CHAPTER XVIII. CONSTITUTIONAL LAW-FEDERAL CONSTITUTION. 289. Constitution-Grant and Lim- § 293. Same Subject Actions $289. Constitution-Grant and Limitation on Powers of Governments-Express and Implied Powers-Construction. We have considered the question of national and state powers generally, and also the distinction between the grant, by the constitution, of powers to the Federal 2 and limitations on the state governments; and it may also be stated 3 Louisiana: State v. Nathan, 121 Rob. (La.) 332. Nebraska: State v. Moore, 40 Neb. 854, 59 N. W. 755. Pennsylvania: Page v. Allen, 58. Pa. 338, 98 Am. Dec. 272. Utah: State v. Holden, 14 Utah, 71, 37 L. R. A. 103, 46 Pac. 756. 3 See §§ 121, 137, herein. See the following cases: United States: Trezza v. Brush, 142 U. S. 160, 12 Sup. Ct. 158, 35 L. ed. 974; McElvaine v. Brush, 142 U. S. 155, 35 L. ed. 971, 12 Sup. Ct. 156. Alabama: State v. Skeggs (Ala., here that the settled rule of construction of state constitutions is that they are not special grants of power to legislative bodies, like the Constitution of the United States, but general grants of all the usually recognized powers of legislation not actually prohibited or expressly excepted. It is a limitation on the general powers of a legislative character, and restrains only so far as the restriction appears either by express terms or by necessary implication. The Federal Constitution confers powers expressly enumerated; that of the State confers 1908), 46 So. 268; Dorsey, In re, 7 Port. (Ala.) 293. Nebraska: State v. Moore, 40 Neb. 854, 59 N. W. 755. See State, Arkansas: State v. Sorrels, 15 Smyth, v. Moores, 55 Neb. 480, 76 N. Ark. 664. W. 175, 41 L. R. A. 624. California: Beals V. Amador County, 35 Cal. 624; Hobart v. Butte County, 17 Cal. 23; Ross v. Whitman, 6 Cal. 361. New York: People v. Flagg, 46 N. Y. 401; Bank of Chenango v. Brown, 26 N. Y. 467. See Sage v. New York, 154 N. Y. 61, 38 L. R. A. Colorado: People v. Fleming, 10 603, 47 N. E. 1096, 30 Chic. Leg. N. Colo. 552, 16 Pac. 298. 1089, aff'g 41 N. Y. Supp. 938, 10 App. Div. 294. Connecticut: Booth v. Town of Woodbury, 32 Conn. 118; Lowrey v. Gridley, 30 Conn. 450. Florida: Cotter v. Ponder, 6 Fla. 610. Ohio: Bonebrake v. Wall (Ohio C. P.) 24 Ohio L. J. 175. Pennsylvania: Lewis' Appeal, 67 Pa. 153; Page v. Allen, 58 Pa. Illinois: Hawthorne v. People, 109 338, 98 Am. Dec. 272; Philadelphia, Ill. 302, 50 Am. Rep. 610. Indiana: Hovey v. State, 119 Ind. 395, 21 N. E. 21. Iowa: Eckerson v. City of Des Moines (Iowa, 1908), 115 N.W. 177; McMillen v. County Judge & Treas. of Lee County, 6 Iowa, 391. Kansas: Ratcliff v. Wichita Union Stockyards Co., 74 Kan. 1, 86 Pac. 150. Griswold City of, v. Field, 58 Pa. 320. Tennessee: Stratton v. Morris, 5 Pick. (89 Tenn.) 497, 15 S. W. 87, 12 L. R. A. 70. Utah: State v. Holden, 14 Utah, 71, 46 Pac. 756, 37 L. R. A. 103. Vermont: Thorpe V. Rutland, & Burlington Rd. Co., 27 Vt. 140, 62 Am. Dec. 625. Virginia: Whitlock v. Hawkins, v. Hep- 105 Va. 242, 53 S. E. 401. Kentucky: burn, 2 Div. (63 Ky.) 20. Louisiana: Hughes v. Murdock, 45 La. Ann. 935, 13 So. 182. Michigan: Attorney Genl. v. Preston, 56 Mich. 177, 22 N. W. 261. Missouri: State ex rel. Henson v. Sheppard, 192 Mo. 497, 91 S. W. 477. Washington: State v. Clark, 30 Wash. 439, 71 Pac. 20. West Virginia: Bridges v. Shellcross, 6 W. Va. 562. Wisconsin: Bushnell v. Beloit, 10 Wis. 195. Enumeration of powers-Bill of Rights of Nebraska constitution. a general grant of all powers not excepted. So the constitution itself and not the general body of the law must be resorted to in order to determine the limitations on the powers of the legislature. That the government of the United States is one of enumerated powers is constantly asserted; it has no inherent powers of sovereignty; the enumeration of the powers granted is to be found in the Constitution of the United States and in that alone; the manifest purpose of the Tenth Amendment to the Constitution is to put beyond dispute the proposition that all powers not granted are reserved to the people, and if in the future further powers ought to be possessed by Congress they must be obtained by a new grant from the people. The Federal Constitution is, however, a written instrument, and, as such, its meaning does not alter. Its language, as a grant of power to the national government, is general, and as changes come in social and political life, it embraces all new conditions within scope of the powers conferred.? Again, the Constitution was ordained and established by the people of the United States for themselves: for their own government; and not for the government of individual States. Each State established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests; the powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in See State, Smyth, v. Moores, 55 Neb. Erie & North-East Rd. v. Casey, Kansas v. Colorado, 206 U. S. 46, 51 L. ed. 956, 27 Sup. Ct. 655. See citations in second preceding note to this section. 480, 76 N. W. 175, 41 L. R. A. 624. 26 Pa. 287. 'South Carolina v. United States, 199 U. S. 437, 50 L. ed. —, 26 Sup. See Dred Scott v. Sandford, 19 How. (60 U. S.) 393, 15 L. ed. 191. -. general terms, are naturally and necessarily applicable to the government created by the instrument; they are limitations of power granted in the instrument itself; not of distinct governments framed by different persons and for different purposes. And although the government of the United States is, within the scope of its powers, supreme and beyond the States, it can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the States. But it is held that the reservation to the States does not limit the power of Congress to legislate for the Territories.10 § 290. Same Subject Continued.-The Federal government is not restricted to the powers expressly granted in the Constitution; it has all the powers necessarily implied from the powers granted.11 The government of the United States was born of the Constitution, and all powers which it enjoys or may exercise must be either derived expressly or by implication from that instrument. Even then, when an act of any department is challenged, because not warranted by the Constitution, the existence of the authority is to be ascertained by determining whether the power has been conferred by the Constitution, either in express terms or by lawful implication, to be drawn from the express authority conferred or deduced as an attribute which legitimately inheres in the nature of the powers given, and which flows from the character of the government established by the Constitution. In other words, whilst confined to its constitutional orbit the government of the United States is supreme within its lawful sphere. Every function of the government being thus derived from the Constitution, it follows that that instrument is everywhere and Barron v. Baltimore, 7 Pet. (32 U. S.) 243, 8 L. ed. 672. United States v. Cruikshanks, 92 U. S. 542, 23 L. ed. 548, 190 Sup. Ct. 136. 10 Downes v. Parshall, 3 Wyo. 425, 26 Pac. 994. 11 Gibbons v. Ogden, 9 Wheat. (22 U. S.) 1, 6 L. ed. 23. at all times potential in so far as its provisions are applicable. Hence it is that wherever a power is given by the Constitution and there is a limitation imposed on the authority, such restriction operates upon and confines every action on the subject within its constitutional limits. Consequently, it is impossible to conceive that where conditions are brought about to which any particular provisions of the Constitution applies, its controlling influence may be frustrated by the action of any or all the departments of the government. Those departments, when discharging, within the limits of their constitutional power, the duties which rest on them, may of course deal with the subjects committed to them in such a way as to cause the matter dealt with to come under the control of provisions of the Constitution which may not have been previously applicable. But this does not conflict with the doctrine just stated, or presuppose that the Constitution may or may not be applicable at the election of any agency of the government." If the Constitution in its grant of powers is to be able to carry into full effect the powers granted, it is equally imperative that where prohibition or limitation is placed upon the powers of Congress, that prohibition or limitation should be enforced in its spirit and to its entirety.13 12 § 291. Privileges and Immunities of Citizens in the Several States.-Corporations are not citizens within the meaning of that clause of the Constitution of the United States which provides that citizens of each State shall be entitled to privileges and immunities of citizens in the several States. 14 Corpo 12 Downes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. 770. 13 Fairbank v. United States, 181. U. S. 283, 45 L. ed. 862, 21 Sup. Ct. 648. 14 Const. U. S., Art. IV, § 2, subdv. 1; Blake v. McClung, 172 U. S. 239, 43 L. ed. 432, 19 Sup. Ct. 165, 9 Am. & Eng. Corp. Cas. (N. S.) 385; Paul v. Virginia, 8 Wall. (75 U. S.) 168, 19 L. ed. 357. See § 67, herein. Compare Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582, 9 Am. & Eng. R. Cas. (N. S.) 792, 69 L. R. A. 875. Corporation aggregate cannot be a citizen; and can only litigate in Federal courts in consequence of the character of the individuals who compose the body politic; which character |