amount of such security, to be determined by the court, shall, as nearly as circumstances admit, be estimated in the same way. And creditors whose debts are fully secured shall not be entitled to vote upon or to sign such resolution without first relinquishing such security for the benefit of the estate.

The debtor, unless prevented by sickness or other cause satisfactory to such meeting, shall be present at the same, and shall answer any inquiries made of him; and he, or, if he is so prevented from being at such meeting, some one in his behalf, shall produce to the meeting a statement showing the whole of his assets and debts, and the names and addresses of the creditors to whom such debts respectively are due.

Such resolution, together with the statement of the debtor as to his assets and debts, shall be presented to the court; and the court shall, upon notice to all the creditors of the debtor of not less than five days, and upon hearing, inquire whether such resolution has been passed in the manner directed by this section; and if satisfied that it has been so passed, it shall, subject to the provision hereinafter contained, and upon being satisfied that the same is for the best interest of all concerned, cause such resolution to be recorded and statement of assets and debts to be filed; and until | such record and filing shall have taken place, such resolution shall be of no validity. And any creditor of the debtor may inspect such record and statement at all reasonable times.

The creditors may, by resolution passed in the manner and under the circumstances aforesaid, add to, or vary the provisions of, any composition previously accepted by them, without prejudice to any persons taking interests under such provisions who do not assent to such addition or variation. And any such additional resolution shall be presented to the court in the same manner and proceeded with in the same way and with the same consequences as the resolution by which the composition was accepted in the first instance. The provisions of a composition accepted by such resolution in pursuance of this section shall be binding on all the creditors whose names and addresses and the amounts of the debts due to whom are shown in the statement of the debtor produced at the meeting at which the resolution shall have been passed, but shall not affect or prejudice the rights of any other creditor.

Where a debt arises on a bill of exchange or promissory note, if the debtor shall be ignorant of the holder of any such bill of exchange or promissory note, he shall be required to state the amount of such bill or note, the date on which it falls due, the name of the acceptor and of the person to whom it is payable, any other particulars within his knowledge respecting the same; and the insertion of such particulars shall be deemed a sufficient description by the debtor in respect to such debt.

Any mistake made inadvertently by a debtor in the statement of his debts may be corrected upon reasonable notice, and with the consent of a general meeting of his creditors.

Every such composition shall, subject to priorities declared in said act, provide for a pro-rata payment or satisfaction, in money, to the creditors of such debtor in proportion to the amount of their unsecured debts, or their debts in respect to which any such security shall have been duly surrendered and given up.

terested, and on reasonable notice; and any disobedience of the order of the court made on such motion shall be deemed to be a contempt of court. Rules and regulations of court may be made in relation to proceedings of composition herein provided for in the same manner and to the same extent as now provided by law in relation to proceedings in bankruptcy.

If it shall at any time appear to the court, on notice, satisfactory evidence, and hearing, that a composition under this section cannot, in consequence of legal difficulties, or for any sufficient cause, proceed without injustice or undue delay to the creditors or to the debtor, the court may refuse to accept and confirm such composition, or may set the same aside; and, in either case, the debtor shall be proceeded with as a bankrupt in conformity with the provisions of law, and proceedings may be had accordingly; and the time during which such composition shall have been in force shall not, in such case, be computed in calculating periods of time prescribed by said act.

SECT. 18. That from and after the passage of this act the fees, commissions, charges and allowances, excepting actual and necessary disbursements, of, and to be made by, the officers, agents, marshals, messengers, assignees, and registers in cases of bankruptcy, shall be reduced to one-half of the fees, commissions, charges, and allowances heretofore provided for or made in like cases: Provided, That the preceding provision shall be and remain in force until the justices of the Supreme Court of the United States shall make and promulgate new rules and regulations in respect to the matters aforesaid, under the powers conferred upon them by sections ten and forty-seven of said act, and no longer, which duties they shall perform as soon as may be. And said justices shall have power under said sections, by general regulations, to simplify and, so far as in their judgment will conduce to the benefit of creditors to consolidate the duties of the register, assignee, marshal, and clerk, and to reduce fees, costs, and charges, to the end that prolixity, delay, and unnecessary expense may be avoided. And no register or clerk of the court, or any partner or clerk of such register or clerk of court, or any person having any interest with either in any fees or emoluments in bankruptcy, or with whom such register or clerk of court shall have any interest in respect to any matter in bankruptcy, shall be of counsel, solicitor or attorney, either in or out of court, in any suit or matter pending in bankruptcy in either the Circuit or District Court of his district, or in an appeal therefrom. Nor shall they, or either of them, be executor, administrator, guardian, commissioner, appraiser, divider, or assignee of or upon any estate within the jurisdiction of either of said courts of bankruptcy; nor be interested, directly or indirectly, in the fees or emoluments arising from either of said trusts. And the words "except such as are established by this act or by law," in section ten of said act, are hereby repealed.

SECT. 19. That it shall be the duty of the marshal of each district in the month of July of each year, to report to the clerk of the District Court of such district, in a tabular form, to be prescribed by the justices of the Supreme Court of the United States, as well as such other or further information as may be required by said justices,

First, the number of cases in bankruptcy in which the warrant prescribed in section eleven of said act has come to his hands during the year ending June

Secondly, how many such warrants were returned, with the fees, costs, expenses, and emoluments thereof, respectively and separately;

Thirdly, the total amount of all other fees, costs, expenses, and emoluments, respectively and separately earned or received by him during such year from or in respect of any matter in bankruptcy;

Fourthly, a summarized statement of such fees, costs, and emoluments, exclusive of actual disbursements in bankruptcy, received or earned for such year; Fifthly, a summarized statement of all actual disbursements in such cases for such year.

And in like manner, every register shall, in the same month and for the same year, make a report to such clerk of,

First, the number of voluntary cases in bankruptcy coming before him during said year;

Secondly, the amount of assets and liabilities, as nearly as may be, of the bankrupts;

Thirdly, the amount and rate per centum of all dividends declared;

Fourthly, the disposition of all such cases; Fifthly, the number of compulsory cases in bankruptcy coming before him, in the same way;

Sixthly, the amount of assets and liabilities, as nearly as may be, of such bankrupts;

Seventhly, the disposition of all such cases; Eighthly, the amounts and rate per centum of all dividends declared in such cases;

Ninthly, the total amount of fees, charges, costs, and emoluments of every sort, received or earned by such register during said year in each class of cases above stated.

And in like manner, every assignee shall, during said month, make like return to such clerk of,

First, the number of voluntary and compulsory cases, respectively and separately, in his charge during said year;

Secondly, the amount of assets and liabilities therein, respectively and separately;

Thirdly, the total receipts and disbursements therein, respectively and separately;

Fourthly, the amount of dividends paid or declared, and the rate per centum thereof, in each class, respectively and separately;

Fifthly, the total amount of all his fees, charges, and emoluments of every kind therein, earned or received; Sixthly, the total amount of expenses incurred by him for legal proceedings and counsel-fees;

Seventhly, the disposition of the cases respectively; Eighthly, a summarized statement of both classes as aforesaid.

And in like manner, the clerk of said court, in the month of August in each year, shall make up a statement for such year, ending June thirtieth, of,

First, all cases in bankruptcy pending at the beginning of the said year;

Secondly, all of such cases disposed of; Thirdly, all dividends declared therein; Fourthly, the number of reports made from each assignee therein;

Fifthly, the disposition of all such cases;

Sixthly, the number of assignees' accounts filed and settled;

Seventhly, whether any marshal, register or assignee has failed to make and file with such clerk the reports by this act required, and, if any have failed to make such reports, their respective names and residences.

And such clerk shall report in respect of all cases begun during said year.

And he shall make a classified statement, in tabular form, of all his fees, charges, costs and emoluments, respectively, earned or accrued during said year, giving each head under which the same accrued, and also the sum of all moneys paid into and disbursed out of court in bankruptcy, and the balance in hand or on deposit.

And all the statements and reports herein required shall be under oath, and signed by the persons respectively making the same.

And said clerk shall, in said month of August, transmit every such statement and report so filed with him together with his own statement and report aforesaid, to the attorney-general of the United States.

Any person who shall violate the provisions of this section shall, on motion made, under the direction of the attorney-general, be by the District Court dismissed from his office, and shall be deemed guilty of a misdemeanor, and, on conviction thereof, be punished by a fine of not more than five hundred dollars, or by imprisonment not exceeding one year.

SECT. 20. That in addition to the officers now authorized to take proof of debts against the estate of a bankrupt, notaries public are hereby authorized to take such proof, in the manner and under the regulations provided by law; such proof to be certified by the notary and attested by his signature and official seal.

SECT. 21. That all acts and parts of acts inconsistent with the provisions of this act be, and the same are hereby repealed.

CONTEMPT-POWER OF COURTS TO DISBAR ATTORNEYS.

SUPREME COURT OF THE UNITED STATES-OCTOBER TERM, 1873.

EX PARTE JAMES S. ROBINSON, PETITIONER.

1. The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.

2. The act of congress of March 2, 1831, entitled "An act declaratory of the law concerning contempts of court," limits the power of the Circuit and District Courts of the United States to three classes of cases: 1st. Where there has been misbehavior of a person in the presence of the courts, or so near thereto as to obstruct the administration of justice; 2d. Where there has been misbehavior of any officer of the courts in his official transactions; and 3d. Where there has been disobedience or resistance by any officer, party, juror, witness or other person to any lawful writ, process, order, rule, decree or command of the courts.

3. The 17th section of the judiciary act of 1789, in prescribing fine or imprisonment as the punishment which may be inflicted by the courts of the United States for contempts, operates as a limitation upon the manner in which their power in this respect may be exercised, and is a negation of all other modes of punishment.

4. The power to disbar an attorney is possessed by all courts which have authority to admit attorneys to practice. But the power can only be exercised where there has been such conduct on the part of the party complained of as shows him to be unfit to be a member of the profession; and before judgment disbarring him can be rendered, he should have notice of the grounds of complaint against him, and ample opportunity of explanation and defense.

5. Mandamus is the appropriate remedy to restore an attorney disbarred where the court below has exceeded its jurisdiction in the matter.

Petition for mandamus to the judge of the District Court of the United States for the western district of Arkansas.

Mr. Justice FIELD delivered the opinion of the court.

On the 16th day of July, 1873, the grand jury of the western district of Arkansas reported to the District Court of the United States for the district, then in session at Fort Smith, that they had made every effort in their power to have a witness by the name of Stephenson summoned to appear before them; that for this purpose a subpoena for the witness had been placed the day previous in the hands of a deputy marshal by the name of Sheldon, for service; That the deputy marshal, on the same day, went to the town of Van Buren, as he said, to make the service; that after he had left, the witness was seen on the streets at Fort Smith, and the subpoena was on that morning returned unserved; that they had learned from evidence before them that the witness knew that a subpoena was issued for him, and had for that reason come to Fort Smith, "but," continued the report, "after seeing the attorney, J. S. Robinson, in the Nash case, very suddenly absented himself." The jury, therefore, prayed the court to issue an order that the witness, Stephenson, be brought before them.

Upon this report, without other complaint, the court ordered that Sheldon, the deputy-marshal, Stephenson, the witness, and Robinson, the attorney, "show cause why they should not be punished as for a contempt."

Two days afterward, on the 18th of July, the petitioner filed the response to the order of the deputymarshal. The judge then reminded the petitioner that there was also a rule against him, to which he replied: "Yes, sir; I know it and I am here to respond. I don't know what there is for me to answer. "It," referring to the report of the grand jury, "says I saw Silas R. Stephenson. I do not know what the grand jury has to do with my private business in my law office," and was proceeding to reflect upon the action of the grand jury, when the judge said: "You must answer in writing, Mr. Robinson;" to which the petitioner replied, "the rule itself does not require me to respond in writing." Upon this the judge said, turning to the clerk, "it should have done so; you will amend the order if it does not, Mr, Clerk." The petitioner declined to answer the rule until it was amended. The judge then said: "Well, I will make the order for you to respond in writing now. Mr. Clerk you will enter an order requiring Mr. Robinson to answer the rule in writing." Upon which the petitioner said "I shall answer nothing;" and thereupon immediately, without time for another word, the judge ordered the clerk to strike the petitioner's name from the roll of attorneys, and the marshal to remove him from the bar.

This account of the language used by the petitioner and the judge is taken from the latter's response to the alternative writ issued by this court. The judge states at the same time that the tone and manner of the petitioner were angry, disrespectful, and defiant; and that regarding the words "I shall answer nothing," and the tone in which they were uttered as in themselves grossly and intentionally disrespectful, as an expression of an intention to disobey and treat with contempt an order of the court, and believing that the petitioner intended to intimidate him in the discharge of his duties, he felt it due to himself and his office to inflict summary and severe punishment upon the petitioner.

The order of the court disbarring the petitioner,

made at the time, and entered in the minutes of the court kept by the clerk, was declared by the judge to be erroneous in form, and afterward, on the 28th of July, a more formal order was entered nunc pro tunc. This latter order recites the report of the grand jury mentioned above, the rule to show cause issued thereon why the parties should not be punished as for a contempt, amended from the original order by the insertion of the words, "forthwith in writing and under oath;" and that the petitioner having notice at the time that he was required to respond to the rule, "in a grossly contemptuous, contumacious, and defiant manner," in open court, refused to respond in writing; and then proceeds to decree that, for his contempt committed in open court, as well as for his contempt committed in refusing to respond to the rule, the license of the petitioner as an attorney and counselor at law and solicitor in chancery be vacated; that the petitioner be disbarred from further practice in the court, and that his name be stricken from the roll of attorneys, counselors and solicitors of the court.

Before this amended order was entered the petitioner, through counsel, filed a motion to vacate the judgment disbarring him upon various grounds, which were specified. After its entry a motion to set aside the order as amended was made, in which the petitioner adopted the grounds of the original motion and added others. The substance of the more important of these was, that no charges had been previously preferred in writing and filed against him; that he had had no notice of any charges; that the report of the grand jury contained no charge which he could be required to answer; that no rule had been served upon him to show cause why he should not be disbarred; that he had had no trial previous thereto, and had been denied the right of being heard in his defense; and that the court had no jurisdiction under the circumstances to render the judgment disbarring him.

The petitioner also set up among the grounds upon which he would rely, that the sentence he uttered, "I shall answer nothing," was incomplete, and that he was prevented from finishing it by the action of the judge, in interrupting him with the judgment disbarring him; that the sentence completed would have been "I shall answer nothing until the order to answer the rule in writing shall be served upon me."

The petitioner also disclaimed any intention to commit a contempt of the court, or to act in defiance of its orders or authority at the time, and averred that he was not conscious of the conduct attributed to him toward the court. This statement was verified by his oath; but the motion was denied.

The petitioner now asks from this court for a mandamus upon the judge to vacate the order disbarring him, and to restore him to the roll of attorneys and counselors. In his petition, which is verified, he refers to the proceedings of the court below, the record of which he produces, and states that in the interview which the grand jury mentioned there was no allusion made to the Nash case or to the grand jury, and that the consultation related to a totally different matter.

The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.

But the power has been limited and defined by the act of congress of March 2, 1831.* The act, in terms, applies to all courts; whether it can be held to limit the authority of the Supreme Court, which derives its existence and powers from the constitution, may perhaps be a matter of doubt. But that it applies to the Circuit and District Courts there can be no question. These courts were created by act of congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to them the law specifying the cases in which summary punishment for contempts may be inflicted. It limits the power of these courts in this respect to three classes of cases: 1st, where there has been misbehavior of a person in the presence of the courts, or so near thereto as to obstruct the administration of justice; 2d, where there has been misbehavior of any officer of the courts in his official transactions; and, 3d, where there has been disobedience or resistance by any officer, party, juror, ❘ witness or other person, to any lawful writ, process, order, rule, decree or command of the courts. seen, the power of these courts in the punishment of contempts can only be exercised to insure order and decorum in their presence, to secure faithfulness on the part of their officers in their official transactions, and to enforce obedience to their lawful orders, judg-| ments and processes.

As thus

If we now test the report of the grand jury by this statute, we find nothing in it which justified any proceeding whatever as for a contempt on the part of the court below against Robinson. No act of his is mentioned which could constitute within the statute a contempt either of the court or its judge. The allegation that the witness Stephenson, after seeing Robinson, had suddenly absented himself, amounted to nothing more than an insinuation that possibly he may have been advised to that course by Robinson. There was no averment of any fact which the court could notice or the attorney was bound to explain.

Whatever contempt was committed by the petitioner, consisted in the tone and manner in which his language to the court was uttered. On this hearing, we are bound to take the statements in that respect of the judge embodied in his order as true, for the question before us is not whether the court erred, but whether it had any jurisdiction to disbar the petitioner for the alleged contempt.

The law happily prescribes the punishment which the court can impose for contempts. The 17th section of the judiciary act of 1789 declares that the court shall have power to punish contempts of their authority in any cause or hearing before them, by fine or imprisonment, at their discretion. The enactment is a limitation upon the manner in which the power shall be exercised, and must be held to be a negation of all other modes of punishment. The judgment of the court disbarring the petitioner, treated as a punishment for a contempt, was, therefore, unauthorized and void.

The power to disbar an attorney proceeds upon very different grounds. This power is possessed by all courts which have authority to admit attorneys to practice. But the power can only be exercised where there has been such conduct on the part of the parties complained of as shows them to be unfit to be members of the profession. Parties are admitted to the

* 4 Statutes at Large, 487.

profession only upon satisfactory evidence that they possess fair private character and sufficient legal learning to conduct causes in court for suitors. The order of admission is the judgment of the court that they possess the requisite qualifications both in character and learning. They become by such admission officers of the court, and, as said in Ex parte Garland,+ "they hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded." Before a judgment disbarring an attorney is rendered, he should have notice of the grounds of complaint against him and ample opportunity of explanation and defense. This is a rule of natural justice, and is as applicable to proceedings taken to deprive an attorney of his right to practice his profession, as it is to proceedings taken to reach his property. And such has been the general, if not the uniform, practice of the courts of this country and of England. There may be cases, undoubtedly, of such gross and outrageous conduct in open court on the part of the attorney, as to justify very summary proceedings for his suspension or removal from office; but even then, he should be heard before he is condemned. The principle that there must be citation before hearing, and hearing or opportunity of being heard before judgment, is essential to the security of all private rights. Without its observance no one would be safe from oppression wherever power may be lodged.

That mandamus is the appropriate remedy in a case like this to restore an attorney disbarred, where the court below has exceeded its jurisdiction in the matter, was decided in Ex parte Bradley, reported in the 7th of Wallace. It would serve no useful purpose to repeat the reasons by which this conclusion was reached, as they are fully and clearly stated in that case, and are entirely satisfactory.

A peremptory mandamus must issue, requiring the judge of the court below to vacate the order disbarring the petitioner, and to restore him to his office; and it is so ordered.

Mr. Justice Miller dissented.

COURT OF APPEALS ABSTRACT.

ARREST AND BAIL-SHERIFF.

G. brought an action against R. to recover damages for assault and battery. R. was arrested and admitted to bail in the sum of $2,000. C. and F. were his sureties. G. obtained a judgment against R., and an execution was issued against his body. C. delivered R. to the sheriff and took a certificate of surrender. A few days after, acting under the provision of chapter 813, Laws of 1869, the sheriff demanded of C. $25 for the board of R., which C. declined to pay; the sheriff then discharged R., and C. took no further steps at that time. The sheriff made a return that R. could not be found. G. then sued C. on the bail bond, the other surety having died, and recovered a judgment against him. C. then brought this action against the sheriff for making a false return, and alleged that R. could have been found if proper effort had been made. Defendant demurred, and the demurrer was

+4 Wall. 378.

Ex parte Heyfron, 7 How. (Miss.) 127; People v. Turner, 1 Cal. 148; Fletcher v. Dangerfield, 20 id. 430; Beene v. State, 22 Ark. 157; Ex parte Bradley, 7 Wall. 364; Bradley v. Fisher, 13 id. 354.

overruled; he then put in an answer denying that his return was false and setting up the surrender of R. The jury rendered a verdict in favor of plaintiff for the amount claimed, which was affirmed by the General Term. Held, ro error; that defendant prevented plaintiff from procuring his exoneration, by voluntarily discharging the prisoner; that defendant held the prisoner merely as plaintiff's agent, and that by reason of his false return he was liable to plaintiff for all damages sustained; that plaintiff's failure to obtain an exoneretur is not available to defendant as a defense; that if defendant desired that plaintiff's damages should be reduced, he should have co-operated with plaintiff in procuring his exoneretur. Cozine v. Walter, Sheriff, etc. Opinion by Rapallo, J.

ASSIGNMENT OF CERTIFICATE-BONA FIDE HOLDEREVIDENCE.

This action was brought to restrain defendants from disposing of, and to recover possession of a certificate of indebtedness of the State of New York, for $10,000, issued by the new capitol commissioners under chapter 830, Laws of 1868. Issues were settled and directed to be tried by a jury. Upon the trial, it appeared that plaintiff was induced by false representations on the part of defendant Miller, who applied to him for a loan of $7,000, as to his responsibility, to deliver and assign said certificate to him. Plaintiff received for said certificate two notes amounting to $7,000 and Miller's check for $3,000, under an agreement that Miller was to get the certificate cashed in New York, and pay out of the proceeds $3,000. In case the certificate was not cashed in three weeks, it was to be returned, and the check and notes taken up. The certificate was not cashed in three weeks. Plaintiff upon the trial before the jury, introduced in evidence the certificate, with the assignment thereon to Miller, and also a similar assignment from Miller to the Met. Nat. Bank. At the close of the evidence the counsel for the bank moved for a dismissal of the complaint as to it, upon the ground among others, that it was prima facie a bona fide purchaser for value of the certificate from Miller, and so was entitled to hold it. This motion was granted, and plaintiff excepted. Held, error; that the complaint could not be dismissed as to one or all the defendants; that a verdict upon all the issues as to all the parties must be rendered, and the cause afterward heard by the court.

That plaintiff having by assignment conferred the apparent absolute ownership upon Miller, and the bank having purchased upon the faith of such apparent ownership, obtained a valid title as against plaintiff, and plaintiff is estopped from asserting a title in hostility thereto. Allen, J., dissenting. Bush v. Lathrop, 22 N. Y. 535, overruled.

A recital in an assignment from the apparent owner is not evidence, however, against the real owner that it was for value, and this is so, although the assignment is introduced in evidence by the latter. Moore v. Met. Nat. Bank, Impleaded, etc. Opinion by Grover, J.

CONSTITUTIONAL LAW.

This is an appeal by the relators from an order of the General Term, affirming an order of the Special Term which denies an application for a peremptory mandamus, directing the countersigning and payment of a draft drawn by the board of commissioners of the Troy city police, under and by virtue of chap. 520, Laws of 1870, entitled "An act to establish and maintain a

police force in the city of Troy." The comptroller refused to countersign it, claiming that the board was superseded by and under the provisions of the act "to establish the Rensselaer Police Districts and to provide for the government thereof," chap. 638, Laws of 1873. Held (Folger, J., dissenting), that the latter statute is unconstitutional and void, inasmuch as the main object of the act was the establishment of a police force under a new organization for the city of Troy, and the fragments of territory outside of the city limits were included, merely to give the territory the name and form of a police district as distinct from the ordinary civil divisions of the State, and because, if it was deemed necessary to extend the police jurisdiction over those fragments, they could be incorporated in and made part of the city, and there being no necessity, such an organization was unconstitutional; it was not a matter of discretion as there was no occasion for the exercise of legislative discretion. People v. Draper, 15 N. Y. 532, criticised and distinguished, and People v. Shepard, 36 id. 285, questioned.

The constitution has provided for and in terms recognizes every civil and political organization into which it was intended that the State should be divided; if any other division or organization is allowable it can only be when neither of those thus provided will serve the purpose, or when it cannot be accomplished by organizing the territory in view, under one of the forms of municipal government authorized by the constitution.

The purpose and object of section 10 of article 2 of the State constitution, was to secure to the several recognized civil and political divisions of the State the right of local self-government, and this right cannot be taken from them and the inhabitants disfranchised by any act of the legislature, or any or all of the departments of the State government combined.

This constitutional right cannot be evaded by a change in the name of an office, nor can any office be divided and the duties assigned to two or more officers under different names, and the appointment to the offices made in any manner, save as authorized by the constitution, and courts will scrutinize acts of the legislature, which take the appointment to an office from the locality, to see that the intent of the constitution is not frustrated by such a mere colorable change, and will hold the act void unless the change is real and substantial.

A thing within the intent of a constitutional enactment is for all purposes to be regarded as within the words and terms of the constitution, and a legislative enactment, evading the terms and frustrating the general and clearly expressed or necessarily implied purposes of the constitution, is as clearly void as if in express terms forbidden. People ex rel. Bolton v. Albertson, Comptroller, etc. Opinion by Allen, J.

Plaintiff in error was convicted at the Delaware General Sessions of violating section 13 of the excise law of 1857 (Laws 1857, ch. 628, p. 405), by selling liquors and wines without a license. In pronouncing sentence, the court deemed itself destitute of power to impose any punishment except that named in the 29th section of said act, and sentenced plaintiff in error to pay a fine of $100, and to be imprisoned in the county jail for ninety days. Held, error; that the judgment should be reversed and the case sent back to the Supreme Court, with directions to remit to the General Sessions, and