ment.

the exercise of the discretion, which the law had reposed in them within certain limits, of fixing the quantum of punishWe are willing to concede this, since it is urged by our correspondent, although it involves the court in the nonsense of reversing a judgment for the purpose of admitting evidence to guide the jury in doing what they had already done; for they had already fixed the punishment of the accused at the lowest limit allowed by law for the degree of crime of which they found him guilty. Conceding, then, this to be the ground of the ruling on this point, what result does it necessarily involve? It necessarily involves the conclusion--and this seems to us the doctrine which, under this view, the case necessarily decides-that where a man deliberately kills another out of revenge for a previous insult, if it turns out that the “general character of the deceased for turbulence, violence, bloodshed and recklessness of human life" was bad, the slayer ought not to be punished as severely as though the general character of the slain in these particulars was good. We can not see but that this result is substantially the same as that stated by us in our previous observations upon this case. Mr. WHARTON Says-and his language has been many times quoted by judges with approbation-that "it would be a barbarous thing for A. to give as a reason for killing B., that B.'s disposition was savage and riotous.” 1 Whart. Crim. Law, 7th ed., § 641. We think it would be equally barbarous to allow a man who has deliberately killed another out of revenge to urge in mitigation of his punishment that the deceased was a man of "general bad character for turbulence, violence, bloodshed and recklessness of human life." Such a man, until he is convicted of crime, is entitled to the same measure of protection before the law as the best or most exemplary citizen; and any rule of law which punishes the murderer of such a man less severely than the murderer of a good man, makes him unequal with the latter before the law, in respect of the right to live, and correspondingly diminishes that protection which the laws of his country promise to every citizen, without respect of persons.

justly do so. It would seem, however, to argue most forcibly that where such a state of things exists, the barriers which the common law has erected for the safety of society should be by the courts vigiantly guarded and preserved.

Upon the second point adverted to by our correspondent, we cheerfully concede, upon a re-examination of the case, that the language of the learned Chief Justice that the "circumstances of the killing should be viewed in connection with the good or bad character of both the defendant or the deceased," probably had reference to the circumstance of the particular case, the good character of the deceased having been put in evidence; although this remark was not made in connection with that part of the opinion which discusses the error of the court below in charging upon evidence of the good character of the defendant.

The Validity of Exemption Laws which Operate upon Existing Contracts.

We publish elsewhere a brief opinion of the Supreme Court of South Carolina in the case of Cochran v. Darcy, the importance of which consists in the threefold fact that it reverses a wellconsidered decision of the same court in the case of Re Kennedy, 2 South Car. N. S. 216; that it interprets the decision of the Supreme Court of the United States in Gunn v. Barry, 15 Wall. 610, as going to the extent of holding that exemption laws which operate upon contracts in existence at the time of their passage are void; and that, in following this interpretation of that case, it runs counter to the weight of adjudications in other states.

With respect to Gunn v. Barry, there seems to be room to question whether it goes to the extent of holding that exemption laws which operate retroactively upon contracts in existence at the time of their passage are to that extent unconstiIt does hold that where a person has tutional and void. obtained a judgment, which by the law of the state is a lien upon the realty of the judgment debtor, a homestead law enacted subsequently to the rendition of such judgment and But we apprehend that every judge and criminal practi- before the levy of execution, which seeks to discharge the tioner is aware that questions of this kind are generally sprung debtor's property from such lien, is so far unconstitutional and as mere devices to excite the sympathies of ignorant jurors void, and does not abridge the jurisdiction of the state courts and to distract their attention from the real issues of the case. to afford the judgment creditor satisfaction out of such propIn England and in some of the American states where the erty. This was the precise point in judgment, and this is what rights of society in criminal trials are guarded, and where the learned reporter, in writing his head-note to the case, judges are accustomed to hold juries well in hand, we appre- manifestly understood to be the scope of the question decided. hend that no advocate of repute would attempt to get in such But while this is true, it is possible that Mr. Justice SWAYNE, testimony under the circumstances of Fields' case. But in pronouncing the opinion of the court, used language strong where an unchecked rein is given to the advocate, he is never enough to warrant the deduction which the Supreme Court of He says: wanting in devices to perplex the judgment and excite the South Carolina make as to what the case decides. emotional nature of the ignorant and weak juror. He plays "The effect of the act in question, under the circumstances upon him as he would upon a musical instrument, and brings of this judgment, does not merely impair, it annihilates the forth any desired sound. "Govern the ventages with your remedy. There is none left. But it reaches still further. It fingers and thumb; give it breath with your mouth, and it withdraws the land from the lien of the judgment, and thus will discourse most eloquent music." destroys a vested right of property which the creditor had We may be permitted to note, in conclusion, that in run-acquired in the pursuit of the remedy to which he was entitled ning over the 47th volume of Alabama Reports a second time, we find in it no less than ten murder cases. Of these, one comes up on a point of practice-a motion for a discontinuThe other nine are appealed from judgments of conviction of felonious homicide in some of its degrees; and of these nine, eight are reversed. We shall not undertake to draw any inference from this fact. At this distance we could not

by the law as it stood when the judgment was recovered. It is, in effect, taking one person's property and giving it to another without compensation. This is contrary to reason and justice and to the fundamental principles of the social compact. * * The legal remedies for the enforcement of a contract, which belong to it at the time and place where it is made, are a part of its obligation. A state may change them,

provided the change involve no impairment of a substantia they apply to contracts entered into or debts contracted before their adoption, are in violation of the constitution of the United States, and therefore void. The Homestead Cases, 22 Grattan, 266. And the same conclusion appears to have been reached in Kentucky with reference to an exemption law of that state, in Kibbey v. Jones, 7 Bush, 243

right. If the provisions of the constitution or the legislative act of a state fall within the category last mentioned, they are to that extent utterly void. They are, for all the purposes of the contract they impair, as if they had never existed. The constitutional provision and statute here in question are clearly within that category, and are therefore void."

*

*

Some of the cases, however, which affirm the validity of If from this language, taken in connection with the facts of the retroactive features of such laws, contain language limitthe case, Gunn v. Barry is to be understood as deciding that ing the legislative power to the enacting of exemption laws homestead laws which by their terms operate upon contracts which are reasonable, and which go no farther than to make in existence at the time of their passage, are, so far as they an exemption consistent with the humane grounds of pubthus operate retroactively, void, without reference to the ques- lic policy in pursuance of which such enactments are sustion whether a judgment lien has attached to the property tained. Thus, in Stephenson v. Osborne, 41 Miss. 119, 130. prior to the passage of the exemption law, it is contrary to the ELLET, J., delivering the opinion of the court, said: "The understanding of several of the earlier judges of the same court, legislature exercises this power according to its own views of as expressed in dicta which have been quoted and relied on humanity and sound policy. But it is not without its proper by the state courts in numerous instances. Thus, in Bronson limit, and it may be abused. Every party is entitled to an v. Kinzie, 1 How. 311, 318, Chief Justice TANEY said: "A adequate and available remedy for the enforcement of his state may regulate at pleasure the modes of proceeding in its contract, and any legislation which impairs the value and courts in relation to past contracts as well as future. benefit of the contract, though professing to act on its remIt may, if it think proper, direct that the necessary implements edy, would impair its obligation. It is not competent for the of agriculture, or the tools of a mechanic, or articles of neces-, legislature, under color of an exemption law, so to obstruct sity and household furniture, shall, like wearing apparel, not the remedy upon contracts as to render it nugatory or imbe liable to execution on judgments. Regulations of this de- practicable. An abuse of the legislative discretion in this scription have always been considered, in every civilized com- respect would demand the interposition of the court. We do munity, as properly belonging to the remedy, to be exercised or not undertake to intimate what would amount to such abuse; not by every sovereignty according to its own views of policy such a question would be one of great delicacy and difficulty. and humanity. It must reside in every state to enable it to secure We only mean to say that the power of the legislature over its own citizens from unjust and harassing litigation and to pro- this subject is not unrestricted by the constitution, and that tect them in those pursuits which are necessary to the existence cases may arise in which it will be the duty of the judiciary and well-being of every community. And although a new remto arrest its exercise." So in the case in Kansas, the court edy may be deemed less convenient than the old one, and may say, per CROZIER, Ch. J.: “It must not be inferred that a in some degree render the recovery of debts less tardy and diffi-, state is omnipotent upon this subject, and that if it can fix cult, yet it will not follow that the law is unconstitutional." In the amount at one acre in a town, it may increase it to ten or the later case of The Planters' Bank v. Sharp, 6 How. 301, 330, twenty acres, and in a like proportion in the country. Its Mr. Justice WOODBURY enumerates laws exempting tools or action will not be constitutional if it be apparent that its obhousehold goods from seizure as an example of legislation re-ject was not so much to secure the well-being of the citizens specting the remedy which might be applied to existing contracts. And so in Ogden v. Saunders, 12 Wheat. 213, 291, Mr. Justice JOHNSON says that "it is equally the duty and right of governments to impose limits to the avarice and tyranny of individuals, so as not to suffer oppression to be exercised under the semblance of right and justice."

The same views have been taken by the courts of last resort in several of the states. Bigelow v. Pritchard, 21 Pick. 169; Rockwell v. Hubbell, 2 Doug. (Mich.) 197; Morse v. Goold, 11 N. Y. 281 (overruling Quackenbush v. Danks, 1 Denio, 128, 3 Denio, 594, and 1 N. Y. 129); Cusic v. Douglas, 3 Kansas, 123; Maxey v. Loyal, 38 Ga. 531; Hardiman v. Downer, 39 Ga. 425; Hill v. Kessler, 63 N. C. 437; Farley v. Dowe, 45 Ala. 324; Sneider v. Heidelberger, ibid, 126; Stephenson v. Osborn, 41 Miss. 119. In the case in Alabama the exemption law of that state (Code of Ala., § 2955) is held

to be retroactive and to divest the lien of an attachment levied before its passage, but is, nevertheless, held to be constitutional and valid. Sneider v. Heidelberger, supra. The Court of Appeals of Virginia, however, has, in a recent exhaustive opinion by CHRISTIAN, J., in which all the judges concur, decided that the provision in the constitution of that state and the act of the general assembly passed in pursuance thereof, known as the homestead exemption law, so far as

as to enable them to hold large amounts of property with a view of making it available to their own aggrandizement for other purposes than that of homesteads. The state is the sole judge of the proper extent of the exemptions within the limits above indicated; and so long as the extent of the exemption shall be in accordance with sound policy and humanity, and no greater than shall be reasonably necessary to protect the citizens in their pursuits necessary to their existence and well-being, its action must be sustained, although it may here and there work an individual hardship." Cusic v. Douglas, supra. So in Re Kennedy, supra, the court (WILLARD, J.) assert that "it is within the power of the state to exempt the lands and personal property of a debtor, to a limited amount, from liability on account of an existing indebtedness, so long as such exemption does not, in effect and intention, impair the obligation of such contract.”

For the opinion in Cochran v. Darcy, which we elsewhere publish, we are indebted to William Stone, Esq., counsellor at law, of Charleston, South Carolina.

threatens to sue the Cincinnati Commercial for libel, on account of some ---JUDGE R. B. WARDEN, one of the biographers of Chief Justice Chase, criticism of his conduct by that journal in connection with the use made by him of certain papers of Chief Justice Chase.

Legislative Exemption of Railway Property from
Taxation-The Iron Mountain Railroad Case.
SPENCER TRASK v. CONSTANTINE MAGUIRE, THE ST.
LOUIS AND IRON MOUNTAIN RAILROAD COMPANY,
THOMAS ALLEN, S. H. LAFLIN, G. B. ALLEN, SAM-
UEL COPP, S. GANDY, A. TRASK, AND H. G. MAR.
QUAND.

The terms "stock of the

strike us as possessing much force.
company" imported the capital stock of such company, the sub-
scribed fund which the company held, as distinguished from the
separate interests of the individual stockholders. The language
of the amendatory act did not qualify this meaning; that only
declared that other property of the company should also be
deemed capital stock, and the additional provision that it should
be vested in the respective shareholders, according to their re-
spective shares, only meant that they should have the interest of

Supreme Court of the United States, No. 106, October Term, 1873 shareholders in the property, according to their respective shares.

-

1. Iron Mountain Railroad-Exemption from Taxation. The property of the present Iron Mountain Railroad Company, created in 1867, is not exempt from the power of state taxation; but it was otherwise as to the property of the first corporation by that name, created in 1851.

2.

3.

this prohibition the legislature, although it undertook to confer upon the present company all the immunity from taxation which the old company enjoyed, had no power to do so.

The corporation in question was created to constuct a railroad from a point in the city of St. Louis to the Iron Mountain and Pilot Knob, in Missouri, with liberty to extend the road to the Mississippi river, or to the southern part of the state. The When the Exemption ceased -The exemption in favor road was constructed from St. Louis to Pilot Knob, a distance of of the original company from taxation ceased when the state toreclosed its statutory mortgage or lien, under the act of February 19, 1866, and purchased the property. about eighty-seven miles, with a branch to Potosi. During the New Constitution of Missouri.-Effect of its Prohibi- progress of the work, and in order to aid in its construction, the tion against Exemptions from Taxation.-In July, 1865, the new constitution legislature of the state, previous to 1860, passed various acts proof Missouri went into effect, by which (art 11, sec. 16) the legislature is absolutelyviding for the loan of the bonds of the state to the company. All prohibited to grant to railroad companies an immunity from taxation; and under the acts referred for the terms of the loans to an act passed in 1851 to expedite the construction of the Pacific railroad and of the Hannibal and St. Joseph railroad. (Laws of Missouri of 1851, p. 267.) That act provided that no part of the bonds should be delivered to the company until it signified its acceptance of them to the secretary of state, by filing in his office a certificate of such acceptance under the corporate seal of the company and the signature of its president; that such acceptance should be recorded, and upon its record should become to all intents and purposes a mortgage of the road of the company, and every part and section thereof, and its appurtenances, to the people of the state, to secure the payment of the principal and interest of the bonds. That act authorized the governor, in case default was made in the payment of either the interest or principal of the bonds, to sell the road and its appurtenances at auction to the highest bidder, or to buy in the same at such sale for the use and benefit of the state, subject to such disposition in respect to the road or its proceeds as the legislature might thereafter direct.

Appeal from the Circuit Court of the United States for the Districts of Missouri. A brief report of the case in the court below will be found in 2 Dillon C. C. R. 182, note.

Mr. Rombauer, for the collector; Messrs. Dryden & Dryden, for the Iron Mountain Railroad Company.

Mr. Justice FIELD delivered the opinion of the court. The question presented for our determination in this case is, whether the property of the present St. Louis and Iron Mountain Railroad Company, a corporation created under the laws of Missouri, is, by an irrepealable legislative grant, forever exempted from all state and county taxes. Two corporations bearing that name have existed in Missouri, the second succeeding the first in the possession and ownership of its road and property. The first was created by an act of the legislature of the state, passed in March, 1851; the second was formed in July, 1867, under an act of the previous year authorizing the incorporation of the purchaser or purchasers of any railroad, or any part, section, or branch thereof, which had previously been, or might thereafter be, forfeited to or sold by the state.

Under the different acts, bonds of the state to a large amount were issued to the company; its acceptance of them in proper form was given to the secretary of state, and the acceptar ce was duly recorded, and from the date of such record the state acquired, for the payment of the principal and interest of the bonds, a lien upon the road and every part and section thereof and its appurtenances.

The company failed to pay the interest on these bonds. It does not appear for how long a period the company was thus in default, nor is this material. It is sufficient to say that in 1865 the right of the state, under the provisions of the acts cited, to interfere and sell the property, had become complete. Before a sale, however, was made the legislature passed another act for the sale of this and other railroads by the govenor, and the foreclosure of the state lien thereon. This act, which was approved

The property of the first corporation was undoubtedly exempt from state and county taxes. The act of incorporation adopted as part of it a provision of another act, which declared in terms that the stock of the company should be thus exempt. (Laws of Missouri of 1851, p. 479.) It is true that at this time a statute was in existence, passed in 1845, which declared that the charter of every corporation subsequently granted should be subject to alteration, suspension, and repeal at the discretion of the legislature. But from the operation of this provision the company was expressly exempted by an act amendatory of its charter, passed in 1853. (Laws of Missouri, of 1853, p. 296.) From that time at least the ex-in February, 1866, among other things required the governor to ademption of its stock from state and county taxation was placed beyond legislative interference. The amendatory act also declared that all the engines, cars, wagons, machines, and other property belonging to the company should be deemed a part of its capital stock, and be vested in its respective shareholders, according to their respective shares. All the property of the company was thus placed within the exemption which attached to the original stock; that designated was to be deemed a part of such stock, as well as that originally embraced by this term.

On the argument some attempt was made from the use of the term stock in the original act, and the language of the amendatory act that the property should be vested in the respective shareholders, according to their respective shares, to establish the position that the exemption extended only to the separate shares of the individual stockholders. But the argument does not

vertise for sale the different railroads, with their appurtenances, rolling stock, and property of every description, and all the rights and franchises thereto belonging; and to sell the same at auction to the highest bidder, in pursuance of the several acts creating a lien thereon. It also provided for the appointment of three commissioners to attend the sale of the different roads as advertised, and to bid in the same for the use and benefit of the state for an amount not exceeding the respective liens thereon; and in case the roads were struck off and sold to them, to take possession of and hold the same, with their appurtenances and property, and again, after due advertisement, inviting proposals for the purchase of the different roads, their lands, appurtenances, and franchises, to resell the same. Under this act the St. Louis and Iron Mountain railroad was advertised for sale, with its rights and privileges, and at the sale was bid in by the commissioners for the state. However

United States Circuit Court, Western District of Missouri, No-pons in suit. vember Term, 1873.