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The Supreme Court of Michigan. support by taxation; it has protected the wills of even cranky testators; it has, after a long struggle, held municipal corporations liable for municipal injuries; it has made public records public; it has gone so far in its scrutiny of statutes as to invert the usual rule that nothing less than an explicit con flict with the Constitution would warrant the decision that an act was unconstitutional, and it has repeatedly nullified enactments because they were out of harmony with the spirit of the funda mental law. This is a tremendous power, but noone can say that there are not the larg est opportunitiesfor its beneficial use. Such an opportunity arose in 1870, when the court wiped out theact that authorized town ships to pledge their credit and tax them selves in aid of railroad enterprises. Their de cision 1 was in unmis takable conflict with the rulings in eighteen States out of twenty, and it has been ex



pressly disapproved by the Supreme Court of the United States, but it has remained for twenty years the firmly settled law of Mich igan. It cannot be denied, on the other hand, that the spirit of the Constitution is apt at times to be but a shadowy guide, and that it will not always appear alike to all judges. When, in 1882, the State had had a tax-law drafted by a commission, and had called a special session of the Legislature to consider it, the court were equally divided upon its constitutionality, and so the judgment below was left undisturbed. This judgment 1 People v. Salem, 20 Mich. 452.

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was that the law was valid; but presently another circuit judge declared it invalid, and the Supreme Court were again equally di vided as before; the result was that the law was valid in one circuit and void in another. This was a scandal in jurisprudence; and in commenting on it Judge Cooley incidentally said it seemed to him that on constitutional questions the court was drifting to the po sition that those stat utes were constitu tional which suited them, and those were void which did not.1 The practical nullifi cation of this taxlaw, however, seemed to meet general ap proval; it was a suf ficiently symmetrical piece of codification, but bade fair to be, in its operation, a very ruthless measure. It may be enter taining, if not useful, to record here an episode or two that bear on the question of judicial head-notes. In 188 1 the State printer, who con ducted a sprightly pa CAHILL. per at the capital, con ceived the mistaken notion that prompt and very full reports of the decisions of the court would make his paper interesting; and by way of increasing the benefit he proposed to confer upon his readers, he had an act passed requiring the judges to write their own head-notes, intend ing to print them promptly before they could appear anywhere else. The only notice the court took of this statute was in the sending of a polite note from Chief-Justice Marston to Governor Jerome, explaining that as it was inconsistent with the Constitution they could 1 State Tax-law Cases, 54 Mich. 447.