which the law gave him when the offense was add: "Of course, a statute is not of that committed, and therefore, in its application to class unless it materially impairs the right of that offense and its consequences, altered the the accused to have the question of his guilt situation of the party to his disadvantage. determined according to the law as it was 385)By the law as established *when the offense when the offense was committed. And, there was committed, Kring could not have been fore, it is well settled that the accused is not punished with death after his conviction of entitled of right to be tried in the exact mode, murder in the second degree, whereas, by the in all respects, that may be prescribed for the abrogation of that law by the constitutional trial of criminal cases at the time of the comprovision subsequently adopted, he could mission of the offense charged against him. thereafter be tried and convicted of murder Cooley in his Treatise on Constitutional in the first degree, and subjected to the pun-Limitations, after referring to some of the ishment of death. Thus the judgment of con-adjudged cases relating to ex post facto laws, viction of murder in the second degree was says: 'But, so far as mere modes of proceddeprived of all force as evidence to establish ure are concerned, a party has no more right, his absolute immunity thereafter from pun-in a criminal than in a civil action, ishment for murder in the first degree. to insist that his case shall be disposed of This was held to be the deprivation of a sub- under the law in force when the act to be in stantial right which the accused had at the vestigated is charged to have taken place. time the alleged offense was committed. But Remedies must always be under the control there are no such features in the case before of the legislature, and it would create endless us. Statutes which simply enlarge the class confusion in legal procesings if every case of persons who may be competent to testify was to be conducted only in accordance with in criminal cases are not ex post facto in their the rules of practice and heard only by the application to prosecutions for crimes com- courts in existence when its facts arose. The mitted prior to their passage; for they do not legislature may abolish courts and create attach criminality to any act previously done, new ones, and it may prescribe altogether and which was innocent when done; nor different modes of procedure in its discretion aggravate any crime theretofore committed; though it cannot lawfully, we think, in so nor provide a greater punishment therefor doing, dispense with any of those substantial than was prescribed at the time of its com- protections with which the existing law surmission; nor do they alter the degree or lessen rounds the person accused of crime."" Chap. the amount or measure, of the proof which 9, 272. was made necessary to conviction when the crime was committed." The court added: "The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute. Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be obnoxious to the constitutional inhibition upon er post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offense, or the ultimate facts necessary to establish guilt, tut-leaving untouched the nature of the crime and the amount or degree of proof essential to conviction-only remove existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the 386]*state, upon grounds of public policy, may regulate at its pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury, can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offense charged."

Applying the principles announced in former cases without attaching undue weight to general expressions in them that go beyond the questions necessary to be determined-we adjudge that the statute of Missouri relating to the comparison *of writ [387] ings is not ex post facto when applied to prosecutions for crimes committed prior to its passage. If persons excluded, upon grounds of public policy at the time of the commission of an offense, from testifying as witnesses for or against the accused, may, in virtue of a statute, become competent to testify, we cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial de cisions at the time the offense was committed. The Missouri statute, when applied to this case, did not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act involved in his offense criminal that was not criminal at the time he committed the murder of which he was found guilty. It did not change the quality or degree of his offense. Nor can the new rule introduced by it be characterized as unreasonable certainly not so unreasonable as materially to affect the At the present term, in Thompson v. Utah, substantial rights of one put on trial for 170 U. S. 343 [42: 1061], this court observed, crime. The statute did not require "less generally, that a statute is ex post facto proof, in amount or degree," than was rewhich, by its necessary operation and inquired at the time of the commission of the its relation to the offense or its con- crime charged upon him. It left unimpaired sequences, alters the situation of the accused the right of the jury to determine the suf to his disadvantage. But it took care to ficiency or effect of the evidence declared to

limits of the city of New Orleans, as herein above recited."

the railroad is preparing also to cross from Westwego to the city park, and thence to In stating the purpose of the grant of the Claiborne street. The ordinance then pronew right of way from the point of landing ceeds to provide for arrangements for removat the city park opposite Westwego along ing the market from Claiborne street in order the line of the park over the route indicated, to allow the extension on that street to be the first section in the ordinance declares it built. The argument which is based upon to be given to afford the railroad the "most this ordinance is this, as at the time this practicable route to its designated terminus ordinance was passed, the railroad had east of Carrollton avenue." True it is that crossed from Gouldsboro to Thalia street and in § 6, in referring to the previous obligations established its terminus there, as is recited of the company to establish its terminus, the in the ordinance, hence it is asserted the orwords used are that the grantee shall perma-dinance recognizes the fact that the railroad nently establish "its terminus within the was entitled to the extension on Claiborne city limits." But, manifestly, the words "its street despite the fact that it had not estabterminus" as used there refer to its terminus lished its terminus as required by the ordias defined not only in the ordinance in ques-nances from which the right to the extension tion but in the prior ordinances by which the on Claiborne street arose. But this overlooks grant was made. the fact that in the very sentence upon which It being shown by the record that the ter-reliance is placed reference is made to the minus from which the extension along Clai- ordinance giving the corporation the right borne street to Canal was to be made was to build from the city park to the "designever constructed, and that the crossing from nated" terminus. One portion of the senWestwego to the land in front of the park tence cannot be separated from the other. was also never established, but, on the con- The most that can be said of the argument trary, that the company extended its road advanced, from the text of this ordinance, is down the river to Gouldsboro where it made that it seeks by implication and remote deits main crossing, it needs no reasoning to duction to absolve the company from the demonstrate that the right to the extension obligation imposed upon it when the acces-[343 down Claiborne street and the right to theory right of extension down Claiborne street use of the batture in front of the city park was granted, and thus to enable the company no longer obtains. The claim of the corpora- to retain the incidental right, when it had tion really amounts to this: That, having relieved itself of the obligation upon which had certain accessory rights conferred upon the right rested. It is not to be doubted that it in the event it discharged particular obli- the rule is that contracts are not to be so gations, it can disregard the obligations, es- violently construed as to destroy rights in cape the burdens resulting therefrom, and consequence of suspensive conditions, but it yet hold on to all the rights which depended is also equally obvious that they are not to for their existence upon the performance of be so interpreted as to relieve one of the the obligations which the company has dis- parties to a contract from the obligations reregarded. The ordinances cannot be properly sulting therefrom and thereby destroy the construed as authorizing an extended track suspensive condition plainly written therein. to be built when the point from which the Corporations do not take public grants and extension was to be made has never come into privileges by implication, and where express existence. They cannot be read as dedicating and positive obligations are imposed in mak[342]to the use of the *railroad, under the terms ing a grant, these obligations cannot, without of the ordinances, the land in front of the violating an elementary canon of interpretacity park, when such use was accorded to tion, be frittered away in consequence of the railroad solely to enable it to accomplish loose implications made by way of reference a purpose which it has declined to effectuate in subsequent municipal ordinances. The by carrying its main crossing to another and formal contract of lease executed by the city a far distant point. In reaching these conclu- of the batture in front of the city park took sions we are not unmindful of the argument its origin from and was sanctioned by the orpredicated on the supposed effect of ordi- dinance granting the right to cross the river nance numbered 7946, A. S. The title of this from Westwego to the land covered by the ordinance indicates its purpose. It is as fol- lease in order to enable the corporation to lows: carry its tracks from thence to the terminus which it contracted to establish under the original ordinance. It follows, therefore, that the suspensive condition by which the rights of the company under the original ordinance were held in abeyance operates also upon the lease in question.

"An ordinance supplementary to ordinances 6695, 6732 and 6938, administration series, granting certain rights to the New Orleans Pacific Railway Company and its assigns, and providing for the selection of a site for the Claiborne market."

The preamble of this ordinance recites the The mere payment of rent did not change two ordinances conferring the right to build the nature of the suspensive condition or the extension on Claiborne street and states work an estoppel. The right to use the this right to be one of maintaining "an ex-property was limited to the destination tension of its railroad through Claiborne street," and after reciting the fact that the railroad had crossed at Thalia street, and established its terminus there, declares that

stated in the contract. La. Civ. Code, 2711. But this right to use was covered by the suspensive condition, and the contract of lease only evidenced the agreement to use the prop

The fact that the guardian acted in good | cation of the funds of the estates they reprefaith is irrelevant and immaterial.

Sprott v. United States, 20 Wall. 459, 463 (22:371, 372).

The guardian is bound to account for the money in gold. He has failed to show that the gold which he collected in 1857, 1858, and 1859, was changed into Confederate


King v. Hughes, 52 Ga. 600; Johnson v. McCullough, 59 Ga. 212.

Mr. P. W. Meldrim, for defendant in er


The guardian had the right to invest Confederate money in his hands under the direction of the judge of the superior court having jurisdiction.

Ga. cts 1861, p. 32; Ga. Acts 1863-64, p. 29; Ordinances of the Conventions of Georgia, 1865-1868; Campbell v. Miller, 38 Ga. 304, 95 Am. Dec. 389; Miller v. Gould, 38 Ga. 465; Westbrook v. Davis, 48 Ga. 473; Saxon v. Sheppard, 54 Ga. 286; McWhorter v. Tarpley, 54 Ga. 291; Nelms v. Summers, 54 Ga. 605; Venable v. Cody, 68 Ga. 171; McCook v. Harp, 81 Ga. 236.

Mr. Justice Harlan delivered the opinion of the court:

William H. Baldy, a citizen of Georgia, died in that state prior to the civil war, leaving several children, one of whom was Marianne J. Baldy, who became of full age on the 21st day of February, 1875.

În 1857 Dr. E. H. W. Hunter was appointed [390]her guardian, *and after duly qualifying as such took possession of the estate of his ward. By an act of the legislature of Georgia, passed on the 16th day of December, 1861, guardians, trustees, executors, and administrators were authorized to invest any funds held by them in the bonds issued by the Confederate states or in lands and negroes-an order to that effect being first obtained from a judge of the superior court, who was empowered to consider and pass such applications, either in term time or vacation. Laws 1861, p. 32.


On the 25th day of April, 1863, the superior court of Jefferson county, Georgia, passed an order granting leave to the guardian of Miss Baldy to invest certain funds then in his hands in Confederate bonds. This order was granted upon the petition of the guardian, who expressed the opinion that such funds should be so invested. On the same day the

investment was made.

sent, by reason of such investments;" and that all administrators, executors, guardians, and trustees, claiming the benefit of the provisions of that act, should, before their final settlement, make oath before the ordinary of the county in which they had theretofore made their returns, "showing what funds of the estates they represent they have so invested, and shall also swear that the notes, bonds, or certificates, so held by them, are the same kind of currency which they received for the estates they so represent." Ga. Laws 1865-66, p. 85.

On the 2d day of July, 1866, the guardian
made a return *to the proper court of his acts[391]
for the years 1864 and 1865, showing the
amount in his hands, and also made oath be-
fore the ordinary of Jefferson county, Geor-
gia, "that in 1863, in pursuance of an order,
judgment, or decree of the superior court of
said county as guardian of M. J. Baldy,
minor, he did bona fide invest twelve hundred
dollars of the funds of said minor in the
eight per cent bonds of the Confederate states,
and that the bonds so held by him are the
said minor's estate."
same kind of currency which he received for

of Jefferson county letters of dismissal as
In 1876 Hunter received from the ordinary
guardian of the several children of William
H. Baldy. He died nine years thereafter, in
1885, and this suit was brought in 1893
J. Baldy by her next friend, she having be-
against his executor in the name of Marianne

come of unsound mind as far back at least as

1875, and being at the time this suit was
brought in a lunatic asylum.

court to instruct the jury that "an invest-
At the trial below the plaintiff asked the
ment by a guardian of money of his ward
during the Confederate war, and while both
guardian and ward were residing within the
Confederate territory, in bonds of the Con-
federate states, was unlawful, and the guard-
ian is responsible to the ward for the sum so
invested;" and that no act of the legislature
of the state "passed during the late war, au-
thorizing the guardian to invest the funds of
his ward in Confederate bonds, and no order
of any court of the state granted in pursuance
of said act of the legislature, would authorize
such investment." Both of these instructions
were refused.

It is not contended that the case involves

any question as to the statute of limitations. It was agreed at the trial that the only The legislature of Georgia, by an act ap- matter in issue was as to the liability of Hunproved March 12, 1866, entitled "An Act for ter's estate by reason of his having invested the Relief of Administrators, Executors, the ward's money in 1863 in bonds of the Guardians, and Trustees, and for Other Pur- Confederate states. This appears from the poses," declared that all administrators, exec- charge to the jury in which the trial court, utors, guardians, and trustees, who, in pur- after observing that its duty was to follow suance of an order, judgment, or decree of any the decisions of the supreme court of Georgia, court having jurisdiction, or of any law of said: "In the present case I am authorized that state, bona fide invested the funds of to say that it is agreed between counsel that the estate they represented in the bonds, the investment was made bona fide, and the notes, or certificates of the state of Georgia *only question is whether it was lawful or un-[392] or of the Confederate states, "be and they are lawful for the guardian to make this investhereby relieved from all the penalties of mis- ment; and, further, that as I may decide the management, misappropriation, or misappli- legal question, I shall instruct a verdict for 171 U. S. U. S., Book 43.



[346]continue the injunction until the hearing was heard on bill, answer, affidavits and exhibits, and denied, and the temporary injunction dissolved. The opinion of the circuit court by Seymour, J., is reported in 52 Fed. Rep. 690. Froofs were taken, and a final hearing had at June term, 1893, at Raleigh; the bill was dismissed; and complainants thereupon prosecuted this appeal.

By 14 of article 9 of the Constitution of North Carolina of 1875-76, it was provided that, as soon as practicable after the adoption of that instrument, the general assembly should "establish and maintain, in connection with the University, a department of agriculture, of mechanics, of mining, and of normal instruction."

By an act of March 12, 1877 (Laws N. C. 1876-77, 506, chap. 274), such a department was established, and, among other things, the subject of commercial fertilizers dealt with. By the 8th section, manipulated guanos, superphosphates, or other commercial fertilizers were forbidden to be sold, or offered for sale, until the manufacturer or person importing the same had obtained a license therefor on payment of a privilege tax of $500 per annum for each separate brand or quality.

(Laws 1891, 40, chap. 9), chapter 1 of volume
2 of the Code was amended, and §§ 2190,
2191, and 2193 were made to read as follows:
"Sec. 2190. For the purpose of defraying the
expenses connected with the inspection of fer-
tilizers and fertilizing materials in this state
there shall be a charge of twenty-five cents
per ton on such fertilizers and fertilizing ma-
terial for each fiscal year ending November
thirtieth, which shall be paid before delivery
to agents, dealers, or consumers, in this state:
Provided, the board shall [have] the discre-
tion to exempt certain natural material
as may be deemed expedient. Each bag,
barrel, or other package of such fer-
tilizers or fertilizing materials shall have
attached thereto a tag stating that all
charges specified in this section have been
paid, and the state board of agriculture is
hereby empowered to prescribe a form for
such tags, and to adopt such regulations as
will enable them to enforce this law. Any
person, corporation, or company who shall
violate this chapter, or who shall sell or offer
for sale any such fertilizers or fertilizing ma-
terial contrary to the provisions above set
forth, shall be guilty of a misdemeanor, and
all fertilizers or fertilizing materials so sold
or offered for sale shall be subject to seizure
and condemnation in the same manner as is
provided in this chapter for the seizure and
condemnation of spurious fertilizers, subject,
however, *to the discretion of the board of[348
agriculture to release the fertilizers so seized
and condemned upon the payment of the
charge above specified and all costs and ex-
penses incurred by the department in such
proceeding: Provided, that tags shall be at-
tached by manufacturers, agents or dealers
to all fertilizers now in the state; those pro-
tected under license previously issued shall
be furnished free of charge.

By § 9 every bag, barrel, or other package of such fertilizer offered for sale was required to have thereon a label or stamp setting forth the name, location, and trademark of the manufacturer; the chemical composition of the contents, and the real percentage of certain specified ingredients; and that the privilege tax had been paid. By § 10, the Board was empowered to collect samples for analysis; by 11, to require railroad and steamboat companies to furnish monthly statements of the quantity of fertilizers transported; and by § 12, to establish an agricultural experiment and fertilizer central station in connection with the chemical labora- "Sec. 2191. Every bag, barrel, or other tory of the University, and the trustees of the package of such fertilizers or fertilizing maUniversity, with the approval of the board, terials as above designated offered for sale in were directed to employ an analyst, skilled this state shall have thereon plainly printed a in agricultural chemistry, whose duty it label or stamp, a copy of which shall be filed should be "to analyze such fertilizers and with the commissioner of agriculture, toproducts as may be required by the depart-gether with a true and faithful sample of the ment of agriculture, and to aid as far as practicable in suppressing fraud in the sale of [347]commercial fertilizers;" *and whose salary was to be paid "out of the funds of the department of agriculture."

The sections bearing on this subject were carried forward in the Code of 1883, volume 2, chap. 1, §§ 2190 et seq.

In August, 1890, the circuit court for the eastern district of North Carolina, Bond and Seymour, JJ., held that § 2190 of the Code, declaring that no commercial fertilizers should be sold or offered for sale until the manufacturer or importer obtained a license from the treasurer of the state, for which should be paid. privilege tax of $500 per annum for each separate brand, was in violation of the Federal Constitution and void. American Fertilizer Co. v. North Carolina Bd. of Agri. 43 Fed. Rep. 609 [11 L. P. A. 179, 3 Inters. Com. Rep. 532.]

Thereupon, by the act of January 21, 1891

fertilizer or fertilizing material which it is proposed to sell, at or before delivery to agents, dealers or consumers in this state and which shall be uniformly used and shall not be changed during the fiscal year for which tags are issued, and the said label or stamp shall truly set forth the name, location, and trademark of the manufacturer; also the chemical composition of the contents of such package, and the real percentage of any of the following ingredients asserted to be prescnt, to wit, soluble and precipitated phosphoric acid, which shall not be less than eight per cent.; soluble potassa, which shall not be less than one per cent.; ammonia, which shall not be less than two per cent.; or its equivalent in nitrogen; together with the date of its analyzation, and that the requirements of the law have been complied with; and any such fertilizer as shall be ascertained by analysis not to contain the ingredients and percentage set forth as above

provided shall be liable to seizure and con-
demnation as hereinafter prescribed, and
when condemned shail be sold by the board
of agriculture for the exclusive use and bene-
fit of the department of agriculture."
Section 2192 refers to the proceedings to

"Sec. 2193. Any merchant, trader, manufacturer, or agent who shall sell or offer for sale any commercial fertilizer or fertilizing material without having such labels, stamps, and tags as herein before provided attached thereto, or shall use the required tag the second time to avoid the payment of the ton(349]age *charge, or if any person shall remove any such fertilizer, (he) shall be liable to a fine of ten dollars for each separate bag, barrel, or package sold, offered for sale, or removed, to be sued for before any justice of the peace and to be collected by the sheriff by distress or otherwise, one half less the costs to go to the party suing and the remaining half to the department; and if any such fertilizer shall be condemned as herein provided it shall be the duty of the department to have an analysis made of the same and cause printed tags or labels expressing the true chemical ingredients of the same put upon each bag, barrel or package, and shall fix the commercial value thereof at which it may be sold; and any person who shall sell, offer for sale or remove any such fertilizers, or any agent of any railroad or other transportation company who shall deliver any such fertilizer in violation of this section shall be guilty of a


Section 2196, which corresponded to § 12 of the act of March 12, 1877, was amended by the substitution of the word "control" for the word "central," and read as follows:

licenses, from fines and forfeitures, fees for registration and sale of lands not herein otherwise provided for, shall be paid into the state treasury and shall be kept on a separate account by the treasurer as a fund for the exclusive use and benefit of the department of agriculture."

The various errors assigned question the decree on the grounds, in general, that the court should have held the act of January 21, 1891, to be in violation of the third clause of § 8, and of the second clause of § 10, of article 1 of the Constitution of the United States; that the charge required to be paid was so excessive that the act could not be sustained as a legitimate inspection law; or as a valid exercise of the police power; and that it was neither, because it was not limited to articles produced in the state, and because it did not relate to the health, morals, or safety of the community.

The second clause of § 10 of article 1 of the Constitution reads: "No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.".

The words "imports" and "exports," therein used, have been held to apply only to articles imported from, or exported to, foreign countries. Woodruff v. Parham, 8 Wall. 123 [19: 382]; Pittsburg & S. Coal Company v. Louisiana, 156 U. S. 590, 600 [39: 544, 549.]

The clause recognized that the inspection "The department of agriculture shall es- of such articles may be required by the states, tablish an agricultural experiment and ferti- and that they may lay duties on them to pay lizer control station, and shall employ an an- the expense of such inspections, but as it alyst, skilled in agricultural chemistry. It would be difficult, if not impossible to de-[351] shall be the duty of said chemist to analyze termine the necessary amount with exactness such fertilizers and products as may be re- and to remove any inducement to excess, it quired by the department of agriculture, and was provided that any surplus should be paid to aid as far as practicable in suppressing to the United States. As such laws are subfraud in the sale of commercial fertilizers. ject to the revision and control of Congress, He shall, also, under the direction of said de-it has been suggested that whether inspection partment, carry on experiments on the nutrition and growth of plants, with a view to ascertain what fertilizers are best suited to the various crops of this state; and whether other crops may not be advantageously grown on its soil, and shall carry on such other investigations as the said department may direct. He shall make regular reports to the said department, of all analyses and experiments made, which shall be furnished, when deemed needful, to such newspapers as will publish

the same.

His salary shall be paid out of the funds of the department of agriculture." The following was substituted for § 2205: [350]" Whenever any manufacturer of fertilizers or fertilizing materials shall have paid the charges hereinbefore provided his goods shall not be liable to any further tax whether by city, town, or county."

Section 2208 remained unamended, and provided: "All moneys arising from the tax on 171 U. S. U. S., Book 43.

charges are excessive or not might be for Congress to determine and not the courts, which would also be so where inspection laws operate on interstate as well as foreign commerce. Neilson v. Garza, 2 Woods, 287; Turner v. Maryland, 107 U. S. 38 [27: 370].

Considered as an inspection law and as not open to attack as in contravention of that clause, the questions still remain whether an inspection law can operate on importations as well as exportations; and whether in this instance the charge was so excessive as to deprive the act of its character as an inspection law or as a legitimate exercise of protective governmental power, and make it a mere revenue law obnoxious to the objection of being an unlawful interference with interstate commerce. Counsel for plaintiff in error insists that this result is deducible from the legislation of North Carolina making appropriations from the funds of the department of 13


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