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the language of such provision obviously points to something more to be done, such as legislative action, and does not within itself contain a governing or controlling rule for its enforcement, it is not self-executing, although it may be self-execu ting to a certain extent, even though it is expressly required that the legislature shall provide a penalty for a specified prohibited act.97

§ 226. When Constitutional Provision Is Self-Executing— Instances. A constitutional provision is self-executing: 98 where it clearly fixes the individual responsibility of a bank officer or director, who assents to a receipt of deposits after knowledge of the bank's insolvent condition, and there is no necessity for legislation, especially where a sufficient remedy by civil action is provided under the general laws; 99 where it specifies the extent of the individual liability of stockholders of a banking corporation;1 where the requirement is that certain books of a corporation shall be kept for public inspection, and that corporations shall keep an office in the State when they are engaged in business therein; 2 where a prohibition therein as to foreign corporations doing business in a State needs no legislative action to carry it into effect;3 where certain requirements as to taxation are mandatory; where it

means of which those principles may be given the force of law." Cooley's Const. Lim. (7th ed.) p. 121.

96 Groves v. Slaughter, 15 Pet. (40 U. S.) 449, 10 L. ed. 800; Mercur Gold Min. & Mill. Co. v. Spry, 16 Utah, 222, 52 Pac. 382.

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3 American Union Teleg. Co. v. 97 Quinlan v. Smye, 21 Tex. Civ. Western Union Teleg. Co., 67 Ala. 26, App. 156, 50 S. W. 1068.

98 Day v. Day (Idaho), 86 Pac. 531; Merchants' Police & Dist. Teleg. Co. v. Citizens' Telephone Co., 29 Ky. L. Rep. 512; Spratt v. Helena Power & Trans. Co. (Mont., 1908), 94 Pac. 631. Central Iron Works v. Pennsylvania R. Co., 2 Dauph. Co. Rep. (Pa.) 308.

42 Am. Rep. 90.

'Railroad & Teleph. Cos. V. Board of Equalization (C. C.), 85 Fed. 302, citing Hyatt v. Allen, 54 Cal. 353; St. Joseph Board of Pub. Schools, 62 Mo. 444; Reelfoot Lake Levee Dist. v. Dawson, 97 Tenn. 160, 34 L. R. A. 725.

prohibits taking or damaging private property for public use without just compensation; where discrimination as to receiving, handling and charging for freight, and as to the manner of payment is prohibited under penalty; where it requires that a city shall receive bids before granting a franchise for the use of its streets; and where street railway companies are required to pave their right of way, and in case of refusal the cost thereof is to be paid by levy of an assessment.3

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§ 227. When Constitutional Provision Is Not Self-Executing-Instances. A provision of the state constitution which declares the right of any corporation or individual to construct and maintain lines of telegraph and telephone upon the streets and highways within the State, that such lines shall be common carriers, and that the right of eminent domain is extended to them, is not self-operative, but by its own terms imposes the duty upon the legislature of providing by general law reasonable regulations to give effect to the section, and hence confers no power to use the streets and highways other than as the legislature may provide. Nor is a constitutional provision self-executing, where its language is that laws shall be made to provide for the enforcement thereof; 10 nor where the legislature is directed to make provision for a specific purpose, or to carry out a designated matter; 11 nor where a provision amending a constitution requires that certain laws shall be enacted by the legislature and also a general election

Searle v. Lead, 10 S. Dak. 312, 39 L. R. A. 345, 73 N. W. 101.

Louisville & Nashville R. Co. v. Commonwealth (Ky.), 46 S. W. 702, modified, 105 Ky. 179, 20 Ky. L. Rep. 1099, 48 S. W. 416, 43 L. R. A. 550.

Regulation of rates, see City of Tampa v. Tampa Waterworks Co. (Fla., 1903), 34 So. 631.

'Merchants' Police & Dist. Teleg. Co. v. Citizens' Teleph. Co., 29 Ky. L. Rep. 512, 93 S. W. 642.

8 Lincoln St. Ry. Co. v. City of Lincoln, 61 Neb. 109, 84 N. W. 802.

'State ex rel. Spokane & British Columbia Teleph. & Teleg. Co. v. City of Spokane, 24 Wash. 53, 63 Pac. 116, 7 Am. Elec. Cas. 96. See also State v. City of Helena (Mont., 1906), 85 Pac. 744.

10 Chittenden v. Wurster, 152 N. Y. 345, 46 N. E. 857, 47 N. E. 273, 37 L. R. A. 809, 29 Chic. Leg. N. 298, 300, rev'g 43 N. Y. Supp. 1035, 77 N. Y. St. R. 1035. 14 App. Div. 483.

11 Harris v. Kill, 108 Ill. App. 305.

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held before it can go into full force and effect; 12 nor where it relates to foreign corporations having a known place of business in the State and also an authorized agent; 13 nor where it requires that the legislature shall prescribe regulations and penalties; 14 nor where it gives a railroad company the right to intersect, connect with, or cross any other railroad, at least so in the sense that its charter powers cannot be ignored; nor where it prohibits discrimination by railroads, also monopolies, and combinations, but provides that the legislature shall enforce such provisions by laws; 16 nor where in addition to a provision as to stockholder's individual liability as security for dues from a corporation, recourse is to be had to such other means as shall be provided by law; 17 nor where the express requirement is that the legislature shall provide by law and prescribe regulations as to taxation; 18 nor where the mode or manner of taxation is to be that provided by law; nor where it specifies that the value of property for taxation is to be ascertained as provided by law; 20 nor where it requires that the legislature shall by general law exempt certain property from taxation; 21 nor where a provision only specifies that power "may" be vested to assess and collect taxes.22

12 Blake v. Ada County Commrs. (Idaho), 47 Pac. 734.

13 St. Louis A. R. Co. v. Fire Assoc., 60 Ark. 325, 30 S. W. 350, 28 L. R. A. 83.

14 State v. Bradford (S. Dak.), 80 N. W. 143, aff'd 83 N. W. 47, citing

numerous cases.

15 Boca & L. R. Co. v. Sierra Valleys Ry. Co. (Cal. App.), 84 Pac. 298. See Denver & N. O. R. Co. v. Atchison, Topeka & Santa Fe R. Co., 15 Fed. 650, case is rev'd, Atchison, Topeka & Santa Fe R. Co. v. Denver & N. O. R. Co., 110 U. S. 667, 28 L. ed. 291, 4 Sup. Ct. 185.

16 Northwestern Warehouse Co. v. Oregon R. & Nav. Co., 32 Wash. 218, 73 Pac. 388.

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Chic. Leg. N. 167, 42 L. R. A. 804, 52 N. E. 346, 17 Nat. Corp. Rep. 644, 10 Am. & Eng. Corp. Cas. (N. S.) 71, 68 Am. St. Rep. 194; Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331. See Eau Claire Nat. Bank v. Benson, 106 Wis. 624, 82 N. W. 604.

18 State Board of Tax Commrs. v. Holliday, 150 Ind. 216, 27 Ins. L. J. 97, 49 N. E. 14, 42 L. R. A. 865.

19 Mercur Gold Min. & Mill. Co. v. Spry, 16 Utah, 222, 52 Pac. 382.

20 McHenry v. Downer, 116 Cal. 20, 47 Pac. 779, 6 Am. & Eng. Corp. Cas. (N. S.) 113, 45 L. R. A. 737.

21 Engstad v. Grand Forks County, 10 N. Dak. 54, 84 N. W. 577.

22 State, Ross, v. Kelly, 45 S. C.

"Bell v. Farwell, 176 Ill. 489, 31 457, 23 S. E. 281.

CHAPTER XVI.

CONSTITUTIONAL LAW-INTERPRETATION OR CONSTRUCTION OF

STATUTES.

§ 228. Constitutional Law-Inter

pretation or Construction

of Statutes-Generally.

Street Railway, Railroad, and Electric Light, etc., Companies.

229. Judicial Authority and Duty § 242. Construction as to Conflicting

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§ 228. Constitutional Law-Interpretation or Construction of Statutes-Generally.-The word "franchise” may be used in its general sense so as to include franchises whether corporate or not, and may cover any special privilege having its source in the sovereign power. But corporate privileges can only be held to be granted as against public rights when conferred in plain and explicit terms. When the good faith of all parties is unquestionable, the courts will lean to that construction of a statute which will uphold a transaction as consummated, and this applies to transactions with a county which have resulted in the delivery of bonds of the county to a railroad company, such bonds having been issued in aid of the company and placed in escrow in the hands of a trustee who had adjudged that the conditions of delivery had been complied with and had delivered them to the company. In such case the company was held to have taken such a title that when a bond was transferred to a bona fide holder a recovery could be had against the county even if the condition had, in fact, not been performed."

§ 229. Judicial Authority and Duty to Determine Constitutional Questions. Whenever there exists a fair antagonistic assertion of rights involving the validity of any legislative enactment, Federal or state, and the decision necessarily rests upon the power of the legislature to so enact, the court having jurisdiction in the matter must determine the

1 State v. Portage City Water Co., 26 Sup. Ct. 427, 50 L. ed. 801. See 107 Wis. 441, 83 N. W. 697 (a case of § 254, herein, as to construction construction of Wis. Stat., 1898, against grantee. §3466, action for usurping, etc., franchise). See § 9, herein.

3 Provident Life & Trust Co. v. Mercer County, 170 U. S. 593, 42

2 Blair v. Chicago, 201 U. S. 400, L. ed. 1156, 18 Sup. Ct. 788.

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