balance between the National and state governments and hold each in its separate sphere is the duty of all courts and pre-eminently of that court. It is declared in an Iowa case that: "It is fundamental in our system of government that all powers not delegated to the United States by the terms of the Federal Constitution and its amendments, nor prohibited by it to the States are reserved to the States or to the people.1 Subject to the authority thus expressly or by necessary inference delegated to the Federal government, the State has sovereign legislative power over all subjects, except such as are withheld from it by the constitution of the State itself." 5 The following principles have been enunciated by the Federal Supreme Court and they are important in this connection. Thus, it is asserted that: (a) The government of the Union is a government of the people; it emanates from them; its powers are granted by them; and are to be directly exercised on them, and for their benefit; (b) the government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land; (c) there is nothing in the Constitution of the United States, similar to the articles of confederation, which includes incidental or implied powers; (d) if the end be legitimate, and within the scope of the Constitution all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect; (e) if a certain means to carry into effect any of the powers, expressly given by the Constitution to the government of the Union, be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance; (f) it is a general rule, that in so far as

3 South Carolina v. United States, 199 U. S. 437, 50 L. ed., 26 Sup. Ct. (a case of internal revenue, liability of agents and of sale of liquors). See also Heff, Matter of, 197

U. S. 488, 49 L. ed. 848, 25 Sup. Ct. 506.

4 Constitution amendment 10.

United States,

5 McGuire v. Chicago, Burlington & Quincy R. Co., 131 Iowa, 340, 349.

6

laws passed by Congress are constitutional and are enacted to carry out the powers vested in the government of the Uni'ted States, the States are not empowered to retard, burden or control the operations of such constitutional laws; and (g) the prohibition in the Constitution of the United States against the passage of laws impairing the obligation of contracts applies to the constitution as well as to the laws of each State." The people of the United States, and of the States, have agreed to constitutions as a basis of government, and for the security, amongst other essentials, of their rights, property and common welfare. The people have not, however, committed to the United States government "their own complete functions of legislation and administration," but have intrusted a portion to the separate States, "so that the rights of the individual shall be guarded from the encroachments of power." The Constitution and laws of the United States, made in pursuance thereof, are, however, the supreme law of the land; and every

McCulloch v. State of Maryland, 4 Wheat. (17 U. S.) 316, 4 L. ed. 579, cited and quoted from on this last point in United States v. Rickert, 188 U. S. 438, 439, 23 Sup. Ct. 480, 481, 47 L. ed. 536, 537; cited also in South Carolina v. United States, 199 U. S. 437, 452, 26 Sup. Ct. 110, 50 L. ed. 261, where Brewer, J., says: "The two governments, National and State, are each to exercise their power so as not to interfere with the free and full exercise by the other of its powers. This proposition, so far as the nation is concerned, was affirmed at an early date, in the great case of McCulloch v. Maryland, 4 Wheat. (17 U. S.) 316, 4 L. ed. 579.

8

9

Light Co., 115 U. S. 650, 29 L. ed. 615, 6 Sup. Ct. 252. See § 304, herein. Pomeroy's Const. Law (3d ed.), p. 142, § 226; McRoan v. Devries, 3 Barb. (N. Y.) 198; State v. McCann, 4 Lea (72 Tenn.), 9. See Sage v. New York, 154 N. Y. 61, 47 N. E. 906, aff'g 41 N. Y. Supp. 938, 10 App. Div. 294.

Const. U. S. art. 6, par. 2; Pensacola Teleg. Co. v. Western Union Teleg. Co., 96 U. S. 1, 18, 24 L. ed. 708, 1 Am. Elec. Cas. 253, per Waite, C. J. See Western Union Teleg. Co. v. James, 162 U. S. 650, 40 L. ed. 1105, 16 Sup. Ct. 934, 6 Am. Elec. Cas. 863; New Orleans Gas Light Co. v. Louisiana Light & H. P. & M. Co., 115 U. S. 672, 6 Sup. Ct. 252; Sinnot v. Davenport, 22 How. (63 U. S.) 227, 16 L. ed. 243; Dodge v. Woolsey, 18 How. (59 U. S.) 331, 50 L. ed. 401; Houston v. Moore, 5 Wheat. (18 U. S.) 49, 5 L. ed. 31.

part of the territory under the jurisdiction of the government of the United States is, irrespective of state lines, subject to. its operation and within its protection, provided its acts are within the scope of its powers, and, in so far as national rights are concerned, which belong to all, no part of the country can encroach upon another. Within this doctrine no State can, by legislation, exclude all commercial intercourse by telegraph between its citizens and those of other States, as the power to control and regulate interstate commerce is vested in Congress. 10 Again, it is declared that the Supreme Court are fully sensible, that it is their duty, in exercising the high powers conferred upon them by the Constitution of the United States, to deal with great and extensive interests, such as chartered property, with the utmost caution, guarding, so far as they have power to do so, the right of property, at the same time, carefully abstaining from any encroachment on the rights reserved to the States.11

$121. Distinction Between Limitations on Powers of Federal and of State Governments. 12-The people, and through them the legislature, have supreme power in all matters of government where not prohibited by constitutional limitations, and, while the powers of the Federal government are restricted to those delegated, those of the state government embrace all that are not forbidden. And all acts of the legislature are presumed to be valid until it is clearly shown that they violate some constitutional restriction, and questions relating to the wisdom, policy and expediency of statutes are for the legislature and not for the courts to determine.13 So the rule of construction of the Constitution of the United States and of state constitutions differs in this, that in the former, the question is one of enumerated powers granted to Congress; Bridge, 11 Pet. (36 U. S.) 420, 9 L. ed. 773.

10 Pensacola Teleg. Co. v. Western Union Teleg. Co., 96 U. S. 1, 24 L. ed. 708, 1 Am. Elec. Cas. 253, per Waite, C. J. See Joyce on Electric Law (2d ed.), §§ 65–67.

12 See § 137, herein.

13 Boyce, Ex parte, 27 Nev. 299, 75 Pac. 1. See also Wallace v. City of

11 Charles River Bridge v. Warren Reno, 27 Nev. 71, 73 Pac. 528.

in the latter, whether the law is legislative in its character and whether it is prohibited to the legislature.14 Again, under a Virginia decision, the state constitution, unlike the Federal Constitution in this particular, is a restraining instrument, and in the matter of enacting laws, the legislature is omnipotent, except in so far as it is restrained by the state or Federal Constitution, either in express terms or by necessary implication. Its enactments, therefore, are always presumed to be constitutional, and can never be declared otherwise, except where they clearly and plainly violate the Constitution. All doubts are resolved in favor of their validity, and in resolving doubts, the legislative construction put upon the Constitution is entitled to great consideration though it will not be given a controlling effect.15

§ 122. Grant of Franchises-Governmental or Legislative Power-Generally.-As we have stated elsewhere, a franchise was early defined as a royal privilege in the hands of a subject; a branch of the royal prerogative subsisting in the hands of a subject.16 Being such royal privilege or prerogative all franchises were derived from the crown and subsisted in a subject by grant from the king, which grant was a prerequisite to their existence, and, although it might in some cases be held by prescription, still such prescription presupposed a grant. So that in England, corporations are created and exist by royal charter, by act of Parliament and by prescription.17 Where a

17 California: Spring Valley Water Works v. Schottler, 62 Cal. 69, 106, per Thornton, J.

Co. v. Evans, 166 Ill. 548, 556, 46 N. E. 1083; People v. Haltz, 92 Ill. 426, 428.

New York: People v. Utica Ins. Co., 15 Johns. (N. Y.) 357, 386, 8 Am. Dec. 243, per Spencer, J. (a case of usurpation of franchise to carry on banking business as a corporation).

Pennsylvania: Twelfth St. Market Co. v. Philadelphia & Reading Georgia: Franklin Bridge Co. v. Term. Co., 142 Pa. 580, 590, 21 Atl. Young Wood, 14 Ga. 80, 84. 989, per Thayer, J. (a case of a public

Illinois: Wilmington Water Power market house and right of eminent

charter is granted by the Crown under an act of Parliament and privileges are granted which could not be conferred by the Crown except by force of that enactment, it constitutes an incorporation of the company "by act of Parliament" within the terms of a will authorizing the investment of trust funds in stocks of companies incorporated as so directed.18 The right to establish a ferry was'a franchise, and no man could set up a ferry although he owned the soil and landing place on

Wisconsin: Sellers v. Union Lumbering Co., 39 Wis. 525, 527, per Ryan, C. J. See also Finch's Laws of Eng. 126 on the other hand, it is intended to [38].