ought not to be created for the benefit of private corporations, and that such a system of making improvements is impolitic, dangerous, and contrary to the principles of a sound public morality, we can find nothing in the Constitution on which we can rest our consciences in saying that it is forbidden by ,that instrument." Moers v. City of Reading, 21 Pa. 188. "Nothing but a clear violation of the Constitution-a clear usurpation of power prohibited-will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void." Pennsylvania Railroad Company v. Riblet, G6 Pa. 164, 5 Am. Rep. 360. "To justify a court in pronouncing an act of the Legislature unconstitutional and void, either in whole or in part, it must be able to vouch some exception or prohibition clearly expressed or necessarily implied. To doubt is to be resolved in favor of the constitutionality of the act. This rule of construction is so well settled by authority that it is entirely unnecessary to cite the cases." Commonwealth ex rel. Wolfe v. Butler, 99 Pa. 535. "In creating a legislative department, and conferring upon it the legislative power, the people must be understood to have conferred the full and complete authority as it vests in and may be exercised by the sovereign power of any state, subject only to such restrictions as they have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specially defined legislative powers, but is intrusted with the general authority to make laws at discretion." Powell v. Commonwealth, 114 Pa. 265, 7 Atl. 913, 60 Am. Rep. 350. "But whatever the people have not by their Constitution restrained themselves from doing, they, through their representatives in the Legislature, may do. This latter body represents their will just as completely as a constitutional convention in all matters left open by the written Constitution. Certain grants of power, very specifically set forth, were made by the states to the United States, and these cannot be revoked or disregarded by state legislation. Then come the specific restraints imposed by our own Constitution upon our own Legislature. These must be respected. But in that wide domain not included in either of these boundaries the right of the people, through the Legislature, to enact such laws as they choose, is absolute. Of the use the people may make of this unrestrained power, it is not the business of the courts to inquire. We peruse the expression of their will in the statute; then examine the Constitution, and ascertain if this instrument says: "Thou shalt not;' and, if we find no inhibition, then the statute is the law, simply because it is the will of the people, and not because it is wise or unwise." Commonwealth ex rel. v. Reeder, 171 Pa. 505, 33 Atl. 67, 33 L. R. A. 141. "Prima

facie, the legislative authority is absolute, except where expressly limited. This is the uniform principle of all political and legal views, and of all constructions recognized by constitutional law." Commonwealth v. Moir, 199 Pa. 534, 49 Atl. 351, 53 L. R. A. 837, 85 Am. St. Rep. 801. "The rule of law upon this subject appears to be that, except where the Constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice, or not, in any particular case. The courts are not the guardians of the rights of the people of the state, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise and oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil, but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking power.

** If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it should be found that these principles are placed beyond legislative encroachment by the Con stitution." Cooley on Constitutional Limita tions, c. 7, §§ 4, 5 (6th Ed., 1890) p. 201.

Scanning the list of expressly forbidder. legislation, as found in section 7, art. 3, of the Constitution, there is no restriction upon what was done by the Legislature in its action assailed in this proceeding; nor is there any other line in that instrument by which the action is impliedly prohibited, for nowhere is such legislation, or anything relating to it, mentioned. The resolution may be regarded by some as unwise and improper, and, if in any legislative district there were those so minded at the time it was adopted, and they happened to be in the majority, they had the opportunity to exhibit their disapproval if any Senator or member who voted for it came up for re-election. It is doubtful, however, if any legislative career would have been cut short for support of the measFrom time out of mind, legislative bodies have, at the public expense, and with hearty popular approval, paid fitting tribute to the deserving dead, who, in peace or war, had served the state or nation; and public money so expended is well spent for the public, for it strengthens and elevates patriotism, and helps to make better men and women of the young who witness the homage so paid. But this digression need proceed no further.

ure.

We do not understand that if the Legisla

ture had named a separate commission to represent the state at the exercises, and had provided for the payment of its expenses, the power to do so would be questioned; but, because the two bodies constituted themselves such representatives, the power is questioned, for the reason that, as the claim of the plaintiff is for food and drink furnished them, they will, if it is allowed, receive compensation in violation of section 8, art. 2, of the Constitution, which provides that "the members of the General Assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise." Proper entertainment of the Legislature was not merely incidental to its attendance at the dedication, but was necessary, and therefore formed part of the state's expenses in making suitable recognition of the ceremony. The concurrent resolution contemplated the payment of nothing but such expenses, and their payment to the man who furnished what was so necessary cannot be regarded as compensation or pay to the members of the Legislature for their services as legislators, in any sense, whether such strained meaning for "compensation" be searched for in dictionary or encyclopedia of law, or the word is to be interpreted as popularly understood.

It is conceded by the learned and able counsel for appellee that the payment of the expenses may not be technically compensation, and yet, by the process of reasoning through which they would have us declare it to be compensation, within the constitutional prohibition, the very ink furnished to Senators and members, and the pens dipped into it in answering the daily inquiries of constituents, would have to be regarded as constitutionally unlawful compensation to them, if paid for by the state.

The payment of expenses by the state in having itself fittingly represented, when it ought to be represented on great public occasions, involves nothing but the maintenance of its own dignity; and who shall represent it, or how it shall be represented, is for the Legislature alone. If, in their judgment, its members, representing every portion of the state, ought to do so, who can better represent the commonwealth; and, when they do so, what legislative service are they rendering for which they are receiving forbidden compensation because the state pays the expenses necessarily incident to its representation? The state is often represented by commissions created by the Legislature, composed in part of members of the Senate and House; but no one has ever thought of asking a court to say that those members of such a commission who happen to be Senators or Representatives receive prohibited compensation because their hotel bills are paid, with those of the other members of the commission, out of the appropriation for the payment of its legitimate expenses.

That members of a Legislature may be only part of such commission, instead of, as one body, being the state's sole representative, can make no difference in principle, if the position taken by the appellee is to be sustained. It has not been very elaborately pressed by the learned counsel representing the commonwealth, and we need not discuss it further.

In disposing of the questions raised on this appeal, we have nothing to do with the appellant's claim as presented in the court below, and it would therefore be improper for us to say anything about it. If, after it shall have been passed upon by a jury, the plaintiff or defendant should feel aggrieved by the finding, and the court below should not correct any wrong that may be done, the alleged grievance may be the subject of another appeal. All that we now decide is that, by the act authorizing the appellant to sue the commonwealth, he is to recover such sum as, under the rules of pleading and evidence, may be justly due him. Under these rules the case must be tried, and such sum awarded to him as, under proper instructions from the court and under all the proofs, the jury may find to be just.

The edibles and drink were furnished as a lunch and dinner; both meals being served between the hours of 11:30 a. m. and 6 p. m. on the boat which carried the legislative excursionists on the Hudson river from Jersey City to a point opposite the Grant monument, a distance of 10 miles or less, and back. There were 425 persons, of which number 253 were members of the Legislature. Relative to the meals and liquors furnished, Senator Krause, chairman of the joint committee to make arrangements for the excursion, testifies as follows: "Q. Tell us what

Legislature, in passing the resolution, intended to authorize the committee to make a contract for it. Such interpretation of the resolution opens the door to raids upon the state treasury by committees of the Legislature, by which the taxpayers of the state can be made to pay claims which, as in this instance, neither the General Assembly of the commonwealth, nor any other self-respecting legislative body, would for one instant think of approving. Had the plaintiff's claim, the character of which is shown by the items thereof and the testimony, been presented to the Senate and House in open session at the time the joint resolution was passed, we are satisfied that those bodies would not have authorized the committee to contract for or pay it. It would have shocked the legislative conscience, as well as that of the people of the commonwealth. The testimony leaves no doubt as to the purpose in view when the contract was made, and what was expected to be, and what was, furnished in pursuance of it. About $1,700 worth of food and $3,000 worth of wines and liquors were consumed on the steamer by the 425 guests of the state in 61⁄2 hours. This tells the brief but comprehensive story of the manner in which the money claimed here was applied (In the language of the preamble to the joint resolution) "in commemoration of the life and deeds of a hero whose memory we revere." Further comment upon the subject is unnecessary. To hold that authority was conferred upon the legislative committee by the concurrent resolution to contract for such a claim is violative of all sound rules of interpretation, and is not supported by reason or authority.

We would, moreover, take a step further than the trial court, and hold that the Legislature was prohibited by the Constitution from authorizing the committee to make the contract under which this claim is made against the state. Section 8 of article 2 of that instrument provides: "The members of the General Assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other

compensation whatever, whether for services upon committee or otherwise. No member of either house shall, during the term for which he may have been elected, receive any increase of salary, or mileage, under any law passed during such term." At the time of the excursion to New York, the members of the Legislature were receiving as compensation a salary and mileage fixed by law, and hence, under this constitutional provision, they could receive "no other compensation whatever." Equally explicit and mandatory is the provision that no member shall "receive any increase for salary or mileage under any law passed during the term" for which he is elected. Mr. Buckalew, a recognized authority upon the interpretation of the Constitution, says (Const. 40): "Compensation to members is properly for time spent, for services performed, and for personal expenses incurred for the public; but the forms of the compensation to be made to them for outlay, time, and labor are the two expressly fixed by the Constitution, namely, salary and mileage, which are declared to exclude all others." A member of the Legislature is therefore confined to his salary and mileage as compensation for his services, in neither of which is the claim here presented included. The joint resolution shows that the members attended the dedication as a legis lative body, and the claim for the edibles, liquors, cigars, etc., furnished by the plaintiff, is "other compensation" to the members of the Legislature than salary and mileage, and therefore is clearly within the constitutional inhibition. If the sum claimed by the plaintiff had been paid by the state to the members to defray their expenses in attending the dedication, it would clearly have been additional to the compensation allowed them by law. The practical effect of a payment by the state direct to the plaintiff is the same as a payment of the amount to the members, and by them to the plaintiff. In either case, they receive an additional compensation from the state for their services as meшbers of the legislative body to which they belong.

(72 N. J. L. 46)

STATE v. CANNON. (Supreme Court of New Jersey. March 22,

1905.)

CARNAL ABUSE OF CHILD-INDICTMENT-CHALLENGES EVIDENCE.

1. An indictment for the statutory offense of carnal abuse of a woman child under the age of 16 years is not vitiated by adding to the words "did unlawfully and carnally abuse" the words "and then and there did unlawfully have carnal knowledge of the body" of the said child. They may be rejected as surplusage. Carnal abuse of a woman child under 16 years of age is a statutory offense entitling the defendant to no more than 10 peremptory challenges.

[Ed. Note. For cases in point, see vol. 81, Cent. Dig. Jury, § 611.]

2. In the trial of offenses involving illicit intercourse between the sexes, evidence as to the conduct of the defendant towards the prosecutrix on other occasions is competent.

[Ed. Note. For cases in point, see vol. 42, Cent. Dig. Rape, § 63.]

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Hudson County.

Charles K. Cannon was convicted under Crimes Act 1898, § 115 (P. L. p. 826), and brings error. Affirmed.

Argued November term, 1904, before GUMMERE, C. J., and GARRISON, GARRETSON, and REED, JJ.

E. W. Arrowsmith, for plaintiff in error. William H. Speer, for the State.

GARRETSON, J. The defendant was convicted upon an indictment found under section 115 of the crimes act of 1898 (P. L. p. 826). This section provides: "Any person who shall have carnal knowledge of a woman forcibly, against her will, or who, being of the age of sixteen years or over shall unlawfully and carnally abuse a woman under the age of sixteen years with or without her consent, shall be guilty of a high misdemeanor." This statute defines two crimes-one, rape as at common law; the other, carnal abuse of a child under the age of 16 years. The indictment charges that the defendant, "being above the age of sixteen years," assaulted the prosecutrix, "and her, the said C., did then and there unlawfully and carnally abuse, and then and there did unlawfully have carnal knowledge of the body of the said C., the said C. being then and there a woman child under the age of sixteen years." It will be noticed that the in lictment contains exactly the words set forth in the latter part of the section. Carnal knowledge is carnal abuse, as used in the statute. The words "and unlawfully have carnal knowledge of the body of the said C." were superfluous, and may be rejected as surplusage. They do not make a charge of a different crime from the second crime set out in the section. Carnal abuse, in this statute, is not one of the crimes entitling the defendant to 20 peremptory challenges. He is only entitled to 10, and the 60 A.-12

court properly disallowed all above 10. This was a statutory misdemeanor. Rape was not charged. The indictment did not contain the essential words of an indictment, for rape, viz., "forcibly, against her will." Evans v. State, 52 N. J. Law, 261, 19 Atl. 254..

The defendant urges that testimony of other acts or offenses committed by the defendant, entirely separate and distinct from the of fense charged, were improperly admitted. This testimony was as to the conduct of the defendant toward the prosecutrix on other occasions of like character with that for which he was tried. Such evidence is competent in cases of offenses involving illicit intercourse between the sexes. State v. Snover, 65 N. J. Law, 289, 47 Atl. 583. We find no error in the admission or rejection of evidence.

We have not considered the charge of the trial judge for the reason that there is no exception sealed to any part of it; no specification of any part of it as a cause of reversal, if the case is regarded as being brought up under the statute; and no assignment of error as to any part of it. The judgment is affirmed.

1. If, at the trial of a person for murder, the undisputed testimony clearly establishes the fact that the defendant is guilty of that crime, it is not error for the court to instruct the jury that the questions of self-defense and manslaughter are not open for consideration.

2. If, at the trial of a person for murder, the counsel of the defendant, in opening the defense, states to the jury that the defendant, when arraigned in open court, made confession of the commission of the crime, it is not error for the court to refrain from contradicting the statement when such a contradiction is not requested.

3. A plea of not guilty entered on an indictment for murder is not, in this state, inconsistent with a statement that the defendant upon arraignment confessed the crime.

4. The exercise of judicial discretion at a criminal trial is not subject to review on error, except in cases where the defendant has (in the words of our statute) "suffered manifest wrong or injury in the denial of any matter by the court which was a matter of discretion"; and in this statute denial implies request.

5. It is not erroneous for the judge presiding at a criminal trial to make to the jury such comments and suggestions respecting the evidence as judicial discretion may dictate. (Syllabus by the Court.)

Error to Court of Quarter Sessions, Bergen County.

Anna Valentina was convicted of murder, Affirmed. and brings error.

Ernest Koester, Pros. of Pleas, for the State. James M. Trimble and Nathan Kussy, for defendant.