagee "as his interest may appear" where the mortgagor burned the insured building for the purpose of realizing on the policy. (November 3, 1897.) APPEAL by plaintiffs from a decree of the The facts are stated in the opinion. Messrs. Webb & McClung for appellee. Beard, J., delivered the opinion of the court: This bill is filed by Viola Hocking and her! gagor, see Chipman v. Carroll (Kan.) 25 L. R. A. that the forfeiture of all right under the polWe agree with the court of chancery appeals 305, and note; also Palmer Sav. Bank v. Insurance Co. of N. A. (Mass.) 32 L. R. A. 615. As to the effect of a mortgage slip attached to an insurance policy, see Phenix Ins. Co. v. Omaha Loan & T. Co. (Neb.) 25 L. R. A. 679, and note. icy, resulting from the conduct of the assured, the mortgagor, extends to and extinguishes the right of the mortgagee, and the decree of that court is therefore affirmed. ILLINOIS SUPREME COURT. ILLINOIS CENTRAL RAILROAD COM- pliedly received as a passenger before he PANY, Appt., can sustain that relation to a carrier. 2. The holder of a free pass on a railroad who gets on the front platform of a baggage car next the tender when the train is in motion and after it has left the depot, and then tries to open the baggage car door, does not thereby become a passenger so as to make Pennsylvania R. Co. (Pa.) 35 L. R. A. 199; and Western & A. R. Co. v. Voils (Ga.) 35 L. R. A. 655. |