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set aside the maxim of the common law, that no man should be a judge in his own case, by permitting one to act judicially in a controversy in which he was interested. Mr. Cooley quotes Lord Coke to the effect that "even an Act of Parliament made against natural equity as to make a man judge in his own case is void in itself;" although he does not go so far as to say that such an Act would be held void by an English court at the present day. But he does not see how a State Legislature without express authority from the people could establish such a principle. And he doubts if even the people in their Constitution could now establish so great an anomaly, "since the adoption of the 14th article of the Amendments to the Federal Constitution, which denies to the State the right to deprive any one of life, liberty, or property without due process of law."

The possible scope of this famous amendment is even more strikingly illustrated by its occasional collision with the most characteristic and essential of all State powers-the power of taxation. It is perfectly obvious that a Legislature which could impose taxes according to any rule of discrimination that seemed good to it, or could exact heavier imposts from particular classes or individuals than from the rest of the community, would hold in its hands the means of evading many of the restrictive principles which we have been discussing. Many of the State Constitutions take this matter in hand, and ordain it as a rule for the Legis

lature to follow that all taxation shall be equal and uniform. But it has apparently been decided that the 14th Amendment to the Federal Constitution itself implies this principle. Mr. Cooley, with that large appreciation of the necessary and unalterable limits of legislative authority which characterises his admirable works, pronounces this rule to be no more than an affirmance of a settled principle of constitutional law.

The point was directly involved in a case recently decided in the Federal circuit court (ninth circuit) in California-the case of San Mateo County v. Southern Pacific Railroad Company. There the court had to decide the validity of a provision in the Constitution of California, whereby property under mortgage was, for the purposes of taxation, ordered to be assessed, as to the mortgage, to the mortgagee, the owner being taxed on the value of the property less the amount of the mortgage, whereas the property of railroad companies operating in more than one county was to be assessed to the companies without any deduction for mortgages. The court held that "in the different modes thus prescribed of assessing the value of the property of natural persons and of the property of corporations there was a departure from the rule of equality and uniformity," a violation of the 14th Amendment. That article, it was held, in declaring that no State shall deny to any person within its jurisdiction the equal protection of the law, imposes a limitation upon the exercise of all the powers of the State which can touch the individual or his property, including among these that of taxation. It implies not only that he has a right to resort on the same terms with others

to the courts of the country for the security of his person and property, the prevention and the redress of wrongs, and the enforcement of contracts, but also that he is exempt from any greater burden or charge than such as are equally imposed upon all others in like circumstances. This equal protection forbids unequal exactions of all kinds, including unequal taxation. Moreover, the Constitution and the law of California on this subject made no provision for notice being given to the owner at any stage of the proceedings, and this omission was held to violate the guaranty that no person should be deprived of property without due process of law. The 14th Amendment is not to be limited to legislation affecting the negroes, although that was the subjectmatter out of which it grew. "It requires," says Mr. Justice Field, "that in all State legislation hostile and partial discrimination against any class or person shall be avoided. It stands in the Constitution as a perpetual shield against all unequal and partial legislation by the States, and the injustice which follows from it, whether directed against the most humble or the most powerful, against the despised labourer from China, or the acred master of millions." *

Another example of interference, although on different grounds, with the State's power of taxation is the case of the "State-Tax on Foreign Held Bonds,” + in which the Federal court denied the right of the State to tax the bonds of railroad companies in the hands of non-residents. The power of taxation, it was said by the court, is limited to subjects within the jurisdiction. "The bonds issued by the railroad company in this case are undoubtedly property, but property in the hands of the holders, not property in the obligors. So far as they

* Reported in 13 Federal Reporter, 722.
+ Reported 15 Wallace's Reports, 300.

are held by non-residents, they are property beyond the jurisdiction of the State. The law which requires the treasurer of the company to retain five per cent, of the interest due to the non-resident bondholder is not, therefore, a legitimate exercise of the taxing power. It is

a law which interferes between the company and the bondholder, and, under pretence of levying a tax, commands the company to withhold a portion of the stipulated interest and pay it over to the State. It is a law which thus impairs the obligation of the contract."

The power of Congress "to regulate commerce with foreign nations and between the States" has been noticed as having frequently impinged upon the prerogatives of the State Governments. This power has been held to extend to all forms of intercourse between State and State and between nation and nation, "from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth." So said the Supreme Court in a judgment which denied the power of a State to grant exclusive privileges to telegraph companies within its own borders. Nor is actual legislation by Congress itself necessary to exclude the State Legislature from this domain. When Congress has not legislated, it is held to have adopted the rule of the common law. "Inaction by Congress is equivalent to a declaration that the commerce under its control shall remain free and untramelled. Therefore State legislation which undertakes to prohibit the driving or carrying of Texan, Indian, or Mexican cattle into the State during certain seasons of the year is void, though conflicting with no Act of Congress."* On the other hand,

* Cooley's "Principles of Constitutional Law," p. 72.

the State Government has exclusive possession of the "police power," defined by Cooley as the "authority to establish those rules of good conduct and good neighbourhood which are calculated to prevent a conflict of rights, and to secure to each the uninterrupted enjoyment of his own." It extends to "every person, every public and private right, everything in the nature of property, every relation in the State or society, and in private life." It resides inalienably in the States, and Congress can only see that it is not colourably used to impede or thwart the functions of the National Government. So long as it is properly used, not only the power of Congress to regulate commerce, but all other limiting principles, must be understood as giving way to it.

These examples will be sufficient to give a general idea of the restrictions imposed on the freedom of the State Governments by the express provisions of the Federal Constitution, and the jurisprudence that has grown out of them. The largeness of the superstructure is in striking contrast to the few brief sentences of the written law which are the foundation. Nothing better shows the advance which a century has made in the consolidation of the Central Government than a comparison between the last recorded declarations of the courts and the original framework of the Constitution. In the famous "Legal Tender Case," which was decided not long ago, the opinion of the court is declared by a competent critic to amount to not less than this, that Congress itself is the sole and responsible judge of the validity of all acts that are not expressly prohibited, and this under a Constitution which is supposed to limit its functions to enumerated powers, and reserve

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