Recom

mendations

lature.

"It yet remains true that a corporation which derives its powers from the State, should pay to the State a just percentage of its earnings as a return for the privileges it enjoys. This should be especially true for the franchises bestowed upon gas companies, street railroads and the like. The question of the municipal ownership of these franchises cannot be raised with propriety until the governments of all municipalities show greater wisdom and virtue than has been recently shown, for instance, in New York City; and the question of laying and assessing the tax for franchises of every kind throughout the State should in my opinion be determined by the State itself. I need not point out to you that in foreign communities a very large percentage of the taxes comes from corporations which use the public domain for pipes, tracks and the like." ...

Accordingly I recommend the enactment of a law which shall to the legis- tax all these franchises as realty, which shall provide for the assessment of the tax by the Board of State Tax Commissioners and which shall further provide that from the tax thus levied for the benefit of each locality there shall be deducted the tax now paid by the corporation in question to the locality. Furthermore, as the time for assessing the largest and wealthiest corporations, those of New York and Buffalo, has passed for this year, and as it will be preferable not to have the small country corporations taxed before the larger corporations of the cities are taxed, I suggest that the operation of the law be deferred until October first, of this year. THEODORE ROOSEVELT.

Statement

of the reasons for pardon.

177. An Exercise of the Pardoning Power

The way in which a governor may use his pardoning power to mitigate the rigors of the law is illustrated by the following paper issued by Mr. Roosevelt as governor of New York in 1900.

July 27, 1900. Edward Wise. Sentenced March 31, 1899, to be executed; county, New York; crime, murder, first degree; prison, Sing Sing. Commuted to imprisonment for life. Wise was convicted of murder in the first degree for causing the death of

Charles F. Beasley while attempting to rob him on one of the public streets of the city of New York. The evidence given upon the trial together with additional evidence adduced upon the application for clemency shows that the crime was committed by Wise in company with a confederate named Sweeney. There was no thought of killing Beasley or of doing him bodily harm, but, while they were engaged in the attempt to rob him, Sweeney struck him a blow which felled him to the ground, and his head coming violently against the pavement his skull was fractured, resulting in his death. Wise was taken into custody at once, but Sweeney escaped. Legally Wise was no doubt as fully responsible for Sweeney's act in striking Beasley and for the consequences of it as if he had himself delivered the blow, although in fact he in no way consented to it, and had not contemplated anything of the kind. And although the killing of Beasley was altogether unintentional and occurring as it did quite in the nature of an accident, still those by whose act it was brought about were, under the statute, guilty of murder in the first degree, being at the time engaged in the commission of a felony. But in view of all the circumstances, death, the only penalty prescribed by law for the offense, seems too stern and severe, and some mitigation is due by way of executive clemency. Imprisonment for life will be fully commensurate with Wise's guilt and sufficient for all the demands of justice.

178. Martial Law

Whenever the governor of a state, in the exercise of the power bestowed upon him by the constitution, establishes martial law, he usually issues a proclamation in the following tenor:

December 4, 1903.

Whereas, said destruction of property with attendant loss of life by mob violence, as above set forth, is but a repetition of outrages covering a long period of time just past in said county, during which time citizens have lost their lives without the offenders being apprehended or punished therefor; and

Reasons for martial law.

declaring

Civil and

criminal law subject to military necessity.

Martial law

extends to

property and persons.

Whereas the civil authorities have shown themselves either unable to deal with these criminals and bring them to punishment or else are unwilling to perform their duty, by reason of threats and intimidations, or through fear or subserviency to such body of lawless and armed men, so that a state of lawlessness exists in said county of Teller, the laws are set at defiance, and the citizens are unable to enjoy the rights guaranteed them by the constitution and laws of this State, and by reason of these conditions it appears that life and property are unsafe in said county; and

Whereas, I have reason to believe that similar outrages may occur at any time, and believing the civil authorities of said county of Teller are utterly unable, unwilling and are making no practical attempt to preserve order and to protect life and property:

Now, therefore, I, James H. Peabody, governor of the State of Colorado, by virtue of the authority in me vested, do hereby proclaim and declare the said county of Teller, in the State of Colorado, to be in a state of insurrection and rebellion.

The implications of martial law are thus indicated by the instructions furnished to the troops by General Sherman Bell acting under the above proclamation:

The county of Teller, in consequence of the occupation by the militia, is subject to the supreme military authority and control when necessity requires and occasion demands, and it becomes necessary to suspend, in part or in its entirety, by the occupying military authority, the criminal and civil law and the domestic administration and government in the occupied place or territory, and to substitute military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution or dictation. The militia. may proclaim that the administration of all civil and penal law shall continue either wholly or in part as in times of peace, unless otherwise ordered by the military authorities.

As martial law is executed by military force it is incumbent upon those who administer it to be strictly guided by the principles of

justice, honor, and humanity - virtues adorning a soldier even more than other men. To preserve law and order is paramount to all other considerations. All civil and penal law shall continue to take its usual course, unless interrupted or entirely stopped by order of the occupying military power. Martial law extends to both property and persons. Whenever possible martial law is carried out in cases of individual offenders by military court, under military jurisdiction, which is twofold.

military

necessity.

Military offenses must be tried under and punished in accordance Limits of with the rules and articles of war governing the armies of the United States, and incidentally the National Guard of the United States and Territories and the District of Columbia, under the Dick bill. Military necessity admits of all direct destruction of life and limb of armed enemies, and other persons whose destruction is incidentally unavoidable. Military necessity does not admit of cruelty. It does not admit of the use of poison in any way. It admits of deception, but disclaims acts of perfidy. It is not carried on by arms alone. . . .

Citizens subject to military

Every able-bodied male citizen of Colorado, and those who have declared their intention to become citizens of the United States, residing therein, between the ages of 18 and 45 years, except per- duty. sons exempt by law, are subject to military duty and are likewise subject to military enrollment and to pay military poll tax. The adjutant-general is empowered with the enforcement and collection of this tax of $1 from each person, and the failure or refusal to pay same is punishable by both fine and otherwise.

must be

Every law-abiding citizen in the county of Teller and State of The law Colorado, if he, she, or they are engaged in any legitimate obeyed. business, no matter what their vocation in life, regardless of their union or nonunion affiliation and creed, shall first obey the laws of the land, those of Colorado and the United States of America included; and no one shall be interfered with nor in any wise molested at any time during the day or night, under penalty of military law, rule, discipline and protection. . . .

SHERMAN M. BELL.

Corporations entitled to equal protection of the law.

An unreasonable classification.

179. Legal, Advice to the Governor

It is the duty of a governor to veto a measure which he believes to be palpably unconstitutional, and he may secure expert advice on any bill by submitting it to the attorney-general. This report from the attorney-general of Iowa to the governor illustrates the practice:

SIR - Complying with your request, I herewith submit a brief as to the constitutionality of House file No. 78 relating to the place where action can be commenced upon promissory notes made to insurance companies.

At the outset of this question two fundamental propositions are presented:

First-That corporations are persons within the provisions of the fourteenth amendment of the Constitution of the United States, and that the rights and securities guaranteed to persons by that instrument cannot be disregarded in respect to these artificial entities, any more than they can be in respect to the individuals who are the equitable owners of the property belonging to such corporations. A state has no more power to deny corporations equal protection of the law than it has to deny such protection to individual citizens. . .

Second-All classification for legislative purposes must have some reasonable basis upon which to stand. It must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without such basis. . . . No valid reason can be given why a promissory note, executed and delivered in consideration of a contract of insurance, should not stand upon the same footing, so far as the right of the holder to transfer the same is concerned, as a note given for any commodity or for any other valid consideration. The act of the legislature attempts to create a distinction and classification between one class of corporations and other persons within the state which does not exist naturally or furnish a reasonable basis for separate laws and regu