The People v. John Doc.

Secondly: When the attack upon him is so sudden, fierce and violent, that a retreat would not diminish, but increase his danger, he may instantly kill his adversary without retreating at all.

Thirdly: When from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life, or commit any felony upon his person, the killing of the assailant will be excusable homicide, although it should afterwards appear that no felony was intended.

By comparing this language, which expresses the well established and recognized doctrine on this subject, with that used by the Chief Justice in the case under consideration, it is very apparent that the prisoner had nothing to complain of in that respect.

But it is insisted that the last clause of the charge contains a statement not warranted by the evidence. Upon a careful examination of all that appears in the bill of exceptions, I cannot discover that it is not warranted.

As to the question of identity between the prisoner and the person who inflicted the mortal wounds upon Fanning, it is only necessary to remark, that so far as appears, all the witnesses who testified in relation to the infliction of the wounds, and the confession of the murder afterwards, identified the prisoner at the bar, and that no question of identity appears to have been made on the trial.

Finally, it was insisted on the argument, that inasmuch as the indictment was for murder generally, as at common law, and the jury found the prisoner guilty of murder in the second degree only, no judgment could be given upon the verdict.

That is precisely the form of indictment contemplated by our statute. R. S. ch. 153, p. 658. The statute does not undertake to define the crime of murder, but only to distinguish it into two degrees, for the purpose of graduating the punishment. This appears very evident from section three of the chapter referred to, which is as follows:

"The jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree; but if such person shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of the crime, and shall render judgment accordingly."

People v. The Detroit and Pontiac Rail Road.

If it were necessary to frame the indictment so as to charge murder of a particular degree, the section here quoted would be entirely nugatory.

Upon the whole, there does not appear to be any good ground for reversing the judgment upon the record, or granting a new trial upon the bill of exceptions.

Judgment affirmed.

THE PEOPLE V. THE DETROIT AND PONTIAC RAIL ROAD.

A rail road company incorporated before the late revision of the statutes, whose charter is silent as to taxation, is liable to pay the specific tax imposed by R. 8. eh. 21, sec. 5, p. 121.

CASE reserved from Wayne County Court.

The only question in the case, was, whether the rail road company, which was incorporated in 1834, and whose charter is silent as to taxation, was liable to pay the specific tax imposed on rail road, canal and turnpike companies, by R. S. ch. 21, sec. 5.

Lothrop, attorney general, for the plaintiff.
Douglass, for defendant.

By the court, MILES, J. The question submitted to the court in this case, is, whether the defendant is liable to pay the specific state tax imposed by ch. 21, R. S., p. 121. The power to tax the property of corporations as well as that of individuals, seems to be well established. This, however, was not accomplished without a struggle on the part of those whose interests have been thus seriously affected. The charter of the Providence Bank in the state of Rhode Island, was granted in 1791, and previous to the passage of an act of the legislature in 1822, imposing a tax upon bodies corporate within the state. The collection of this tax was resisted, upon the ground that the act was repugnant to the constitution of the United States, inasmuch as it impaired the obli

People v. The Detroit and Pontiac Rail Road.

gation of the contract created by the charter of incorporation. Before the case was argued, the doctrine had been settled, in the Dartmouth College case, that a contract entered into between a state and an individual, was as fully protected by the 10th section of the 1st article of the constitution, as a contract between two individuals: and it was not denied that a charter incorporating a bank was a contract, and the question was, whether that contract was impaired by taxing the bank, The discussion of this question necessarily involved the inquiry whether the power of taxation was inconsistent with the charter: and it was strongly insisted that it was, mainly for the reason that this power might be so exercised as to destroy the object for which the charter was given.

Chief Justice Marshall, in the opinion delivered by him deciding the case, uses this language: "The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic." "This is an original principle, which has its foundation in society itself—it is granted by all for the benefit of all-it resides in government as a part of itself, and need not be reserved when property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies."

In reply to the proposition of counsel, that a power which is in itself capable of being exerted to the total destruction of a grant, is inconsistent with the grant, and is, therefore, impliedly relinquished by the grantor, though the language of the grant contains no allusion to the subject, he says: "If this be an abstract truth, it may be supposed untversal-but it is not universal, and, therefore, its truth cannot be admitted in these broad terms in any case." He alludes to a grant for land made by the government, the object of which is, that the profits issuing from it shall enure to the benefit of the grantee, and yet the power of taxation may be carried so far as to absorb those profits, and then says: "We must look for the exemption in the language of the instrument, and if we do not find it there, it would be going very far to insert it by way of construction."

This case was decided at the January term, 1830, 4 Peters 514. Fifteen years before that time, the case of the Portland Bank, in Massachusetts, was decided by Chief Justice Parker. In the course of the opinion delivered, he makes this pertinent inquiry: Did the legislature,

People v. The Detroit and Pontiac Rail Road.

when it incorporated the plaintiffs, relinquish the right of laying an excise or duty upon the business which they should transact during the continuance of the corporation? The answer which he gives, is, "There is no express waiver or relinquishment, nor is there any strong implication of one." "The object of their charter is to enable them in a body to conduct their business as an individual, to make contracts, and to enforce them as such, avoiding the inconveniences of a partnership. This is all that is asked for by the company, and all that is given by the charter. It is a privilege to manage their business, and not an exemption from duty."

The right to impose a specific tax or excise, was made a point in judgment in that case, and was clearly and fully sustained under the provisions of the constitution of that state authorizing the legislature to impose and lay reasonable duties and excises upon any produce, goods, wares, merchandizes and commodities whatsoever. 12. Mass. 252.

In the case of Ontario Bank v. Bunnell, it was determined that the real and personal estate of a banking corporation was subject to taxation in a village where it was located, authorized by law to raise money by tax for certain purposes: that it was an inhabitant within the meaning of the act directing the tax to be assessed upon the freeholders and inhabitants of such village. 10 Wendell 186.

The power of exempting property from taxation seems to be equally well settled. The power of the state in making the grant in this case, or in any case, to impose upon the party accepting it such conditions, or to extend to it such privileges as may best comport with sound policy, within constitutional limits, seems to be conceded in the argument in the opinion in 4 Peters. In arguing whether the contract was impaired by taxing the bank, the court say, this question is to be answered by the charter itself, and that it contains no stipulation promising exemption from taxation.

The question, then, put to us, must be answered in the affirmative. Certified accordingly.

Bacon. The County of Wayne.

BACON V. THE COUNTY OF WAYNE.

The county is not liable to an attorney for defending a prisoner at the request of the court, where the prisoner is poor and unable to employ counsel.

CASE reserved from Wayne Circuit Court.

J. M. Howard, for Bacon.

Stewart, prosecuting attorney, for the county.

By the court, GREEN, J. A poor person was brought before a magistrate in the city of Detroit, charged with the crime of murder. The magistrate, having satisfied himself that the prisoner was unable to employ counsel to defend him, requested Mr. Bacon, an attorney and counsellor of this court, to undertake the prisoner's defence, which he did. The prisoner was indicted and tried for the offence in the circuit court for the county of Wayne, and Mr. Bacon acted as his counsel on the trial. For these services Mr. Bacon charged the county of Wayne fifty dollars, and presented his account therefor to the board of county auditors, who rejected the claim. From the decision of the board of auditors the claimant appealed to the circuit court for the county of Wayne, where the question was reserved for the opinion of this court. On the argument of the case here, it was conceded by the counsel for the appellant that this was not a strictly legal claim against the county, but it was insisted that it was so manifestly just and meritorious in its character, that the board of auditors ought to have allowed it: that the prisoner, being charged with one of the highest crimes known to the law, involving, if found guilty, the utmost punishment inflicted for any crime except treason, and being wholly unable to employ counsel to assist in his defence, must have been entirely undefended, and perhaps unjustly convicted and punished, had not counsel been provided for him, unless some one should have volunteered in his defence as a matter of charity, which it is claimed ought not to be expected of counsel: that under these circumstances, it is due to the administration of justice, and required by the plainest principles of humanity, that counsel be provided