not conduct its postal system six months without an enormous loss but for the monopoly it enforces. When government assumes business and the monopolies with it, it becomes socialism, which is a different government from ours. It may be a good system, even concede it to be the best, but it is not the government of the Declaration of Independence or of the constitution of any state of the Union.

So, also, the state has no right to take the property or money of A and give it to B; that has been adjudged a great many times, but if you will glance at a very late number of your Reporter you will see that Kansas has a law, there held unconstitutional, that a town may go into the mining business, taking stock or contributing directly.

How many millions have been exacted in taxes and turned over to railroad corporations in one form or another?

Legislatures have authorized counties and towns to subscribe for stock, they thereby becoming active partners, with limited corporate liability, for profit-or rather loss, as it invariably happened. Bonds to be paid by taxation always accompanied the subscription, and in many instances the bonds were bestowed as a gift without even the poor return of stock certificates. With the result of this legislation you are all familiar. Even now, in certain counties in Missouri, judges hold their courts in the woods, or any out-of-theway place where a United States marshal is supposed not to be near, because, if caught, they must go to jail until they consent to levy certain railroad taxes. But the outcome of such laws is not material here. The grievous fact is that the property of the unwilling citizen was taken, in every such case, in violation of rights guaranteed to him at the foundation of the government, and that he has been able to get no redress. His government had no right to go into the business of aiding or building railroads, and it had no right to force him to contribute to any such purpose.

Why has he no redress?

He appealed to the courts and they answered that the state, through the Legislature, had the power to determine the question and make the law because there was no prohibition against in the constitution, and because of a theory that inasmuch as the railroad was a quasi-public way, his property would be benefited by it to

the amount of his tax. This last proved to be an unsteady proposition, for in certain instances the railroads were not built at all, although the bonds were issued and had to be paid.

Two things contributed to these, as it seems to me, unwarranted and oppressive decisions. In the first place there is no doubt but that the majority of the people which have had such laws were, at the time favorable to such legislation, and would have voted directly for the laws had they had the opportunity. They were eager for development, there was no private capital at hand to furnish what they wanted, and they forgot some of the cardinal principles of their own liberty. Secondly, the courts of the country in the early days adopted the wrong view of the authority of legislatures.

Rhode Island had no constitution until 1842, but when the legislature of that state, in 1786, made it a penal offense for a creditor to refuse certain worthless bank notes in payment of his debt, or for a merchant to decline to sell his goods and take the notes in payment, the Supreme Court refused to enforce the law, because it was not within the power of the legislature to pass it. There was no question of unconstitutionality, because there was no constitution; but the decision was based upon the broad ground that the legislature of Rhode Island did not have the unlimited jurisdiction of the British Parliament, but was limited to the new, unwritten law of private right which had as yet found expression only in the Declaration of Independence. The court was impeached but the prosecution failed and the law was not enforced until new and pliant judges were installed. Other courts, a great number, were less courageous. They split upon the rock of legislative infallibility unless there was some clear prohibition in the constitution. They found it difficult to say just when a statute conflicted with the "inalienable rights" of individuals, and falling back upon the supremacy of Parliament, they held that the Legislature was the people both collectively and individually, and that its judgment was final as to what things were within its jurisdic

tion.

This doctrine which became almost universal, owing to the weight of authority, accounts for the railroad decisions and many other like injustices.

It is the tree which has borne the fruit of Dead Sea apples upon which individual liberty has had to feed. Adherents of the opposite view have always held that if the courts were to step outside of clear, constitutional restrictions it would be to assert the supremacy of the judicial over the legislative branch of the government, whereas they are supposed to be equal in dignity and incapable of interference with each other. So they are in their respective spheres, but they are not concurrent and their jurisdictions are not equal. The courts are, and in the nature of things, must be the appellate body, and their power of review extends over the entire domain of public and private right. Once it is conceded, as it now is, universally, that a statute may be declared void as unconstitutional, there is no denying the proposition of judicial supremacy. Whenever the Legislature enacts a law it thereby assumes and asserts that it is constitutional; and whenever the court declares the contrary, the judgment of the court prevails, and there is no power except that of the people in constitutional convention that can reverse it.

Why hesitate then on account of a theoretical equality which does not exist? A little courage exerted a good many years ago, and a little less fear of consequences would have saved us from the drifting which has carried us so far from the ideal of our forefathers.

In 1855 the Legislature of the state of Indiana passed a law prohibiting the sale and manufacture of beer and like beverages. The manufacture of whisky, ale, etc., was permitted, but they could only be sold to state agents, who, in turn, could sell them only for medicinal, chemical and sacramental purposes.

The profit or loss
There appeared to

of the venture accrued to the public treasury. be nothing in the state constitution which prohibited the passage of such a law.

One Beebe was committed for failure to pay a fine assessed against him for a violation of that law, and on habeas corpus the Supreme Court, Judge Perkins, said:

"We may as well remark here as anywhere, that if the manufacture and sale of these articles are proper to be carried on in the state for any purpose it is not competent for the government to take the business from the people and monopolize it. The government cannot turn druggist

and become the sole dealer in medicines in the state, and why? Bceause the business was, at and before the organization of the government, and is properly at all times, a private pursuit of the people, as much so as the manufacture and sale of brooms, tobacco or clothes, and the dealing in tea, coffee and rice, and the raising of potatoes; and the government was organized to protect the people in such pursuits from the depredations of powerful and lawless individuals, the barons of the middle ages, whom they were too weak to resist single handed by force; and for the government now to seize upon these pursuits is subversive of the very object for which it was created, and is inconsistent with the right of private property and in pursuits of the citizen.

"A number of European writers on natural, public and civil law are cited by counsel on behalf of the state to show the extent of legislative power, but these writers, respectable and instructive upon some subjects as they are admitted to be, are not authority here upon this point. Indeed the discovery of the great doctrine of rights in the people as against the government had not been made when the writers above referred to lived.

"Such governments as those described could adopt the maxim quoted by counsel, that the safety of the people is the supreme law, and act upon it; and being severally the sole judges of what their safety in the countries governed respectively required, could prescribe what the people should eat and drink and what political, moral and religious creeds they should believe, and punish heresy by burning at the stake, all for the public good. * * * But the maxim above quoted, as applied to legislative power, is here without meaning."

The prisoner was discharged.

In various other courts such expressions as these have been used: "The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them, a power so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the public. The public ought not to be presumed to part with rights, so vital to their security and well being, without strong and direct expressions of such intention."

And again:

With those judges who assert the omnipotence of the Legislature in all cases where the constitution has not interposed an explicit restraint, I cannot agree. Should there exist what I know is not only an incredible supposition but a most remote probability, -a case of direct infraction of vested rights too palpable to be questioned, and too unjust to

admit of vindication, I could not avoid considering it as a violation of the social compact and within the control of the judiciary.

Had the learned judge who penned the words last quoted lived to the end of the century, in the first quarter of which he wrote, he might have seen occasion for testing his loyalty to vested rights. He would have seen the number of cases where individuals in defense of their rights were driven to the courts for redress against legislative denials of them multiply in astonishing ratio; and he would have witnessed on the part of those courts a continual yielding to the pressure of popular legislative encroachments, induced by the idea that the state may adopt any course which the Legislature deems to the advantage of the majority if it is not positively prohibited. In the rush for internal improvements which characterized a long period of our history the letter of the constitutions which declared that private property should not be taken for public use without compensation, was adhered to, of course, but damages to property not actually taken, but injured, even to the point of ruin, by the taking and use of other property for public purposes, was presistently denied until new constitutions set the matter right.

I have alluded to one case involving a prohibitory law which was held void. But the ill-advised partiasns of prohibition have been able to enact such laws in many states and have them sustained as a legitimate subject for legislation. Sometimes these laws have taken the form of local option, so that what was lawful and proper in one township or village was a crime in an adjoining township or village. State constabularies have been invested with the most extraordinary powers of search, arrest and destruction of property. All for what? To enforce on one man the belief of another that certain things ought not to be taken into his stomach. In our own state a man has been convicted and sent to prison for smoking opium, and there is an unenforced law practically prohibiting the sale of a cigarette. In another the whole business of manufacturing and selling alcoholic products for all purposes has been seized and monopolized by the state, which set up its dram shops and proceeded to confiscate the property of every one, resident and non-resident, who dared to offer competition. An appeal to the Federal constitution procured a half-way nullification of the