« EelmineJätka »
upon between said corporation and the General Coun. road to be elevated at the street crossings. It is true oil of the suid city of Louisville."
that it merely provides that any provisions in them Subsequent sections grant to the corporation, among in conflict with the amendment shall be void; but we other privileges, the right to connect its track with must presume that it was enacted with the fact in that of any other railroad terminating in the city of view that a portion of the road would have to be eleLouisville, and to give to any shipper along its route vated. In interpreting and giving effect to a statute, the right to side-tracks and switches, upon such terms the necessity, occasion, history of the times, and as may be agreed upon between bim and the transfer probable object of it are to be considered; and while company. A difference arose between it and the city this amendment did not re-enact the city ordinances as to the location of the road, and in the compromise relative to the elevation of the road at the street it was agreed, among other things, that the road, in crossings, yet it recognized the right of the company crossing First, Second and Third streets should be to build a road, which the ordinances thus referred to 80 elevated as to permit vehicles to pass under it. required to be elevated, and which the city council, To do this it became vecessary to build an elevated by virtue of section 3, supra, had the power to enact. railway along the Ohio river front of the city, and the Even if the power to build the road was questionable company being about to do this, the appellees, who prior to this additional legislation, yet this legislative are abutting lot-owners, brought this actiou to enjoin recognition of the right placed it beyond doubt. It it from either constructing or operating such a road must be presumed tbat the appellants own the fee in along and over Water street, from the middle line of the street, subject to the use by the public; and the First street to the middle line of Third street, upon question presents itself whether the easement exieting these grounds: First, that no legislative sanction had by virtue of the dedication of the street is of the same been given for the building of an elevated railway; nature as that granted to the company by the Legissecond, that the appellants owned the fee to the cen- lature. Its power to appropriate a part of the comter of the street adjoining their lots, subject only to mon highway to the purposes of a railroad, without the easement of the public in it as a street, and that making provision for compensation to the owner of any legislative grant of the right of way over it to the the fee, has been a fruitful subject of judicial conrailway company, without providing compensation flict. It has been urged that it is an additional burtherefor, was in violation of the constitutional provis. den-a new and distinct servitude--upon the estate, iou as to taking private property for public use;
inconsistent with the original dedication, and cannot third, that aside from the ownership of the soil, they, therefore be imposed without compensation to the as abutting lot-owners, bad the right to the unob- owner of the fee. Upon the other band, it is said that structed use of the street for travel, and for the pur- it is consistent with the dedication; that there is an pose of ingress and egress, to receive light and air identity of uses; and that the use of a part of a street thereby, and to enjoy their property free from any in- by a railway does not exceed the limit of the easement conveniences or injury special to them-such as the already belonging to the public. This conflict of opinjarring or substantial injury to their buildings; the ion merely arises from a difference of view as to the deprivation of light or air; the throwing of smoke, uses contemplated by the dedication of a street to sparks or ciuders into aud upon the houses already public use. upon some of the lots, or those which might be built Upon the one side oases may be found holding that upon the vacant ones; the disturbance to the occu- because the term "street" had acquired its meaning pants arising from the noise of passing trains, and the before railroads were in existence, therefore it can)invasion of all privacy by reason of their proximity; not be presumed that this character of use was inand that all these rights would be illegally invaded tended in the dedication; and if allowed, that the aud destroyed by the building of the road; and that limit of the easement is overstepped, and the private injunction is the appropriate remedy for their protec- property of the owner of the fee taken for public use, tiou.
which unless compensation be afforded, is inbibited The word "elevated" does not occur in the char- by the Constitution. In conflict with this view, many ter. It authorizes the company to construct and op
cases may be found which hold that the dedication of erate “a railroad” merely. It is therefore insisted, a street to public use coutemplates no particular mode that considering the time when the charter was of travel; that it embraces not only those then existgranted, it is improbable that the Legislature in- ing. but any that may spring up in this age of inventended to authorize the construction of any kind of a tion, and with advanced civilization; and that a railrailway save a surface one; that this intention is road, being but a new mode of travel, is consistent manifest from the charter provisions as to side tracks with the uses contemplated by the dedication, and and switches, and that corporation grants must be
does not overstep the limits of the easement already construed with all the strictness compatible with
in existence. In determining the proper uses of a their execution. It appears however that only a por- highway it seems to us to be immaterial whether the tion of appellee's road is “elevated;" and from abutting owner has the fee subject to the easement or the first introduction of railroads, portions of
not. The publio right embraces all modes of travel them have been elevated by reason of the topography consistent with the intended use. If compensation of the country or liability to foods or the grades de has been made for the easement, the subsequent apsirable in cities for the convenience and safety of the propriation to another mode of use, within the limit public. Certainly a company chartered to build a of the primary purpose, or one of a like kind, cer" railroad " merely would have the right to elevate it tainly should not require further compensation. In wherever the character of the country made it either this age of advancement a rule confining it to a preconvenient or essential; and the evidence shows that cise mode of use would be unreasonable. It bas even if this road was a surface one from First to Tenth been held that there is no new taking, when under street, it would frequently be submerged by the floods legislative sanction a plank road or a canal is conof the Ohio river.
verted into a highway or a railroad; and some jurists After the compromise was effected between the bave contended that when private property has been city and the company, and on April 1, 1882, the Legis- once taken for public use, and compensation made, the lature amended the charter in various respects; and Legislature may apply it to any public use, irrespect. this amendment refers to the ordinances of the city of ive of the special purpose for which it was taken. Louisville, which among other things required the
This view is based upon the idea, that in practice at least, whether the fee or an easement merely is ac- repair of the street; but there can be no such excluquired, the full value of the land taken is given as sive appropriation of it, even under legislative authorcompensation; but this doctrine is fraught with dau- ity, as to deprive him of its reasonable use. He is enger to private right, which although it may be that of titled to its reasonable use for all the ordinary modes the humblest citizen, it should be the pride of the ju- of passage. This is an easement attaching to his addiciary to uphold; and it seems to us that where a joining lot-an incident of his title to it, and he cangrant has been made for a specific use, that the sub- not be deprived of it without compensation. He howject of it should not be used for a foreign purpose, ever holds his property subject to the appropriation of without a vew legal taking, or the consent of the party the street by the public to such means of facilitating from whom it was derived, but that it may be ap- travel and commerce as will most redound to the pubplied to any new mode of use tending to the primary lic good; and it is only when this appropriation beor general purpose.
comes destructive of the purposes for which the street It was said by the Supreme Court in the case of was established, and he is deprived of its reasonable Barney v. Keokuk, 94 U. S. 340: “On the general ques- use for such purposes, that he can complain. Indeed tion as to the rights of the publio in a city street, we the right under legislative authority to permit the cannot see any material difference in principle, with construction and operation of a railroad by steam regard to the extent of those rights, whether the fee along or upon a street is not now an open question in is in the public or in the adjacent land-owner, or in this State, however much conflict of authority may some third person. In either case the street is legally exist elsewhere; and this without regard to whether open, and free for the public passage, and for such the fee subject to the public use is in the adjoining public uses as are necessary in a city, and do not pre- owner or not. Beginning with the case of the Lexing. vent its use as a thoroughfare, such as the laying of ton & 0. R. Co. v. Applegate, 8 Dana, 289, followed water-pipes, gas-pipes, etc."
with the cases of Wolfe v. Covington & L. R. Co., 15 Pierce on Railroads, 234, says: “The purpose of B. Mon. 409; Louisville & F. R. Co. v. Brown, 17 id. opening a highway or street is to provide the public 772; Newport & Cincinnati Bridge Co. v. Foote, 9 Bush, with a right of passage for persons on foot or riding 264; Cosby v. Owensboro & R. R. Co., 10 id. 288; Elizain carriages or other kinds of vehicles. The use for bethtown, L. & B. S. R. Co. v. Combs, id. 382; and which this public right is obtained is not confined to Jeffersonville, M. & I. R. Co. v. Esterle, 13 id. 675—this the same species of vehicles, drawn by the same kind doctrine has been repeatedly announced, and must of power, that prevailed at the time of the dedication wow be regarded as firmly established in Kentucky, of the appropriation, but admits of the passage and and we think it is supported by reason and public nerepassage of such other vehicles, operated in such a cessity, while at the same time individual right is pre mode and by such forces as an advanced civilization served. may require for the general convenience. The im- It follows that the construction of a railroad along proved method of conveyance may incidentally in- a street is not per se an encroachment upou the indicrease or depreciate the value of the property on the vidual right of the abutting lot-owner, and whether he highway; but provided the right of ingress and egress, can complain depends, not upon the fact of its existof passage and repassage, is left reasonably free to the ence, but the manner of its construction and its operadjoining owner, the injury is one which the law does ation. If he is thereby deprived of its reasonable use, not recognize. A railroad laid out over or upon a he may appeal to the courts for relief; but if he is highway or street, under proper legal authority, is merely inconvenienced thereby, or suffers some rewithin the legal intent of the original sequestration or mote consequential injury, is is damnum absque inju. dedication, and is not an invasion of private right en- ria. titling the owner to compensation by virtue of the The structure in this case, at the point where it is constitutional prohibition, provided it is so laid out sought to enjoin its construction, will be about 13% and constructed as not to be incompatible with the feet high, supported by iron pillars 16 inches in diame. use of the highway in the other usual modes of pas- ter, and from 25 to 30 feet apart; and where they are sage and conveyance. It is not necessarily a nuisance, in the street there is ample roadway upon each side of even in a large city, although it may to a certain ex. them, while where they are in the sidewalk they leave tent interrupt the free passage of other kinds of vehi. ample room for passage, and we fail to see that there cles; and unless unreasonable, or permanently exclu- is any unreasonable obstruction or exclusive approsive in its occupation of the highway, when author- priation of the street, while the character of the proized by competent authority, it is not an invasion of posed structure is such that it is not likely to mateprivate rights." The writer cites numerous cases in rially interfere with the passage of either light or air. support of the text.
Before leaving this branch of the case it is proper to The design of a railroad is to facilitate travel. It suggest that in the cases of the Louisville & F. R. Co. therefore subserves the object of a street dedication v. Brown, supra; Newport & Cincinnati Bridge Co. v. instead of destroying it. It may therefore under leg- Foote, supra; and Cosby v. Owensboro & R. R. Co., islative sanction have a joint occupancy of a street supra, the railroad was elevated either by a solid wall with other modes of travel having the same end in or an embankment, or was pro tanto an exclusive apview; but it cannot occupy or use it to the unreason- propriation of the street; but as it was not unreasonable exclusion or obstruction of such other modes. ably obstructed, the complaint of the abutting lotThe limitation upon the public right is that the appro- owners was not sustained. The road, the coristrucpriation of the street must not be inconsistent with tion of which is now sought to be enjoined by reason the end for which it was established. Whether the of its manner of elevation, will afford less obstruction abutting lot-owner owns the fee in the street subject than did the building of the roads in those cases. to the public use, or does not, he, as such adjacent It is urged however that it will be specifically inproprietor, has however a peculiar private right in the jurious to the adjacent lot-owners, and in a substanstreet which attaches to his lot. He has a peculiar tial degree, because it will jar their buildings, weaken use in the street, as appurtenant to his tenement, in their foundations, throw sparks, smoke and cinders order that he may enjoy it. This right is as much bis into them by reason of their proximity; destroy their property as the lot itself. He can claim no damage by privacy, and render them untenantable; and that reason of mere inconvenience, or a consequential de
these substantial injuries peculiar to them, and to cline in value of property or rents arising from the
which the general public are not liable, authorize the interposition of preventive equity. It is true that it is from individuals; and on payment or tender of the not the amount of pecuniary injury which authorizes usual charge, according to the regulations of such comsuch relief. If the injury goes to the substance of the pany, shall transmit the same with impartiality and right, and is of such a character that reasonable re- good faith, and in the order of time in which they are dress cannot be had at law, the chancellor will, with received, under penalty, in case of failure to transmit, the arm of equity, stay the impending wrong. or if postponed out of such order, of $100, to be reWhether any special and substantial injury will result covered by the person whose dispatch is neglected or to the adjoining owners in this instance is however as postponed; provided however that arrangements may get a mere matter of speculation, and if any, its char- be made with the publishers of newspapers for the acter and extent cannot be ascertained. If such transmission of intelligeuce of general and public inshould accrue, its extent can be mucb better esti- terest out of its order, and that communications for mated after the road is in operation, and at most and from officers of justice shall take precedence it would be a matter of mere damage for which of all others" ($ 4176, Rev. Stat. Ind. 1881); and that the law affords an adequate remedy. Undoubt-“such companies shall deliver all dispatches, by mesedly if the structure shall be 80 located as to senger, to the persons to whom the same are addressed, unreasonably obstruct the abutting lot-owner's or to their agents, on the payment of any charges due means of egress and ingress from and to his lot, or if for the same; provided such persons or agents reside he suffers substantial injury by having smoke, sparks within one mile of the telegraphio station, or within or cinders thrown into his house, or its walls be the city or town in which such station is ($ 4178, id). cracked by the movement of heavy trains, he would The present action is brought by William Pendleton, be entitled to recover for damages directly resulting | the plaintiff below, to recover of the Western Union from such causes. This is because a private right Telegraph Company the penalty of $100 prescribed by would then be in vaded, and a direct substantial dam- the above statute, for failing to deliver at Ottumwa, in age sustained. Jefferson, M. & I. R. Co. v. Esterle, Iowa, a message received by it in Indiana, for trans. supra, and Elizabethtown, etc., R. Co. v. Combs, supra. mission to that place. The complaint, as finally amenIt was said however in the case of Lexington & 0. R. ded, alleges that the defendant below, the Western Co. v. Applegate, supra: “But both public policy and Union Telegraph Company, is a corporation organized a long series of adjudged cases require that a public and subsisting under the laws of Indiana, with a line improvement so beneficent in its general operations of wires from Shelbyville, in that State, to Ottumwa, and results, and more especially when, as in this case, in Iowa; that on the fourteenth of April, 1883, at sanctioned by the egislature and the representatives thirty-five minutes past five o'clock in the afternoon, of the local public, should not be destroyed or sus- at which time the company was engaged in telegraphpended by the injunction of a chancellor, unless strong ing for the public, the plaintiff delivered to its agent, reasons for doing it be conclusively manifested." This at its office in Shelbyville, the following telegram for reason applies with peculiar force in this instance. transmission to its office in Ottumwa, viz: The proposed work is one likely to redound largely to
“ APRIL 14, 1883. the public interest, and that of a commercial metropo- “To Rosa Pendleton, care James Harker, near City lis. The road will conneot the railroads coming into Grave-Yard, Ottumwa, Iowa: Have you shipped the city upon one side with those reaching it upon the things? If not, don't ship. Answer quick. other, thus supplying, as is shown by the testimony, a
WM. PENDLETON.” now much-needed connection; while upon the other
That upon its delivery, the plaintiff paid the agent hand, it is as yet a matter of conjecture what injury, sixty cents, being the amount of the charge required if any, will accrue to the lot-owner, and if any, he is
for its transmission from Shelby ville to Ottumwa; pot remediless. The law of course will not override
that without any fault or interference on his part, the individual right in order that a public benefit may
company, after transmitting the message to Ottumwa, accrue; but under such circumstances the facts should
where it was received at half past seven in the afterbe clearly shown, and the ground made manifest be
noon of that day, failed to deliver it either to Rosa fore the chancellor should interpose.
Pendleton or to James Harker, whereby the plaintiff Judgment affirmed.
sustained damage and the defendant became liable for $100, under the statute of Indiana, for which sum
plaintiff demands judgment. CONSTITUTIONAL LAW-INTER-STATE COM- To this complaint the company answered, admitMERCE-TELEGRAPHIC MESSAGES. ting the receipt of the telegram as alleged, and setting
up that it transmitted the message with impartiality UNITED STATES SUPREME COURT, MAY 27, 1887. and good faith, in the order of time in which it was
received, and without delay, to its office iu Ottumwa, WESTERN UNION TEL. Co. v. PENDLETON.* Iowa, where it was received, as alleged, at half past Rev. Stat. Ind. 1881, $ 4176, prescribing the order in which seven of that day; that James Harker, to whose care telegraphic dispatches shall be sent, and section 4178, re
the message was directed, lived more than one mile quiring the delivery, by messenger, of such dispatches, if
from the telegraph station at Ottumwa; that in acthe person to whom they are addressed, or their agents,
cordance with the usual custom of the office, the mesreside within one mile of the station, or within the city or
sage was, without delay, placed in the post-office of town in which it is located, are invalid with respect to
that town, with proper stamps thereon, and duly addispatches to be delivered in other States, as an interfer
dressed; aud that the telegram was received by the ence with inter-State commerce.
person to whom it was addressed on the following IN error to the Supreme Court of the State of Indi- morning, April 15, 1883, at about nine o'clock. The
answer further set forth that the duties and liabilities
of telegraph companies in Iowa, and the transmission The statute of Indiana declares that “every electric and delivery of the telegrams within the State, are telegraph company, with a line of wires wholly or partly in this state, and engaged in telegraphing for regulated by a special statute of that State, which is
as follows, viz. : * Any person employed in transthe public, shall during the usual office hours, receive
mitting messages by telegraph must do so without dispatches, whether from other telegraphing lines or
unreasonable delay, and any one who willfully fails *7 Supreme Court Reporter, 1126.
thus to transmit them, or who intentionally transmits
a message erroneously, or makes known the contents jects of commerce the regulation of Congress is excluof any message sent or received to any person except sive, and indicated on what subjects the States may him to whom it is addressed, or to his agent or attor- exercise a concurrent authority until Congress interney, is guilty of a misdemeanor. The proprietor of a venes and assumes control. Cooley v. Board of War. telegraph is liable for all mistakes in transmitting dens of the Port of Philadelphia, 12 How. 299 ; Gilman messages made by any person in his employment, and v. Philadelphia, 3 Wall. 713; Crandall v. Nevada, 6 id. for all damages resulting from a failure to perform any 35; Welton v. State of Missouri, 91 U. S. 275; Henderother duties required by law.” That by that statute son v. Mayor of New York, 92 id. 259; Inman S. S. Co. the defendant was not required to deliver telegrams by v. Tinker, 94 id. 238; Hall v. De Cuir, 95 id. 485; County messenger to the persons to whom they were ad- of Mobile v. Kimbali, 102 id. 691; Transportation Co. dressed. That in the city of Ottumwa it had estab- v. Parkersburgh, 107 id. 691; Gloucester Ferry Co. v. lished a certain district within which it delivered Pennsylvania, 114 id. 196; Wabash Șt. L. & P. Ry. Co. telegrams by messenger, and that on the receipt of the v. Illinois, 118 id. 557 ; and Robbins v. Shelby Taxingtelegram in question at Ottumwa, it was ascertained Dist., 120 id. 489, 493. But with reference to the new that Harker, to whom it was addressed, did not re- species of commerce, consisting of intercourse by teleside within the delivery distriot, but outside of it, and graphic messages, this court has only in two cases been more than one mile from the defendant's office, and that called upon to inquire into the power of Congress and in accordance with the custom and usage of the office, of the State over the subject. In Pensacola Tel. Co. and in order to facilitate the delivery of the message, W. U. Tel. Co., 96 U. S. 1, this court had before it the a copy of the telegram was promptly placed in the post- act of Congress of July 24, 1866 (14 St. 221), “to aid in office at Ottumwa, with proper address, and delivered the construction of telegraph lines, and to secure the as stated above.
use of the same for postal, military and other purTo this answer the plaintiff demurred; the Circuit poses;” and it is held that the act was constitutional Court of the State sustained the demurrer, and the so far as it declared that the erection of telegraph defendant electing to stand upon its answer, judg-wires should, as against Stato interference, be free ment was rendered for the plaintiff for $100, which on to all who accepted its terms and conditions, and that appeal to the Supreme Court of the State was affirmed,
a telegraph company of one State accepting them, and the company brings the case here for review, could not be excluded by another State from prosecuJ. E. McDonald, John M. Butler and Augustus L.
ting its business within her jurisdiction. In TeleMason, for plaintiff in error.
graph Co. v. Texas, 105 U. 8. 460, from the opinion in
which we have quoted above, it was held that a statNo appearance for defendant in error.
ute of Texas imposing a tax upon every message trans
mitted by a telegraph company doing business within FIELD, J. The contention of the Western Union its limits, so far as it operated on messages sent out of Telegraph Company is that the law of Indiana is in the State, was a regulation of foreign and inter-State co:flict with the clause of the Conetitution vesting in commerce, and therefore beyond the power of the Congress the power to regulate commerce among the State. States.
In these cases the supreme authority of Congress In Telegraph Co. v. Texas, 105 U. S. 460, it was de- over the subject of commerce by the telegraph with cided by this court that intercourse by the telegraph foreign countries or among the States is affirmed between the States is inter-State commerce. Its wbenever that body chooses to exert its power; and it language was. “A telegraph company occupies the is also held that the States can impose no impedisame relation to commerce as a carrier of messages, ments to the freedom of that commerce. In conformthat a railroad company does as a carrier of goods. ity with these views, the attempted regulation by Both companies are instruments of commerce, and Iudiana of the mode in which messages sent by teletheir business is commerce itself. They do their graph companies doing business within her limits transportation in different ways, and their liabilities shall be delivered in other States cannot be upheld. are in some respects different, but they are both in- It is an impediment to the freedom of that form of dispensable to those engaged to any considerable inter-State commerce, which is as much beyond the extent in commercial pursuits."
power of Indiana to interpose as the imposition of a Although intercourse by telegraphic messages be- tax by the State of Texas upon every message transtween the States is thus held to be inter-State com- mitted by a telegraph company within her limits to merce, it differs in material particulars from that por- other States was beyond her power. Whatever tion of commerce with foreign countries and between authority the State may possess over the transmission the States which consists in the carriage of persons and delivery of messages by telegrapb companies and the transportation and exchange of commodities, within her limits, it does not extend to the delivery upon which we have been so often called to pass. of messages in other States. It differs not only in the subjects which it transmits, The object of vesting the power to regulate combut in the means of transmission. Other commerce merce in Congress was to secure, with reference to its deals only with persons, or with visible and tangible subjects, uniform regulations, where such uniformity things. But the telegraph transports nothing visible is practicable, against conflicting State legislation. and tangible; it carries only ideas, wishes, orders and Such conflicting legislation would inevitably follow intelligence. Other commerce requires the constant with reference to telegraphic communications beattention and supervision of the carrier for the safety tween citizens of different States, if each State was of the persons and property carried. The message of vested with power to control them beyond its own the telegraph passes at once beyond the control of the limits. The manner and order of the delivery of telesender, avd reaches the office to which it is sent in- grams, as well as of their transmission, would vary stantaneously. It is plain, from these essentially according to the judgment of each State. Indiana as different characteristics, that the regulations suitable seen by its law given above, has provided that comfor one of these kinds of commerce would be entirelymunications for or from officers of justice shall take inapplicable to the other.
precedence, and that arrangements may be made with In the consideration of numerous cases, in which publishers of newspapers for the transmission of inquestions have arisen relating to ordinary commerce telligence of general and publio interest out of its with foreign countries and between the States, the order; but that all other messages shall be transmitted court has reached certain conclusions as to wbat sub- in the order in which they are received; aud punishes as an offense a disregard of this rule. Her attempt, by C. T. Russell, Jr., for plaintiff. penal statutes, to enforce a delivery of such messages
C. J. McIntire, for defendants. in other States, in conformity with this rule, could hardly fail to lead to collision with their statutes.
DEVENS, J. The case at bar is an action of tort Other States might well direct that telegrams on many against the registrars of voters in the city of Camother subjeots should have precedence in delivery bridge, to recover damages for wrongfully refusing, as within their limits over some of these, such as tele- the plaintiff alleges, to register him as a voter for the grams for the attendance of physicians and surgeons State election of 1886. The demurrer to the plaintiff's in case of sudden sickness or accident, telegrams call- declaration having been sustained, the case is before ing for aid in case of fire or other calamity, and tele
us upon the report of the learned judge who presided. grams respecting the sickness or death of relatives.
It raises but a single question, but one of much imporIndiana also requires telegrams to be delivered by
tance. The defendants refused to register the plainmessengers to the person to whom they are addressed, tiff because he had been naturalized within thirty if they reside within one mile of the telegraph station, days previous to his application for registration. They or within the city and town in which such station is;
were fully justified in so doing, under the seventh and the requirement applies, according to the decision section of the acts of 1885, chap. 345, if the provisions of its Supreme Court in this case, when the delivery is
of this section are constitutional. This section to be made in another State. Other States might con
enacts that" no person hereafter naturalized in any clude that the delivery by messenger to a person liv
court shall be entitled to be registered as a voter ing in a town or city being many miles in extent was
within thirty days of such naturalization.” By natan unwise burden, and require the duty within less uralization the plaintiff became, eo instante, a citizen limits; but if the law of one State can prescribe the
of the United States, and therefore a citizen of the order and manner of delivery in another State, the State of bis residence. By the fourteenth amendment receiver of the message would often find himself in
to the Constitution of the United States, “all persons curring a penalty because of conflicting laws, both of born or naturalized in the United States, and subject which he could not obey. Conflict and confusion to the jurisdiction thereof, are citizens of the United would only follow the attempted exercise of such a
States, and the State wherein they reside. No State power. We are clear that it does not exist in any
shall make or enforce any law which shall abridge the State.
privileges or immunities of citizens of the United The Supreme Court of Indiana placed its decision States." in support of the statute principally upon the ground
The right or privilege of voting is a right or privilege that it was the exercise of the police power of the arising under the Constitution of each State, and not State. Undoubtedly, under the reserved powers of under the Constitution of the United States. The the State, which are designated under that somewhat
voter is entitled to vote in the election of officers of ambiguous term of “police powers," regulations may
the United States by reason of the fact that he is a be prescribed by the State for the good order, peace,
voter in the State in which he resides. He exercises and protection of the community. The subjects upon
this right because he is entitled to by the laws of the which the State may act are almost infinite, yet in its
State where he offers to exercise it, and not because regulations with respect to all of them there is this he is a citizen of the United States. U. S. v. duthony, liecessary limitation, that the State does not thereby 11 Blatchf. 200. What are the rights of citizens of the encroach upon the free exercise of the power vested in
United States as such and not as citizens of particular Congress by the Constitution. Within that limitation, States, need not be here considered. They have reit may undoubtedly make all necessary provisions peatedly been discussed and defined. Corfield v. Corwith respect to the buildings, poles and wires of tele- yell, 4 Wash. C. C. 371; Ward v. Maryland, 12 Wall. graph companies in its jurisdiction, which the comfort 418-430; Paul v. Virginia, 8 id. 168; Slaughter-House and convenience of the community may require.
cases, 16 id. 36. It follows from the views expressed that the judge
The qualifications of voters are fixed by State legislament of the court below must be reversed, and the tion. The requisitions as to ownership of property, cause remanded for further proceedings not inconsis-citizenship, sex, residence, in connection with the tent with this opinion; and it is so ordered.
right of voting, vary with the Constitution or laws of the several States. However unwise, unjust, or even tyrannical its regulations may be, or seem to be, in
this regard, the right of each State to define the CONSTITUTIONAL LAW ELECTIVE qualifications of its voters is complete and perfect, FRANCHISE - NATURALIZATION
except so far as it is controlled by the fifteenth amend REGISTRATION.
ment to the Constitution of the United States, which
provides that “the right of citizens of the United SUPREME JUDICIAL COURT OF MASSACHUSETTS,
States to vote shall not be devied or abridged by the MAY 11, 1887.
United States, or by any State, on account of race, color, or previous condition of servitude."
The question whether the seventh section of the KINEEN V. WELLS.
acts of 1885, chap. 345, is constitutional must be decided A statute which in addition to the requirements of the Con
by determining whether this legislation is in constitution provides that“ no person hereafter naturalized
formity with the Constitution of this Commonwealth, in any court shall be entitled to be registered as a voter
or whether it adds any thing to the qualifications within thirty days of such naturalization," is unconstitu
which the voter is thereby required to possess, and tional.
thus interferes with the enjoyment of the rights with )ᎡᎢ
to recover damages for wrongfully refusing to The amendment of 1825 to the Constitution of register the plaintiff as a voter for the State election , Massachusetts is as follows: “Every male citizen of of 1886. The defendants demurred to the declaration, twenty-one years of age and upwards, except paupers and in the Superior Court, before Thompson, J., the and persons under guardianship, who have resided demurrer was sustained, and the case reported to the within the Commonwealth one year, and within the Supreme Judicial Court. The facts material to the town or district in which he may claim a right to vote decision appear in the opinion.
six calendar months next preceding any election of