[766] of course, to regulations equally open to all. 3. But still more apparent is the violation, by this monopoly law, of the last clause of the section "No State shall deny to any person the equal protection of the laws." If it is not a denial of the equal protection of the laws to grant to one man or set of men, the privilege of following an ordinary calling in a large community, and to deny it to all others, it is difficult to understand what would come within the constitutional prohibition. troverted. The General Governmeut was not formed to interfere with or control them. No aid was required from any external authority for their enforcement. It was only for matters which concerned all the States and which could not be efficiently or advantageously managed by them separately, that a general and common government was desired. And the recent Amendments to the Constitution have not changed nor diminished their previously existing power to legislate respecting the public health and public morals. But though this power rests with them, it cannot be admitted that, under the pretense of providing for the public health or pubthose Amendments declare shall not be impaired. The Act of Louisiana required that the slaughtering of cattle and the preparation of animal food for market should be done outside of the limits of the City of New Orleans. It was competent to make this requirement and, furthermore, to direct that the animals, before being slaughtered, should be inspected, in order to determine whether they were in a fit condition to be prepared for food. The dissenting Judges in the Slaughter-House Cases found no fault Monopolies are the bane of our body politic with these provisions but, on the contrary, apat the present day. In the eager pursuit of gain proved of them. Had the Act been limited to they are sought in every direction. They exhibit them, there would have been no dissent from themselves in corners in the stock market and the opinion of the majority. But it went a great produce market and in many other ways. If, by way beyond them. It created a Corporation, legislative enactment, they can be carried into and gave to it an exclusive right for twentythe common avocations and callings of life, so five years to keep, within an area of 1,145 square as to cut off the right of the citizen to choose miles, a place where, alone, animals intended his avocation, the right to earn his bread by the for slaughter could be landed and sheltered and trade which he has learned: and if there is no where, alone, they could be slaughtered and constitutional means of putting a check to such their meat prepared for market. It is difficult enormity, I can only say that it is time the Con- to understand how, in a district embracing a stitution was still further amended. In my population of a quarter of a million, any conjudgment, the present Constitution is amply suf-ditions of health can require that the preparaficient for the protection of the People, if it is fairly interpreted and faithfully enforced. True copy. Test: tion of animal food should be intrusted to a single corporation for twenty-five years, or how in a district of such extent, there can be only James H. McKenney, Clerk, Sup. Court,U. S. one place in which animals can, with safety to Mr. Justice Field, concurring: ness was created. the public health, be sheltered and slaughtered. In the grant of these exclusive privileges, a moI concur in the doctrine declared in the opin-nopoly of an ordinary employment and busiion of the court, that the Legislature cannot, by contract with an individual or corporation, restrain, diminish or surrender its power to enact laws for the preservation of the public health or the protection of the public morals. This is a principle of vital importance, and its habitual observance is essential to the wise and valid execution of the trust committed to the Legislature. But there are some provisions in the Act of Louisiana upon which the appellee relies, that have not been referred to, and which, from the interest excited by the decision ren. dered when that Act was before us in the Slaughter-House Cases, should be mentioned in connection with the views now expressed. 16 Wall., 36 [83 U. S., XXI., 394]. No one of the Judges who then disagreed with the majority of the court denied that the States possessed the fullest power ever claimed by the most earnest advocate of their reserved rights, to prescribe regulations affecting the health, the good order, the morals, the peace and the safety of society within their respective limits. When such regulations do not conflict with any constitutional inhibition or natural right, their validity cannot be successfully con [755] A monopoly is defined "to be an institution or allowance from the sovereign power of the State, by grant, commission or otherwise, to any person or corporation, for the sole buying, selling, making, working or using of anything whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade." All grants of this kind are void at common law, because they destroy the freedom of trade, discourage labor and industry, restrain persons from getting an honest [756] livelihood and put it in the power of the grantees to enhance the price of commodities. They are void because they interfere with the liberty of the individual to pursue a lawful trade or employment. The oppressive nature of the principle upon which the monopoly here was granted will more clearly appear if it be applied to other vocations than that of keeping cattle and of preparing animal food for market; to the ordinary trades and callings of life, to the making of bread, the raising of vegetables, the manufacture of shoes and hats and other articles of daily use. The As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all governmental action, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the Declaration of Independence, that new evangel of liberty to the people: "We hold these truths to be self-evident," that is, so plain that their truth is recognized upon their mere statement, [757] “ that all men are endowed;" not by edicts of Emperors or decrees of Parliament or Acts of Congress, but “ by their Creator, with certain inalienable rights" that is, rights which cannot be bartered away or given away or taken away except in punishment of crime; "and that among these are life, liberty and the pursuit of happiness, and to secure these," not grant them but secure them, " governments are instituted among men, deriving their just powers from the consent of the governed.' granting of an exclusive right to engage in such | dexterity of his own hands, and to hinder his Vocations would be repudiated in all commu- employing this strength and dexterity in what nities as an invasion of common right. The manner he thinks proper, without injury to his State, undoubtedly, may require many kinds of neighbor, is a plain violation of this most sacred business to be carried on beyond the thickly property. It is a manifest encroachment upon settled portions of a city or even entirely the just liberty both of the workman and of without its limits, especially when attendant those who might be disposed to employ him. odors or noises affect the health or disturb the As it hinders the one from working at what he peace of the neighborhood; but the exercise of thinks proper, so it hinders the others from emthis necessary power does not warrant granting ploying whom they think proper." Adam to a particular class or to a corporation a mo- Smith, Wealth of Nations, bk. 1, ch. 10. nopoly of the business thus removed. It may In this country it has seldom been held and be that, for the health or safety of a city, the never in so odious a form as is here claimed, [758] manufacture of beer or soap, or the smelting of that an entire trade and business could be taken ores or the casting of machinery should be car- from citizens and vested in a single corporation. ried on without its limits, yet it would hardly Such legislation has been regarded everywhere be contended that the power thus to remove the else as inconsistent with civil liberty. That exbusiness beyond certain limits would authorize ists only where every individual has the power the granting of a monopoly of it to any one or to pursue his own happiness according to his more persons. And if not a monopoly in busi- own views, unrestrained except by equal, just ness of this character, how can a monopoly for and impartial laws. The Act of Louisiana comlike reasons be granted in the business of prepar-pelled more than a thousand persons to abandon ing animal food for market or of yarding and their regular business and to surrender it to a sheitering cattle intended for slaughter? Corporation to which was given an exclusive right to pursue it for twenty-five years. What was lawful to these thousand persons, the day before the law took effect, was unlawful the day afterwards. With what intense indignation would a law be regarded that should, in like manner, turn over the common trades of the community to a single corporation. I cannot believe that what is termed in the Declaration of Independence a God-given and an inalienable right, can be thus ruthlessly taken from the citizen, or that there can be any abridgment of that right except by regulations alike affecting all persons of the same age, sex and condition. It cannot be that a State may limit to a specified number of its people, the right to practice law, the right to practice medicine, the right to preach the gospel, the right to till the soil or to pursue particular business or trades, and thus parcel out to different parties the various vocations and callings of life. The 1st section of the 14th Amendment was, among other things, designed to prevent all discriminating legislation for the benefit of some to the disparagement of others, and when rightly enforced as other prohibitions upon the State, not by legislation of a penal nature but through the courts, no one will complain. The disfranchising provisions of the 3d section naturally created great hostility to the whole Amendment. They were regarded by many wise and good men as impolitic, harsh and cruel; and the manner in which the 1st section has been enforced by penal enactments against legislators and Governors has engendered wide spread and earnest hostility to it. Communities, like individuals, resent even favors ungraciously bestowed. The appropriate mode of enforcing the Amendment is, in my judgment, that which has been applied to other previously existing constitutional prohibitions, such as the one against a State passing a law [759] impairing the obligation of contracts or a bill of attainder or an ex post facto law. The only provisions deemed necessary to annul legislation of this kind have been such as facilitated proceedings for that purpose in the courts; no other can be appropriate against the action of a State. Thus enforced, there would be little objection to the provisions of the 1st section of the Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment. The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves and have been followed in all communities from time immemorial, must, therefore, be free in this country to all alike upon the same conditions. The right to pursue them, without let or hindrance, except that which is applied to all persons of the same age, sex and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright. It has been well said that, "The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and ness, was to that extent against common righ James H.McKenney, Clerk, Sup. Court, U. S Ex Parte: In the Matter of JOHN HITZ, Petitioner. -not a writ of right. Amendment. No one would object to the clause manding an inferior court to certify to this court 1. An application for a writ of certiorari, coman indictment in that court, on the ground that when the indictment was filed the person indicted be denied where it appears that, before the indictwas the political agent of a foreign government, will ment was filed, he was requested by his government to resign and did resign, and the records of the Department of State show nothing in regard to his relations to the United States, except a denial of the privilege to him of a free entry of goods imported for his use. defendant, is not a writ of right, but is discretion2. The writ of certiorari, when applied for by a ary with the court. [No. 12, Orig.] Argued Mar. 4, 5, 1884. Decided May 5, 1884. Messrs. Benjamin F. Butler and O. D. Messrs. A. S. Worthington and R. Ross Mr. Chief Justice Waite delivered the opin This is an application by Mr. John Hitz for a writ of certiorari commanding the Supreme Court of the District of Columbia to cer- [767] tify to this court an indictment and the proceedings thereunder against him in that court, on the ground that when the indictment was filed and when the offenses therein charged were committed, he was the diplomatic representative of the Swiss Confederation, duly accredited to and received and recognized by the United States, under the title of Political Agent. The indictment was filed on the 17th of June, 1881. The 1st section of the Amendment is stript of all its protective force, if its application be limited to the privileges and immunities of citizens of the United States as distinguished from citi-ion of the court: zens of the States, and thus its prohibition be extended only to the abridgment or impairment of such rights, as the right to come to the seat [760] of government to secure any claim they may have upon that government, to transact any business with it, to seek its protection, to share its offices, to engage in administering its functions, to have free access to its seaports, to demand its care and protection over life, liberty and property on the high seas or within the jurisdiction of a foreign government, the right to peaceably assemble and petition for redress of grievances and the right to use the navigable waters of the United States, which are specified in the opinion in the Slaughter-House Cases as the special rights of such citizens. If thus limited, nothing was accomplished by adopting it. The States could not previously have interfered with these privileges and immunities or any other privileges and immunities which citizens enjoyed under the Constitution and laws of the United States. Any attempted impairment of them could have been as successfully resisted then as now. The Constitution and laws of the United States were as much then as now the supreme law of the land, which all officers of the State Governments were then, as now, bound to obey. Whilst, therefore, I fully concur in the decision of the court that it was entirely competent for the State to annul the monopoly features of the original Act incorporating the plaintiff, I am of opinion that the Act, in creating the monopoly in an ordinary employment and busi From the return which has been made to the rule to show cause, it appears that the indictment is for an offense against the provisions of section 5209 of the Revised Statutes alleged to have been committed by Mr. Hitz while and as president of the German-American National Bank of Washington. It also appears that he was for many years the Consul General of the Swiss Confederation within the United States, and that on the 28th of February, 1868, he was accredited to the United States by the same government as Political Agent. On the 30th of May, 1881, he was requested by the Swiss Confederation to resign both these offices, and this he did on the 15th of June. On the 20th of June his resignations were accepted. Precisely what the relations of Mr. Hitz to the United States were, as Political Agent of the Swiss Confederation, we have not been advised; and on application to the Department of State, made on the suggestion of the court by the counsel in this proceeding, we are informed 1883. CITY AND CO. OF SAN FRANCISCO V. SCOTT. KILLIAN V. EBBINGHAUS. 768, 769; 798, 799 right to alienate portions of the land to its inhabitants, for building or cultivation, and to use the remainder for commons, for pasture lands or as a source of revenue or for other purposes. This right of disposition and use was, in all particulars, subject to the control of the government of the country." This definition was accepted as substantially accurate in Grisar v. McDowell, 6 Wall., 372 [73 U. S., XVIII., 865], and Palmer v. Low, 98 U. S., 16 [XXV., 64]. that the records of the Department show nothing to little more than a restricted and qualified upon this subject except a letter from him under date of March 30, 1868, inclosing his letter of credence and soliciting an interview with the Secretary of State for its formal presentation; the answer of Secretary Seward according such an interview and fixing the 2d of April as the time; and a letter from Secretary Fish to Mr. [768) Hitz, under date of June 28, 1870, informing him that he, the Secretary, did not find in his relations to the United States any ground for continuing the privilege to him of a free entry of goods imported for his use. Under these circumstances, as the writ of certiorari, when applied for by a defendant, is not a writ of right, but discretionary with the court (Bac. Abr., Certiorari, A), we deny this application, leaving the parties to such remedies as they may be entitled to elsewhere or under any other form of proceeding. True copy. Test: James H. McKenney, Clerk, Sup. Court, U.S. The complaint in this case was filed in the District Court of the Fourth Judicial District of California, by the defendant in error, to enjoin the defendants from opening and grading a certain street over land in San Francisco claimed by her. The court found for the complainant and entered a decree in her favor. This decree having been affirmed, on appeal, by the court below, 54 Cal., 430, the defendants sued out this writ of error. Messrs. Harry I. Thornton, John L. Murphy, William Craig and J. H. Meredith, for plaintiffs in error. Mr. Sidney V. Smith, Jr., for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court: There is no federal question in this case. The right of San Francisco under the Treaty of Guadalupe Hidalgo to the lands in dispute as pueblo lands is not denied. Precisely what that right was may not be easy to state. Mr. Justice Field, speaking for the court, said, in Townsend v. Greeley, 5 Wall., 336 [72 U. S., XVIII., 549], "It was not an indefeasible estate; owner The Act of July 1, 1864, ch. 194, sec. 5, 13 Stat. at L., 333, simply released to the City all the right and title of the United States in the lands. Hoadley v. San Francisco, 94 U. S., 5 [XXIV., 34], and thus perfected the incomplete Mexican title for the uses and purposes specified. Palmer v. Low (supra). Its effect was to surrender all future control of the United States over the disposition and use of the property by the City. The only controversy in this case is to the effect of the alcalde grant of the pucblo title; and the precise question submitted to the Supreme Court of the State for determination was, "whether, after the conquest * * and be # fore the incorporation of the City of San Francisco and before the adoption of the Constitution of the State of California, a person exercising the functions of an alcalde of the pueblo of San Francisco *** could make a valid grant of pueblo lands, as such officers had been before such conquest accustomed to do," and, if so, what would be the effect of such a grant? This does not depend on any legislation of Congress nor on the terms of the Treaty, but on the effect of the conquest upon the powers of local government in the pueblo under the Mexican laws. That is a question of general public law, as to which the decisions of the state court are not reviewable here. This has been many times decided. Delmas v. Ins. Co., 14 Wall., 661 [81 U. S., XX., 757]; Tarver v. Keach, 15 Wall., 68 [82 U. S., XXI., 82]; Ins. Co. v. Hendren, 92 U. S., 286 [XXIII., 709]; Dugger v. Bocock, 104 U. S., 596 (XXVI., 846]; Allen v. McVeigh, 107 U. S., 433 [XXVII., 572]. It follows that we have no jurisdiction, and the writ of error is dismissed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. PPEAL from the Supreme Court of the Dis. ship of the lands in the pueblos could not in Afri [769] strictness be affirmed. It amounted, in truth, On motion to correct a mandate. For the report of the opinion of this court on Messrs. Henry Wise Garnett and Conway Messrs. F. P. Cuppy and P. E. Dye, for Mr. Chief Justice Waite delivered the opinion of the court: This suit was brought against the Trustees of the German Evangelical Concordia Church, then in possession of the premises in dispute. They answered by that name, setting up their title to the property and their claim to the possession. The record shows a notice by Ebbinghaus, the [799] appellee and complainant below, to the Trustees of the German Evangelical Lutheran Concordia Church. The final decree was against the Trustees or authorities of the said Concordia Church, whether under the name of the Trustees of the German Evangelical Concordia Church, or under the name of the Trustees of the German Lutheran Evangelical Concordia Church." The Trustees appealed, but in their appeal bond they described themselves as Trustees of the German Lutheran Evangelical Concordia Church. The case was entered here promptly and docketed in the name of John G. Killian et al., Trustees of the German Lutheran Evangelical Concordia Church, Appellants, v. John W. Ebbinghaus, Trustee. Both parties appeared and argued the case, as presented by the record, on its merits. No objection was made to the form of the appeal. A mandate which was sent to the court below described the appeal as "Taken by John G. Killian et al., Trustees of the German Lutheran Evangelical Concordia Church." As in this there was error, the mandate has been recalled, and we now order that a new mandate issue describing the cause below as between John W. Ebbinghaus, Trustee, complainant, and John G. Killian et al., Trustees of the German Evangelical Concordia Church, and August Sievers et al., Trustees of the First Reformed Church, defendants, Equity, No. 5688, and the appeal as "Taken by John G. Killian et al., Trustees of the German Evangelical Concordia Church." True copy. Test: James A. McKenney, Clerk, Sup. Court, U. 8. [770] NANCY A. EDRINGTON, Individually and as Exrx. of JAMES H. EDRINGTON, Deceased, Appt., 0. J. W. JEFFERSON ET AL. (See S. C., Reporter's ed., 770–775.) Review of motion to remand cause to State Court 1. Where the petition for removal of a cause was 2. Where all the contesting defendants to the origi nal complaint have filed answers which contained The history and facts of the case appear in Messrs. A. H. Garland, U. M. Rose and Messrs. D. E. Myers and Wm. M. Sneed, Mr. Chief Justice Waite delivered the opinion of the court: In the view we take of this case, it is only necessary to consider the following facts: James H. Edrington and J. T. Jefferson were On the 2d of December, 1874, John W. Jef- that the trustee advertised the sale at the insti- trustee. No summons was issued or served on any of the defendants, but on the first of March, 1875, John W. Jefferson and J. T. Jefferson both appeared and filed separate answers to the |