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it to the States, are reserved to the States re- into effect the foregoing powers and all spectively or to the people.”

other powers vested by this constitution on The loose constructionist view has always government of the Uuited States or in any delacked the directness and candor that comes partment or officer thereof." from an entire dependence on the literal truth. We might well rest content with the interIt was obviously a loose constructionist who, pretation Chief Justice Marshall places upon as a member of a committee on revisalin the

this clause (McCullough v. State of Maryconstitutional convention of 1787, sought to

land, 4 Wheat 421). The incidental and imthrow the “ general welfare clause of sec

plied powers herein provided for must not tion 8, article III, into a separate paragraph, only be necessary and proper, but they when the trick was discovered and frustrated,

must be "appropriate" and "plainly A similar object is attempted in another adapted” to the powers previously enumerway, by substituting a semi-colon for the ated, and they must "consist with the letter comma of the original in the same passage, and spirit of the constitution.” making the reading as follows: "The con- Unfortunately, the words of the great gress shall have power to levy and collect jurist, himself a Federalist and (for his taxes, duties, imports and excises; (,) to pay

time) a broad constructionist, are become the debts and provide for the common defense

like the constitution itself, too narrow and and general welfare of the United States,"

literal for the centralizing constructionists of etc.

to-day. The interpolation of a semi-colon after the

Judge Story believes that this power, if it word excises changes the sense materially,

were not expressed, would be implied from and seems to delegate power without any

the previously enumerated powers.

"It limit, except congressional discretion. This

neither enlarges any

power specifically false punctuation was at one time common

granted, nor is it a grant of any new power.' and is still found in some school books (Eq. (Story on the Constitution, sec. 603.) Venable's United States History), and in

Loose interpretation endanger the very some of the blue books issued by State leg

value and existence of the constitution. If islatures.

expediency, emergency, popular acclaim and There ought to be very little doubt as to

majority absolutism are to strain, evade,

Federal the meaning of this passage in its correct

and quibble over the limits of version (that of the original MS. of the con

sovereignty therein prescribed, the definistitution preserved at Washington). The ex

tions of the compact have ceased to be position of Thomas Jefferson during the

binding. They have ceased to check the very Bank controversy (1791) was afterwards

tendencies for which they were designed. substantially adopted by the supreme court.

A strict and literal observance of these It is quoted approvingly by Judge Story

provisions is the only sound and honest, in his Commentaries on the Constitution.

as it is the only safe and desirable policy. Construed in a loose and vague manner,

the That a vast amount of specious reasoning has been ventured by broad constructionists

question will ultimately be one of limit or no to show that the clause, "to

limit, one of a living, stable charter of free

pay the debts

dom, or an obsolete and dead-letter constiand provide for the


H. J. DESMOND. mon defense and general welfare,” was

Milwaukee, Wis. separate and substantive grant of power, and not, as Jefferson contended, a limitation by way of defining the purpose for which congress might “ lay and collect taxes, duties, imports and excises.

The last of the enumerated powers delegated to congress has also been made a battle field of hermeneutics. It authorizes the legislative branch "to make all laws which shall be necessary and proper for carrying



against the




VENDOR AND VENDEE—THE RULE IN anent annexations which pass to the vendee, REGARD TO FIXTURES. although attached for the purposes


trade, manufacture, or even for ornament or Bouvier defines a fixture as a personal

domestic use. Thus, utensils and machinery,

appertaining to a building for manufacturing chattel affixed to real estate, which


be severed and removed by the party who has

purposes ;' gas pipes, fittings, and other ap

paratus, designed for purposes of illuminaaffixed it, or by his personal representatives,

tion, including even chandeliers, burners, will of the

of the

etc., when it is apparent that such was the infreehold. But, while the definition is

tention of the parties," or they are clearly perhaps sufficiently lucid to enable every

shown to be accessories and not merely furto form intelligent idea of

niture ;6 water pipes and conduits ;; ranges, what constitutes a fixture, abstractly consid

boilers, and tanks, attached in a permanent ered, it sheds but little light upon itself when

manner ;8 stoves, and hot-air furnaces or we come to determine the question as to

other appliances for heating, when put in as a whether given appendages or annexations to

permanent annexation, though upon this houses or lands are to be considered as part point the authorities are not agreed ;10 window of the realty, and, hence, partaking of its

and door screens,"1 storm doors, or other adimmovable character, or simply as personal juncts made and fitted to the house, 12 though property, which follows the person of the

if never actually used and the house is comowner.

plete without them they might not pass, even It is a rule of the common law, that

if on the premises ;18 and, generally, anything whatever is accessory to real estate is a part the vendor has annexed to a building, for the of it, and passes by alienation. The neces

more convenient use and improvement of the sities of trade have caused a modification of

premises, passes by his deed, unless specially this rule, so far as it may affect the relation

reserved. The rule, therefore, would seem of landlord and tenant, and courts recognize to be, that where the annexation is permanent and enforce the right of removal by tenants in its character, and essential to the purpose of chattels annexed to the freehold for the for which the property is used or occupied, it purposes of manufacture, agriculture, or do should be regarded as realty, and pass with mestic use and convenience. But between the grant of the freehold, and this, notwithvendor and vendee the rule is still applicable, standing the connection between them, may except so far as it may have been modified by statutory regulation, and where the question is not affected by the terms of the con 3 As potash kettles in an ash factory, Miller v.

Plumb, 6 Cow. (N. Y.) 665; a cotton gin permanently tract, appurtenances and chattles attached to

fixed, Bratton v. Clawson, 2 Strob. (S. C.) 478; a steam the land or buildings, and contributing to

engine to drive a bark mill, Oves v. Oglesby, 7 Watts their value and enjoyment, pass by the grant (Pa.), 106; kettles set in brick in a print works, Disof the freehold, and after conveyance cannot

patch Line v. Bellamy Mfg. Co., 12 (N. H.) 207; iron

stoves fixed to the brick work of chimneys, Goddard be severed by the vendor or any person other v. Chase, 7 Mass. 452; fixed tables in a mill, Sands v. than the owner.2

Pfeiffer, 10 Cal. 257; blower and pipe conveying air to

a forge, Alvord Mfg. Co, v. Gleason, 36 Conn. 86; a Just what shall be regarded as a fixture,

factory bell, Ibid; and Weston v. Weston, 102 Mass. sufficient to escape the operation of the fore 514. going rule, is not always an easy matter to

4 McKeag v. Ins. Co., 81 N. Y. 38; Hays v. Doane, 11

N. J. E. 96. decide. Many things pass by the deed of a

5 Pratt v. Whittier, 58 Cal. 126; Keller v. Keller, 31 house, being put there by the vendor, which N. J. Eq. 191; and see Johnson v. Wiseman, 4 Met.

(Ky.) 357; Smith v. Commonwealth, 14 Bush. (Ky.) 31. a tenant who had put them there might have

6 Keller v. Keller, 31 N. J. Eq. 191. removed; and they will be regarded as perm ? Philbrick v. Emry, 97 Mass. 134.

8 Pratt v. Whittier, 58 Cal. 126.

9 Goddard v. Chase, 7 Mass. 432; Blethen v. Towle, I Bou. Law Dict., 593.

19 Me. 252; Stockwell v. Campbell, 39 Conn. 362. 2 Tourtellot v. Phelps, 4 Gray (Mass.) 378; Kennard 10 See Towne v. Fisk, 127 Mass. 125. v. Brough, 64 Ind. 23; Lapham v. Norton, 71 Me. 83; 11 Petengill v. Evans, 5 N. H. 54; Pratt v. Whittier, Westgate v. Wixon, 128 Mass. 304; Alvord Manf. Co. 58 Cal. 126. v. Gleason, 36 Conn. 86; Van Kuren v. R. R. Co. 38 N. 12 Petengill v. Evans, 5 N. H. 54. . L. 165.

13 Peck v. Batchelder, 40 Vt. 233.

turns. 18


be such that it may be severed without phys- be said to be entirely conclusive, the express ical or lasting injury to either. 14

or implied understanding of the parties being The mode of anuexation, while of con- usually the pivot on which the question trolling efficacy, as between landlord and tenant, and, possibly, between executor and heir, The greatest difficulty in the application of is of comparatively small moment, as between the rules for determining fixtures occurs in vendor and vendee, the purposes of the an- the case of what may, under ordinary circumnexation and the intent with which it was stances, be fairly classed as furniture, conmade being, in most cases, the important trivances for heating and illumination. consideration. 15

Lamps, chandliers, and gas fixtures, generIt is true the mode of annexation, in the ally, are usually regarded as furniture. True, absence of other proof of intent, may become they are often sold with the house, which can controlling, as where it is in itself so insep- hardly be said to be complete without them, arable and permanent as to render the article but unless there has been a special agreement necessarily a part of the realty ;16 and even in in regard to them they will not pass under the case of a less thorough method the manner general clauses of the deed. 19 Mirrors are of attachment may still afford convincing evi-ordinarily regarded only as furniture, nor dence that the intention was to make the ar- will the fact that they are fastened to the ticle a permanent accsssion. Still, there is walls for safety or convenience deprive them no universal test, and neither the mode of of their character as personal chattels and annexation or the manner of use can ever make them part of the realty;20 but if they

are set in the walls, with frames correspond14 Green v. Phillips, 26 Gratt. (Va.) 752; Smith v. ing to the cabinet work, and their removal Commonwealth,14 Busb.(Ky.) 31; Parsons v.Copeland,

would leave the walls in an unfinished con38 Me. 537; Keeler v. Keeler, 31 N. J. Eq. 191; Bishop v. Bishop, 11 N. Y. 123; Pea v. Pea, 35 Ind. 387; Phil

dition, the rule is otherwise.? Portable hotipson v. Mullanphy, 1 M0. 620; Cohen v. Kyler, 27 Mo. air furnaces have been held to come within 122. 15 McRea v. Bank, 66. N. Y. 489; Wheeler v. Bedell,

the same rule, 22 and would, doubtless, be gov40 Mich. 693; Richardson v. Borden, 42 Miss. 71; Eaves erned by the same principles, but in this, as v. Estes, 10 Kan. 314.

in every case involving the questions just dis16 Lyle v. Palmer, 42 Mich. 314. 17 As, for instance, where the building is constructed

cussed, the intention of permanent annexaexpressly to receive the debatable articles, machinery, tion must decide the matter, and where it aputensils, etc., and they could not be removed without material injury to the buiiding; or, where the article

pears that either gas fixtures23 or furnaces would be of no value, except for use in that particular were considered as integral parts of the building, or could not be removed therefrom without realty, and as such were to pass with the being destroyed, or greatly damaged. McRea v. Bank, 66 N. Y. 489. A rule for determining whether or not

buildings, effect will be given to such intena chattel is so annexed to the realty as to become a part tion, notwithstanding no mention has been of it is laid down by Bartiy,J., in Teaff v. Hewitt, 1 Ohio

made in the deed; and, generally, in all cases St. 511, as follows: “From the examination I have been enabled to give this subject, and a careful review of the

of doubt the rule for determining what is a authorities, I have reached the conclusion that the fixture should be constsued most strongly united application of the following requisites will be found the safest criterion of a fixture: 1, actual

against the vendor. 25 annexation to the realty, or something appurtenant

It will, of course, be understood, that parthereto; 2, appropriation to the use or purpose of that ties themselves may, by express agreement, part of the realty with which it is connected; 3, the intention of the party making the annexation to make

fix upon chattels annexed to realty whatever the article a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making 18 Wheeler v. Bedell, 40 Mich. 693; Funk v. Brigaldi, the annexation, the structure and mode of annexation, 4 Daly (N. Y.), 359. and the purpose or use for which the annexation was 19 Vaughen v. Haldeman, 33 Pa. St. 522; Rogers V. made. This criterion furnishes a test of general and Crow, 40 Mo. 91; McKeage v. Ins. Co. 81 N. Y. 8; uniform application-one by which the essential quali. Jarechi v. Philharmonic Soc., 79 Pa. St. 403. ties of a fixture can, in most instances, be certainly and 20 McKege v. Ins. Co.,81 N. Y. 91. easily ascertained, and tends to harmonize the appar- 21 Ward v, Kilpatrick, 85 N. Y. 413. ent conflict in the authorities relating to the subject. 22 Towne v. Fiske, 127 Mass. 125. It may be found inconsistent with the reasoning and 23 Pratt v. Whittier, 58 Cal. 126. distinctions in many of the cases, but it is belieyed to 24 Stockwell v. Campbell, 39 Conn. 362; Thielman v. be at variance with the conclusion in but few of the Carr, 75 III. 385. well considered adjudications."

25 Pratt v. Whittier, 58 Cal. 385.


it. 27


character they may see fit.? Hence, prop

the franchise exercised and is not stopped by erty which the law regards as fixtures may be mere paper title. This is elementary. by them considered as personal chattels, and

Unlike the ancient writ of quo warranto, that which in contemplation of law is re- now obsolete, the information in the nature of garded as personalty they may regard as a quo warranto is in form a criminal proceeding fixture and part of the realty, and whatever for the common law misdemeanor of usurpmay be their agreement courts will enforce ing any office or franchise derivable from

GEO. W. WARVELLE. the State, and is not confined to such franChicago, III.

chises as pertain to the royal prerogative.?

Upon conviction, a judgment of ouster is en28 Pratt v. Whittier, 58 Cal. 126; Bartholomew v. Hamilton, 105 Mass. 239.

tered and a fine imposed, upon the defend27 Smith v. Wagoner, 50 Wis. 155.


Is a dram-shopkeeper's license a franchise?

Franchises are mentioned by Blackstones DRAM-SHOP LICENSES_VALIDITY ON as the seventh sort of incoporeal hereditaQUO WARRANTO.

ments. He says they are various—almost in

finite-and enumerates : markets, fairs, In most of the States, as in Missouri,' the

chases, parks,' warrens, ferries, 10 etc. In the statutes prohibit the maintenance of a dram- great quo warranto case against the city of shop without a license from the State through London in the reign of James II, Pollaxfen, its proper officer, and require certain things

the leading counsel for the city, said: “I to be done before the officer shall issue the agree that franchise is a large word, it is of license (for example, requiring the presenta- like sense of liberty or privilege. Therefore, tion of a petition signed by a majority of in quo warranto, franchises, liberties and property owners in the locality). These are

privileges seem to be of the same sense. jurisdictional facts, and although the officer

“Franchises,” said Chief Justice Taney, may in addition be given a discretion which “are special privileges conferred by governthe court will not be at liberty to review, 2

ment upon individuals, and which do not beyet, in respect of the jurisdictional facts, these long to the citizens of the country generally are essential to the power of the officer to

of common right. It is essential to the charissue the license, and will be open to examin

acter of a franchise that it should be a grant ation by the courts, and the license will not from the sovereign authority, and in this preclude that inquiry.

country no franchise can be held which is not But whether rightly or not, it is usually held

derived from the law of the State.'12 It matthat, in prosecutions for maintaining a dram

ters not whether privilege was

one which shop, the State will not be permitted, upon

could have been exercised at common law. introduction of the license in defense, to

The question arose in People v. Utica, 18 where show that it was issued without a compliance

5 State ex rel. v. Jones, 16 Flor. 305; State ex rel. V. with and in violation of the statute, and the Woodbury, 14 Cal. 43; State ex rel. v. Vail, 53 Mo. 97. law is thus successfully evaded.

107; State ex rel. v. Coffee, 59 Mo. 59.

6 King v. Stanton Cro Jac. 259; Comyr's Dig. tit. quo It is the purpose of this article to show

warranto a and e; Darley v. Regina, 12 Cl. & F., p. 532; that such license is a franchise ; that an in

King v. Nickolson, 1 Stra. 803; State ex rel. v. Mechan, formation in the nature of quo warranto is the 45 N. J. L. 194; People v. Utica Co., 15 Johns. 358; Peo

ple v. Ridgley, 21 Ills. 69; Tanc. quo warranto, p 5; State proper remedy to test its validity, and if

ex rel. v. Jones, 16 Flor, 306. As to form of informaillegally issued the usurpation will result in a

tion see Tom. Law Dic. tit. quo var. judgment of ouster and a fine.

7 People v. Utica Co., 15 John. 358; People v. Ridgley An information in the nature of quo war

21 Ills. 69; State ex rel. v. Jones 16 Flor. 306.

8 2 Blk. Com. 37. ranto permits inquiry into the very right to

9 Applied in Mayor v. Park Com., 44 Mich. 602.

10 Chilvers v. People, 11 Mich. 43. 2 R. S. Mo. c. 98.

11 8 How. Sta. Tr., p. 1243. 2 High Extra. $ Leg. Rem., $ 42, 46.

12 Bank of Augusta v. Earle, 13 Pet. 595; Cooley 3 State & Hudson 13 Mo. App. 61.

Taxation, 406-7; Home Ins. Co. v. Augusta, 50 Ga.. 4 Jolley & Faltz 34 Cal. 326; Clark & Holmes 1 Doug. 537. (Mich.) 393. These apply with greater force to minis. 13 15 John. 358; same ruling on injunction proceedterial officers.

ings, where Chancellor Kent held that remedy was by

an information in quo warranto was tried for the observation was limited to proceedings usurping the franchise of banking, the laws instituted under the statute of 9 Anne, ch. 20. of New York having restrained unincorpor The authorities are numerous and uniform, ated associations from engaging therein. But that corporate franchises are not the only the court observed : “ Formerly the right of ones cognizable on such informations. 18

For banking was a common law right belonging a proper appreciation of the authorities on to individuals, and to be exercised at their informations in quo warranto, it must be pleasure. It cannot, however, admit of doubt borne in mind that the proceeding was pot of that the legislature had authority to regulate, statutory but common law origin, and was modify or restrain this right. This was done founded upon the alleged misdemeanor of by the restraining act of 1804.

usurping a privilege which could not be exThe right of banking by any company or ercised without authority of the crown or association has, since the restraining act, be parliament. 19 The clerk or master of the come a franchise or privilege derived from crown office, like the attorney-general, had the grant of the legislature, and subsisting the right to file such information, ex officio, only in such companies or association as can upon the suggestion of private persons, but show such grant.” So it is held that a pilot's having abused that discretion by the procnro. license is a franchise, for the usurpation of ment of malicious and contentious persons," which the information will lie. 14

the statute of 4 and 5 W. & M., ch. 18, proWe, therefore, think it clear that one who hibited him from exhibiting informations of assumes to maintain a dram-shop assumes any kind, without leave of court, and required to exercise a right, privilege and liberty

the prosecutor in all instances to enter into which other citizens, by express provision of

a recognizance for costs.

The attorneystatute, are denied the right of exercising general's power remained untouched. In the without special permission of the State. That

exercise of the discretion then lodged with such special right, which can only be exer the court, the rule was adopted that the apcised under express grant, is as much a fran

plication for leave would be denied where no chise as the business of banking under the

public interest was involved ;20 but where the New York law, the privileges of pilot, or

usurpation worked injury to private right, it right to maintain a market, ferry, warren,


became a proper cases for the exercise of park for deer (incidents of the “ Forest

discretion, and leave would be granted.21 Laws ”') at common law. 15

The statute of 9 Anne, which has been reThe attorney-general has undoubted com

enacted in the various States, was designed, mon law authority to exhibit the information,

says the preamble, to render more speedy ex officio, without leave of court first had, and

and effectual the remedies by writs of manin most of the States the supreme court is damus and informations in quo warranto, for given original jurisdiction. 16

the more easy trying and determining the From the language employed by Mr. High rights of offices and franchises in corporations at one place in his work on Extraordinary

and boroughs. It provided that informations Legal Remedies, it would seem that the opera

in such cases might be exhibited by leave of tion of the modern information in quo war

court by the court's officer (not the attorneyranto was confined to usurpations, misuser or

general who possessed the power, ex officio), non-user of a public office or corporate fran at the relation of the person desiring to proschise ;17 but the succeeding pages show that

ecute the same, and who should be mentioned information in quo warranto. Atty-Gen. v. Utica

as relator. 22 Co., 2 Johns. Ch. 371.

14 State ex rel. v. Jones, 16 Flor. 306; State ex rel. v. Woodbury, 14 Cal. 43.

18 See citations in notes 5, 6, 7 and 8. 15 Austin v. State, 10 Mo. 592; State v. Hudson, 78 19 Tanc. Quo War., 5; Cole Crim. Inf., 112, see also Mo. 304.

16 Tancred Quo War., 13-15; State v. Ins. Co., 8 20 Cole Crim. Inf., 117-119; Tanc. Quo War., 8-10, Mo. 331. Under statutory provision in most of the 13. States the circuits' attorney may exercise the like 21 Rex v. Mayor of Hartford, 1 Ld. Ray. 426; also authority: State ex rel. v. Lawrence, 38 Mo. 538; State reported in 1 Salk. 374; 12 Mad. 225; Buller's Nisi v. Bernondy, 36 Mo. 279.

Prius, 208; Tanc. Quo War., 22-50. 17 High Extra. Leg. Rem., $ 591.

22 Cole Crim. Inf., 127.

p. 2.

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