nearest constable for protection? must they rely on him to use the requisite compulsion, and to keep the peace whilst they are soliciting and entreating the parties and bystanders to allow the law to take its course? This is the necessary consequence of the positions that are assumed. If we indulge in such impracticable views as these, and keep on refining and re-refining, we shall drive the National government out of the United States, and relegate it to the District of Columbia, or perhaps some foreign soil. We shall bring it back to a condition of greater helplessness than that of the old Confederation.

The argument is based on a strained and impracticable view of the nature and powers of the National government. It must execute its powers or it is no government. It must execute them on the land as well as on the sea, on things as well as on persons. And to do this, it must necessarily have power to command obedience, preserve order, and keep the peace; and no person or power in this land has the right to resist or question its authority so long as it keeps within the bounds of its jurisdiction. Without specifying other instances in which this power to preserve order and keep the peace unquestionably exists, take the very case in hand. The counsel for the petitioners concede that Congress may, if it sees fit, assume the entire control and regulation of the election of representatives. This would necessarily involve the appointment of the places for holding the polls, the times of voting, and the officers for holding the election; it would require the regulation of the duties to be performed, the custody of the ballots, the mode of ascertaining the result, and every other matter relating to the subject. Is it possible that Congress could not in that case provide for keeping the peace at such elections, and for arresting and punishing those guilty of breaking it? If it could not, its power would be but a shadow and a name. But if Congress can do this, where is the difference, in principle, in its making provision for securing the preservation of the peace so as to give to every citizen his free right to vote without molestation or injury, when it assumes only to supervise the regulations made by the State, and not to supersede them entirely? In our judgment there is no difference; and if the power exists in the one case, it exists in the other.

The next point raised is, that the act of Congress proposes to operate on officers or persons authorized by State laws to perform certain duties under them; and to require them to disobey and disregard State laws when they come in conflict with the act of Congress; that it thereby of necessity produces collision, and is therefore void. This point has been already fully considered. We have shown, as we think, that where the regulations of Congress conflict with those of the State, it is the latter which are void, and uot the regulations of Congress; and that the laws of the State, in so far as they are inconsistent with the laws of Congress on the same subject, cease to have effect as laws.

Finally, it is objected that the act of Congress imposes upon the Circuit Courts duties not judicial, in requiring them to appoint the supervisors of election, whose duties, it is alleged, are entirely executive in their character. It is contended that no power can be conferred upon the courts of the United States to appoint officers whose duties are not connected with the judicial department of the government.

The Constitution declares that "the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments." It is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular

executive department, to which the duties of such officers appertain. But there is no absolute requirement to this effect in the Constitution; and if there were, it would be difficult, in many cases, to determine to which department an office properly belonged. Take that of marshal, for instance. He is an executive officer whose appointment, in ordinary cases, is left to the President and Senate. But if Congress should, as it might, vest the appointment elsewhere, it would be questionable whether it should be in the President alone, in the department of justice, or in the courts. The marshal is pre-eminently the officer of the courts; and in case of a vacancy, Congress has, in fact, passed a law bestowing the temporary appointment of the marshal upon the justice of the circuit in which the district where the vacancy occurs is situated.

But as the Constitution stands, the selection of the appointing power, as between the functionaries named, is a matter resting in the discretion of Congress. And looking at the subject in a practical light, it is perhaps better that it should rest there, than that the country should be harassed by the endless controversies to which a more specific direction on this subject might have given rise. The observation in the case of Hennen, to which reference is made (13 Pet. 258), that the appointing power in the clause referred to "was no doubt intended to be exercised by the department of the government to which the official to be appointed most appropriately belonged," was not intended to define the constitutional power of Congress in this regard, but rather to express the law or rule by which it should be governed. The cases in which the courts have declined to exercise certain duties imposed by Congress stand upon a different consideration from that which applies in the present case. The law of 1792, which required the Circuit Courts to examine claims to Revolutionary pensions, and the law of 1849, authorizing the district judge of Florida to examine and adjudicate upon claims for injuries suffered by the inhabitants of Florida from the American army in 1812, were rightfully held to impose upon the courts powers not judicial, and were therefore void. But the duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void. It cannot be affirmed that the appointment of the officers in question could, with any greater propriety, and certainly not with equal regard to convenience, have been assigned to any other depositary of official power capable of exercising it. Neither the President, nor any head of department, could have been equally competent to the task.

In our judgment Congress had the power to vest the appointment of the supervisors in question in the Circuit Courts.

The doctrine laid down at the close of counsel's brief that the State and National governments are co-ordinate and altogether equal, on which their whole argument indeed is based, is only partially true.

The true doctrine, as we conceive, is this, that whilst the States are really sovereign as to all matters which have not been granted to the jurisdiction and control of the United States, the Constitution and constitutional laws of the latter are, as we have already said, the supreme law of the land; and when they conflict with the laws of the States, they are of paramount authority and obligation. This is the fundamental principle on which the authority of the Constitution is based, and unless it be conceded in practice, as well as theory, the fabric of our institutions, as it was contemplated by its founders, cannot stand. The questious involved have respect not more to the autonomy and existence of the States, than to the continued

in virtue of his original jurisdiction; though the court was of opinion that it could issue a new writ upon the papers before it in virtue of its own appellate jurisdiction, and would do so if the case required it; but being of opinion that there was no case on the merits the application was discharged. But in this case, however it may have been in that, it is clear that the writ, whether acted upon by the justice who issued it, or by this court, would in fact require a revision of the action of the Circuit Court by which the petitioner was committed, and such revision would necessarily be appellate in its character. This appellate character of the proceeding attaches to a large portion of cases on habeas corpus, whether issued by a single judge or by a court. The presence of this feature in the case was no objection to the issue of the writ by the associate justice, and is essential to the jurisdiction of this court. The justice who issued it could undoubtedly have disposed of the case himself, though not, at the time, within his own circuit. A justice of this court can exercise the power of issuing the writ of habeas corpus in any part of the United States where he happens to be. But as the case is one of which this court also has jurisdiction, if the justice who issued the writ found the questions involved to be of great moment and difficulty, and could postpone the case here for the consideration of the whole court without injury to the petitioner, we see no good reason why he should not have taken this course, as he did. It had merely the effect of making the application for a discharge one addressed to the court, instead of one addressed to a single justice. This has always been the practice of English judges in cases of great consequence and difficulty, and we do not see why it may not be done here. Under the Habeas Corpus Act, indeed, it was the regular course to take bail and recognize the party to appear in the King's Bench or Assizes; though the judge would discharge absolutely if the case was clearly one of illegal imprisonment. Hab. Corp. Act, § 3; Com. Dig., Hab. Corp., F; Bac. Abr., Hab. Corp., B. 13; 1 Chitty's Gen. Pract. 685-688. Of course, under our system, no justice will needlessly refer a case to the court when he can decide it satisfac

torily to himself, and will not do so in any case in which injury will be thereby incurred by the petitioner. No injury can be complained of in this case, since the petitioner was allowed to go at large on reasonable bail.

As to the merits of the case, there can be no serious

question that the indictment charges an offense specified in the act of Congress. § 5515. Any defect of form in making the charge would be at most an error, of which this court could not take cognizance on habeas corpus. The principal question is, whether Congress had constitutional power to enact a law for punishing a State officer of election for the violation of his duty under a State statute in reference to an election of a representative to Congress. As this question has been fully considered in the previous case, it is unnecessary to add any thing further on the subject. Our opinion is, that Congress had constitutional power to enact the law; and that the cause of commitment was lawful and sufficient.

The petitioner, therefore, must be remanded to the custody of the marshal for the Southern District of Ohio, and it is so ordered.

NEW YORK COURT OF APPEALS ABSTRACT.

CORPORATION -SUBSCRIPTION TO STOCK WHAT DOES NOT AMOUNT TO PRIVITY OF CONTRACT.-Defendant, with others, described as "citizens of Unionville and vicinity," subscribed an instrument wherein they pledged themselves to subscribe for and take stock in and for the construction of the Lake Ontario Shore Railroad to the amount set opposite to their

The

names respectively, on condition said road be located and built through or north of the village of Unionville, in Parma." Held, that the company building such a railroad could not maintain an action against defendant to compel him to pay for its stock to the amount set opposite his name in the instrument. If any action could be maintained upon it by any person it must be by some one of the subscribers or his assignee. The legal effect of the contract is restricted to them. general rule applicable is that where two persons, for a consideration sufficient as between themselves, covenant to do some act which if done would incidentally result in the benefit of a mere stranger, that stranger has not a right to enforce the covenant, although one of the contracting parties might enforce it as against the other. Judgment affirmed. Lake Ontario Shore Railroad Co., appellant, v. Curtis. Opinion by Danforth, J.

[Decided Feb. 24, 1880.]

MASTER AND SERVANT-DUTY OF MASTER-SAFE MACHINERY-CO-SERVANT, WHO IS NOT.-Plaintiff's intestate, a locomotive engineer on defendants' railroad, was killed by the explosion of a locomotive which he was running. It was found that the outer sheet of the boiler of the locomotive through which the staybolts passed was rusted so as to considerably reduce its thickness and that a number of the bolts were corroded and broken. Some time previous to the accident this engine was reported deficient and sent to the general repair shop of the railroad for repairs. The master mechanic of the shop, a competent man, gave directions for the thorough repair of such locomotive, but the mechanics to whom the work was committed did not make as complete an examination as they might have done, and did not discover the broken stay bolts, etc., which would have been discovered if they had made an extended examination. Held, that defendant would not have been absolved from liability for the death of intestate on the ground that the negligence of the mechanics was that of coemployees of intestate. The cases of Flike v. Boston & Albany R. R. Co., 53 N. Y. 551; Booth v. Boston & Albany R. R. Co., 73 id. 39; Mehan v. Syracuse, etc., R. R. Co., 73 id. 585, are decisive on this point. The principle of those cases is that acts which the master as such is bound to perform for the safety and protection of his employees cannot be delegated so as to exonerate the former from liability to a servant who is injured by the omission to perform the act or duty, or by its negligent performance, whether the nonfeasance or misfeasance is that of a superior officer, agent or servant or of a subordinate, or inferior agent or servant to whom the doing of the act or the performance of the duty has been committed. In either case in respect to such act or duty, the servant who undertakes or omits to perform it is the representative of the master, and not a mere co-servant with the one who sustains the injury. The act or omission is the act or omission of the master, irrespective of the grade of the servant whose negligence caused the injury, or of the fact whether it was or was not practicable for the master to act personally, or whether he did or did not do all that he personally could do by selecting competent servants or otherwise to secure the safety of his employees. In this case the neglect to maintain the engine in proper repair was the neglect of a duty devolving upon the master. The duty of maintaining machinery in repair for the protection and safety of employees is the same in kind as the duty of furnishing a safe and proper machine in the first instance. Ford v. Fitchburg R. R. Co., 110 Mass. 240. See also, Malone v. Hathaway, 64 N. Y. 5. Judgment affirmed. Fuller, Administratrix, v. Jewett, Receiver, appellant. Opinion by Andrews, J. [Decided Feb. 3, 1880.]

TAXATION-STATUTORY CONSTRUCTION SEIZURE OF PROPERTY OF STRANGER ON THE DEBTOR'S LAND WHEN REPLEVIN LIES AGAINST GOODS SEIZED FOR

TAX.-It is provided in the charter of Buffalo (Laws 1870, ch. 519, tit. 5, § 13), in relation to the collection of taxes, that the comptroller shall issue the warrant commanding the collector to collect from the several persons taxed the taxes set opposite their several names, and section 19 provides that the collector shall demand the taxes, and that he shall make the amount thereof out of the goods and chattels of the persons opposite to whose names such taxes are set down, and section 22 provides that "goods and chattels in the possession of the person opposite to whose names the taxes are set down, or upon the lands for which such taxes are assessed, shall be deemed to belong to such persons, and no claim of property made thereto by any other person shall be available to prevent a sale." Held, not to apply to property transiently upon such taxed lands, and that a seizure of such property by a tax collector was unlawful, and the property taken might be replevied from him by the owner. While section 207 of the old Code provides that plaintiff's affidavit in an action to recover possession of personal property must show that the property claimed was not taken for a tax, and 2 R. S. 522, § 4, provides that "no replevin shall lie for any property taken by virtue of any warrant for the collection of any tax assessment or fine," yet if the tax collector illegally seizes the property of A to satisfy the tax of B, A can maintain an action of replevin for its recovery. Stockwell v. Vietch, 15 Abb. Pr. 412; Thompson v. Button, 14 Johns. 84; Judd v. Fox, 9 Cow. 259. As the warrant in such case does not authorize or justify the seizure of the property it cannot properly be said to be taken by virtue thereof. The provision of the charter mentioned, that property found upon land which the tax is on must be deemed to belong to the one owing the tax, cannot be taken literally. If one should drive upon the land taxed with a horse and wagon simply to make a call as a visitor, or as a physician, or as an officer, could that property be taken out of his hands to satisfy the tax? The law-makers did not intend that this law should be applied in such cases. The Legislature cannot always foresee all the possible applications of the general language they use, and the courts should construe the statutes and limit their operation so that they shall not produce absurd, unjust, and inconvenient results. Order affirmed. Lake Shore and Michi

of the first count were correct. Held, that plaintiff could not recover on the second count, even though a contract in conformity with its allegations was shown. The law touching contracts like the one here in question has been often considered by this court, and is well settled by our adjudications. Marshall v. B. & O. R. R. Co., 16 How. 314; Tool Co. v. Norris, 2 Wall. 45; Trist v. Child, 21 id. 441; Coppel v. Hall, 7 id. 558. Frauds of the class to which the one here disclosed belongs are an unmixed evil. Whether forbidden by a statute or condemned by public policy, the result is the same. No legal right can spring from such a source. They are the sappers and miners of the public welfare, and of free government as well. The latter depends for its vitality upon the virtue and good faith of those for whom it exists, and of those by whom it is administered. Corruption is always the forerunner of despotism. In Trist v. Child, supra, 452, while recognizing the validity of an honest claim for services honestly rendered, this court said: "But where such services are blended and confused with those which are forbidden, the whole is a unit and indivisible. That which is bad destroys that which is good, and they perish together." * * "Where the taint exists it affects fatally, in all its parts, the entire body of the contract. In all such cases potior conditio defendentis. Where there is turpitude the law will help neither party." These remarks apply here. The contract is clearly illegal and this action was brought to enforce it. This conclusion renders it unnecessary to consider the plaintiff's other assignments of error. The case being fundamentally and fatally defective, he could not recover. Judgment of Supreme Court of District of Columbia affirmed. Meguier, plaintiff in error, v. Corwine, executor. Opinion by Swayne, J.

*

LEASE WHEN TENANT NOT LIABLE ON COVENANT FOR RENT -SEIZURE OF PREMISES BY MILITARY AUTHORITY.—The firm of G. W. & M., in 1859, leased real estate in Memphis, from B. for five years, and executed their promissory notes for the stipulated payments of rent during the term of the lease. In 1862 the Federal army took possession of Memphis. At that time B. was within the Confederate lines and in sympathy with the rebellion. By order of the Federal authorities, rent of buildings in Memphis, belonging to persons within the Confederate lines, was forbidden to be paid to the agents of such persons and directed to be paid to the Federal quartermaster. For a refusal to pay rent to the Federal quartermaster the firm were

[Decided March 9, 1880.]

son of B. came from the south and received possession of the premises from the Federal authorities. Held, that the firm were not liable to B. upon the notes given for rent for the period when the premises leased from the time they were dispossessed by the Federal authorities. Melville v. De Wolf, 4 Ell. & Bl. 844; Esposito v. Bowden, 7 id. 763; Barker v. Hodgson, 3 M. & S. 267. Decree of Supreme Court of Tennessee reversed. Gates et al., plaintiffs in error, v. Goodloe, executor. Opinion by Harlan, J.

CONSIDERATION ILLICIT INTERCOURSE NOT CONSIDERATION FOR PROMISE TO MARRY. - In an action for a breach of promise of marriage plaintiff testified in substance that the agreement between the parties was that the plaintiff should then presently surrender her person to the defendant, and that in consideration of such surrender the defendant would afterward marry her. "He promised me that if I should give up myself to him that he should marry me." "Q. What did you say to that?" "A. At first I refused; at last I, of course, gave myself up to him." Held,

that upon well-settled principles plaintiff should not recover upon a contract of this character. As being a contract for illicit cohabitation, it is tainted with immorality. Story on Cont., § 458; Steinfeld v. Levy, 16 Abb. Pr. N. S. 26. And a charge that "If defendant, taking advantage of the promise under which plaintiff was acting, has had illicit relations and has seduced the plaintiff, that is another element proper for the jury to consider," was erroneous. The evidence com ing from the mouth of the plaintiff herself showed that this case is not one of the character assumed as the basis for this instruction. It was not a case in which the defendant, taking advantage of the trust and confidence which may be fairly supposed to exist between parties who have in apparent good faith made mutual promises of marriage, has abused the confidence of a female, and induced her to yield him favors which she might have otherwise withheld. The agreement to yield her person to him was one appearing to have been deliberately made in advance, and when there had been no promise of marriage. It is clear, therefore, that the hypothesis upon which this instruction was based could not be assumed by the jury for the purpose of fixing the amount of damages the plaintiff was to recover. Hanks v. Naglee. Opinion per Curiam. (Decided Dec. 26, 1879.) To the same effect Borngneres v. Boulon. Opinion by McKinstry, J. [Decided Feb. 7, 1880.]

DAMAGES

UPON BREACH OF CONTRACT FOR WORK

AND MATERIALS.- Plaintiff agreed to furnish and defendant to receive a certain quantity of iron work at a stipulated price. After a part of the iron work had been delivered defendant refused to receive the remainder. In an action upon this contract, held, that plaintiff was entitled to recover, for the iron work furnished, such a proportion of the whole contract price as the quantity which he furnished bears to the whole quantity contracted for; and in addition to that, the profit which he would have made if he had been allowed to complete his contract, together with the damages he incurred in providing means for furnishing the residue of the iron work called for by the contract, but not delivered because of the defendant's breach. More succinctly stated, the rule is, recompense to the plaintiff for the part performance, and indemnity for his loss in respect to the part unexecuted. Hale v. Trout, 35 Cal. 229; Black v. Woodrow, 39 Md. 194; Friedlander v. Pugh, 43 Miss. 111; Clark v. Marsiglia, 1 Denio, 317; Phil., W. & B. R. R. Co. v. Howard, 13 How. 307-344. Upstone v. Weir. Opinion by Sharpstein, J.

[Decided Feb. 5, 1880.]

CRIMINAL LAW.

CONSTITUTIONAL LAW COMPELLING WITNESS TO REVEAL CRIMINAL ACT.-A statute of New Hampshire, which provides that a clerk, servant, or agent shall not be excused from testifying against his principal, but that his testimony so given shall not in any prosecution be used as evidence against himself, and that he shall not be thereafter prosecuted for any offense so disclosed by him; held, not unconstitutional as depriving the witness of the protection afforded by the provision of the Bill of Rights of that State, that no subject shall be compelled to accuse or furnish evidence against himself. In Emory's Case, 107 Mass. 172, under a statute of Massachusetts, which provided that no person should be excused from testifying to any corrupt practice or improper conduct of the State police, on the ground that his answers might tend to criminate himself or to disgrace him, or otherwise render him infamous, and also provided that the testimony of no such witness should be used against him,

in any civil or criminal proceeding, it was held that the statute did not afford full indemnity to the witness, because he still remained liable to prosecution criminally for any matters in respect to which his testimony might relate. If the statute in question went no further in this respect, that case would be directly in point. But it provides not only that the testimony of the clerk, servant, or agent shall not be used as evidence against the witness, but also that he shall not be thereafter prosecuted for any offense so disclosed by him. This provision has the effect to except from the operation of the statute all clerks, servants, and agents, upon their testifying against their principals. The conditional exemption becomes absolute when the witness testifies; and being no longer liable to prosecution, he is not compelled, by testifying, to accuse or furnish evidence against himself. An objection that the witness was not bound to answer because his answers would tend to degrade him, held, not sustainable. This doctrine of the common law it is within the power of the Legislature to change. People v. Hackley, 24 N. Y. 83. New Hampshire Supreme Court, June Term, 1878. State of New Hampshire v. Rowell. Opinion by Smith, J. (To appear in 58 N. H. 314.)

-TWICE IN JEOPARDY-ONE ACT IN VIOLATION OF

Minnesota TWO STATUTES.-Under the statutes of simple larceny of property not exceeding twenty dollars in value is a misdemeanor punishable by imprisonment in jail or fine. Larceny in a shop is a felony punishable by imprisonment in the State prison. Held, that a conviction for simple larceny in stealing a hat worth four dollars, which was taken in a shop, was allowable, and was a bar to a prosecution for the felony. The court say: "As to the proposition involved in this conclusion, the authorities are irreconcilable, but we think it is supported by the weight of authority and the better reason. Regina v. Elrington, 9 Cox's Cr. Cases, 88; Com. v. Curtis, 11 Pick. 134. And see Com. v. Cunningham, 13 Mass. 245; State v. Lewis, 27 Hawks, 98; State v. Shepard, 7 Conn. 54; State v. Chapin, 2 Swan, 493; 1 Bishop's Cr. Laws, $$ 885-889, et seq.; 1 Bennet & Heard's Lead. Cr. Cases (2d ed.) 538, where the following rule of law is laid down, viz.: 'A former conviction or acquittal of a minor offense is a bar to a prosecution for the same act, charged as a higher crime, whenever the defendant on trial of the latter might be legally convicted of the former, had there been no other prosecution.' In 1 Wharton's Am. Cr. Law, § 563, the statement is that if, on a trial of the major offense, there can be a conviction of the minor, then a former conviction or acquittal of the minor will bar the major.' These authorities all proceed upon the basis that a second conviction, after such former conviction, is a putting in jeopardy twice for the same offense. The authorities, however, do not hold, and we are not to be understood as holding, that a former conviction of a minor offense, obtained by fraud and collusion, for the very purpose of preventing a conviction of a major offense, will bar a second prosecution for the latter." Minnesota Sup. Ct., March 1, 1880. State of Minnesota v. Wiles. Opinion by Berry, J.

CORRESPONDENCE.

To the Editor of the Albany Law Journal.

Thanks for your note to-day on the shameful mismanagement of New York Reports. 75 N. Y. was furnished to some lawyers as early as January 26th. We, who are not customers of Banks Bros., nor otherwise favored, have made repeated applications to them and to A. B. Banks, the publisher at Albany, personally and by formal written letter, in vain. Apparently