In Indiana, for instance, there is a wise constitutional provision that "No act shall take effect until the same shall have been published and circulated in the several counties in this State by authority, except in case of emergency, which emergency shall be declared in the preamble or in the body of the law." Un-right as no sudden change in public sentiment, no questionably the framers of this article intended by their exception to provide for cases of instant and special necessity; but of the two hundred laws of the last session, one hundred and fifty-five contained a declaration that, "whereas an emergency exists for the immediate taking effect of this act, it shall therefore be in force from and after its passage." It is unnecessary to say that most of these were in fact measures of ordinary legislation, as to which there was really no reason for anticipating the time when they would naturally become operative.

terial in this case, so far as section 17 of the Bill of Rights is concerned. In no event can it be said that there is a distinction between citizens and aliens in the present case, for it does not appear that the plaintiff is an alien within the proper meaning of that term. It is alleged by plaintiff, aud conceded on the other side, that she is a citizen of the United States. The wife of a citizen of Kausas, who resides in another State, cannot be regarded as an "alien." Webster defines the word as "one born out of the jurisdiction of the United States, and not naturalized," and Bouvier gives a like definition. Anderson's Dictionary of Law defines an "alien" to be "one born in a strange country, under obedience to a strange prince, or out of the ligeance of the king." The amendment to this constitutional provision, which was adopted in 1888, shows that that is the sense in which it is used in our Constitution. Section 17 of the Bill of Rights as amended reads as follows: "No distinction shall ever be made between citizens of the State of Kansas and the citizens of other States and Territories of the United States, in reference to the purchase, enjoyment or descent of property. The rights of aliens in reference to the purchase, enjoyment or descent of property may be regulated by law." Before this amendment was adopted, citizens and aliens stood upon an equality with reference to the purchase, enjoyment and descent of real property, but by the amendment the people ordained that the restriction upon the Legislature should be removed, and authorized such discriminating regulations against aliens in this respect as might be deemed wise. The use of the term "alien" in the amendment leaves no doubt of the sense in which the word is used, and furnishes an argument that it was used in the same sense in the or

that the term "citizen," as used in the original provision, refers to citizens of the State of Kansas. Coun sel, who filed a brief by the permission of the court as amicus curia, contend that the term includes all citizens of the United States, but we are not inclined to agree with that view. We conclude then that section 17 of the Bill of Rights had no application to this case.

JOHNSTON, J. Martha A. Buffington brought two actions in the District Court of Kingman county, one against William S. Grosvenor and the other against John G. Sears, to recover from each one-half of certain real property situate in Kingman county. She was unsuccessful in each case, and is here complaining of the judgments that were given. The material facts of the cases are alike, and, as they present but one question, they may be disposed of in a single opinion. Martha A. Buffington became the wife of Pierce Buffington in 1865, and continued in that relation until the time of his death in 1884. He removed to Kansas five or six years before his death, and shortly after coming here he acquired the absolute legal title to the property in controversy. Afterward he conveyed the property by warranty deeds to certain grantees, and the defendants, by subsequent conveyances, have acquired all the title obtained by such grantees. Martha A. Buffington did not join her husband in conveying the property, and has never executed a conveyance of the same to any one, but she was never a resident or citizen of Kansas, and was never in the State prior to the death of her husband. She now claims to be en-iginal provision. We agree with counsel for plaintiff titled to one-half interest in the real estate of her husband, of which she had made no conveyance; but the trial court held, under the proviso of section 8 of the act concerning descents and distributions, that as she had not been a resident of Kansas, she never had any interest in the land conveyed, and her signature or conveyance was unnecessary to a complete transfer of the land by her husband. The section referred to reads as follows: "One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the Probate Court, be set apart by the executor as her property, in fee-simple, upon the death of the husband, if she survives him; provided, that the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife, at the time of the conveyance, is not or never has been a resident of this State. Continuous cohabitation as husband and wife is presumptive evidence of marriage for the purpose of giving the right aforesaid." Gen. St. 1889, par. 2599. The plaintiff's contention is that the proviso of the section violates both the State and Federal Constitutions, in that it discriminates against the citizens of other States and aliens. tended that the proviso falls within the inhibition of section 17 of the Bill of Rights, which at the date of the conveyance of the land in controversy by Pierce Buf"No distinction shall ever fington read as follows: be made between citizens and aliens in reference to the purchase, enjoyment or descent of property." Does the proviso mentioned make "a distinction between citizens and aliens in reference to the purchase, enjoy ment or descent of property?" We are inclined to think that it is a regulation of the manner of transferring property within the State, instead of a restriction upon its descent. However, that question is imma

It is first con

It is next contended that the proviso is repugnant to that provision of the Federal Constitution which ordains that "the citizens of each State shall be entitled to all the privileges and immunities of the several States," and also violative of a like limitation in the fourteenth amendment. We think the proviso is not in conflict with either of these provisions. It makes no discrimination against the citizens of other States in respect to any of the privileges or immuni ties of general citizenship. The proviso, in connection with other statutes, furnishes a rule regulating the manner of the transfer and transmission of real property. Where a person owus the absolute title to laud in Kansas, and his wife is a resident of the State, she must join in the conveyance; but when she is not a resident of Kansas, and therefore not subject to its laws, her signature and conveyance are unnecessary, and the husband alone may convey a good title. It is competent for the Legislature of each State to declare the mode and manner by which real property situate within the State may be transferred by the husband, or by the husband and wife, or by a judgment and process of court, so as to divest the husband, or husband and wife, of all estate or interest therein, and also to provide for the distribution of and the right of succession to the estates of deceased persons. "The power of the State to regulate the tenure of real property within her limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted. It is an established principle of law, every where recognized, arising

from the necessity of the case, that the disposition of immovable property, whether by deed, descent or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated." U. S. v. Fox, 94 U. S. 315.

authorities many rights and privileges may be granted by a State, depending to some extent upon the residence of those to whom they are granted, without infringing upon this provision of the Constitution. The privilege of voting, of holding office or of acting as an administrator of estates, may be withheld until after persons have resided within the State a reasonable period of time, without violating the Constitution, and it is not violated by allowing an attachment against the property of a non-resident debtor without an undertaking, although such process cannot be obtained against a resident without an undertaking. Head v. Daniels, 38 Kans. 1; Cooley Coust. Lim. (6th ed.) 490. These and many other distinctions do not fall within the privileges and immunities of general citizenship. In treating upon this question Judge Cooley says: "Although the precise meaning of privileges' and 'immunities' is not very clearly settled as yet, it appears to be conceded that the Constitution secures in each State, to the citizens of all the other States, the right to remove to and carry on business therein; the right, by the usual modes, to acquire and hold property, and to protect and defend the same in the law; the right to the usual remedies for the collection of debts, and the enforcement of other personal rights, and the right to be exempt in property and person from taxes or burdens which the property or persons of citizens of the same State are not subject to. To this extent at least discriminations could not be made by State laws against them. But it is unquestionable that many other rights and privileges may be made, as they usually are, to depend upon actual residence, such as the right to vote, to have the benefit of exemption laws, to take fish in the waters of the State and the like." Cooley Const. Lim. (6th ed.) 490, also note on page 25. There are several adjudicated cases in other States sustaining a provision of statute substantially similar to the proviso in question. In Pratt v. Tefft, 14 Mich. 191, it was decided that a woman residing out of the State at the time of her husband's death was not entitled to lands lying within the State, owned by him, but which had been conveyed without her joining in the deed. Although the estate of dower has been abolished in Kansas, the contingent interest of the wife in the real property of the husband is similar to dower in its inchoate stage; at least it is substantially similar, so far as the validity of such a provision as we are considering is concerned. In Ligare v. Semple, 32 Mich. 438, it was again decided that a wife who is a non-resident of the State, at the time the husband makes an absolute conveyance of lands divesting himself entirely of his seisin and estate, has no right of dower, under the statutes of this State, in lands so conveyed." The Supreme Court of Nebraska held that, "where a husband conveys lands

It is urged by the plaintiff that the wife is an heir, and as such is entitled to inherit one-half of her deceased husband's property, but that the proviso discriminates against widows who reside outside of the State, and deprives them of the right which is accorded to a resident widow. The wife, strictly speaking, is not an heir of the husband, although she is generally spoken of as such; but still, if she is regarded as an heir, the non-resident widow is not deprived of any "privilege or immunity." Under our statute, the property of the husband belongs exclusively to him, as the wife's property is exclusively her own. Neither has any vested interest or control over the property of the other by virtue of the marriage relation. The wife has no estate in the land of the husband. It is a mere possibility, depending upon the death of the husband, or whether he has divested himself of the title prior to his death. If he survives her, no interest is taken by nor transmitted to her heirs. If she survives him, but before his death he conveys the land, or it has been sold on execution or other judicial sale, nothing remains for her to take, and she has been deprived of no right. If there was an attempt to convey by the husband alone when his wife was a resident, the title would remain in her, because the manner of conveying land prescribed by statute had not been pursued; and if there was no judicial sale of the land, and it was not necessary for the payment of debts, a one-half interest would descend to her. In such a case, if she was a non-resident of the State, the conveyance by the husband alone would, under the rules prescribed for conveying, be sufficient to divest the title, and hence there would be nothing for her to inherit. It therefore appears that, if the conveyance is made in the manner prescribed by statute, there is nothing for either the resident or non-resident widow to inherit. There is really no discrimination between the resident and the non-resident widow, for each takes one-half of all the real property which her husband owned at the time of his death. When the husband's land has been conveyed in accordance with law during his life there is no descent to either, for there is nothing to descend. For reasons that were deemed sufficient, the Legislature made the signature and conveyance of the nonresident wife unnecessary. The fact that the wife did not accompany her husband to Kansas, or had abandoned him and gone to another State, and may or may not have obtained a divorce elsewhere, thus leaving the status of the parties in doubt, and making it difficult to obtain a perfect transfer of land in many cases, may have been deemed sufficient reason for prescrib-in this State while his wife is a non-resident thereof,

ing this rule of conveyance. The statute was enacted shortly after the admission of the State, and when it was rapidly increasing in population through immigration from many of the eastern States, and also for eign countries, many coming without their wives and families; and possibly the rule was adopted to avoid inconvenience and deception in the transfer of real property. The "immunities" and "privileges" referred to in the Federal Constitution would not, in any event, include the claim made by the plaintiff. Those terms "mean that all citizens of the United States shall have the right to acquire property and hold it, and this property shall be protected and secured by the laws of the State in the same manner as the property of the citizens of the State is protected; that this property shall not be subject to any burdens or taxes not imposed on the property of citizens of the State." 3 Am. & Eng. Ency. Law, 253. See also the cases there cited and Corfield v. Coryell, 4 Wash. C. C. 380; McCready v. Virginia, 94 U. S. 391. According to these

she has no dower interest in the land thus conveyed."
Atkins v. Atkins, 18 Neb. 474. In Bennett v. Harms,
51 Wis. 251, a like provision of the statute was under
consideration, and the point was directly made that it
conflicted with the Constitution of the United States
by discriminating against non-resident citizens, but
the validity of the statute is sustained in an elaborate
opinion. A like question has been decided by the Su-
preme Court of the United States under a law of Louisi-
ana which discriminated in favor of women who con-
tracted marriage within the State, or who contracted
marriage out of the State and afterward went there to
live, and it was claimed to be in conflict with the pro-
vision of the Federal Constitution that
of each State shall be entitled to all the privileges and
immunities of citizens in the several States;" but it
was ruled, Judge Curtis delivering the opinion, that
such discrimination had no connection with that
clause of the Constitution. Connor v. Elliott, 18 How.
591. Following these decisions, we conclude that the

the citizens

statute is not repugnant to the Federal Constitution, and, if we are in error in this regard, the parties are entitled to have the decision reviewed in the Supreme Court of the United States.

All

We find no error in the record, and therefore the judgment of the District Court will be affirmed. the justices concurring.

ABSTRACTS OF VARIOUS RECENT DE-
CISIONS.

CONTRACT-TO INDORSE NOTES-LEX LOCI.-
.-Where,
in an action-by the payee against an indorser of cer-
tain notes, it appears that the indorsement was made
pursuant to a contract entered into in another State,
the lex loci contractus must govern, and it is error to
exclude evidence of such contract, when the indorse-
meut itself is not absolute under the laws of the State
where it was made. It is apparent that if the lex fori
is to govern, the respondent cannot avail himself of
the oral agreement entered into between the plaintiff
and himself. Adams v. Wilson, 12 Metc. (Mass.) 138;
Wright v. Morse, 9 Gray, 337. We do not think how-
ever that it should govern. It is clear that in all that
relates to the contract itself, to its nature and validity
and interpretation, the law of the place where it is
made governs. Bank v. Wood, 142 Mass. 563; Milliken
v. Pratt, 125 id. 374; Carnegie v. Morrison, 2 Metc.
(Mass.) 381; Nichols v. Mase, 94 N. Y. 160; Buzzell v.
Cummings, 61 Vt. 213; Forepaugh v. Railroad Co., 128
Penn. St. 218; Liverpool & G. W. Steam Co. v. Phenix
Ins. Co., 129 U. S. 453; Fonseca v. Steamship Co., 153
Mass.
And the law of the place where the con-
tract is made is, without any express assent or agree-
ment of the parties, incorporated into and forms a
part of the contract. Their contract is presumed to be
made with reference to the law of the place where it is
entered into, unless it appears that it was entered into
with reference to the law of some other State or
country.
Bank v. Hume, 128 U. S. 207; Chapin v.
Dobson, 78 N. Y. 74. A contract valid in the State or
country where it is made will be enforced, even in a
State or country where it would be invalid, provided
it be not there contrary to public policy or morals.
Parsons v. Trask, 7 Gray, 473; Milliken v. Pratt, supra;
Forepaugh v. Railroad Co., supra. On the other hand
it is equally clear that, in all that relates to the pro-
cedure for enforcing the contract, the law of the for-
mer controls. Bank v. Wood, supra; Carnegie v.
Morrison, supra; Hoadley v. Transportation Co., 115
Mass. 304. Thus the form in which and the parties by
or against whom the action shall be brought, the com-
petency of the evidence offered to establish the alleged
cause of action, whether the cause of action is barred
by the statutes of limitation, whether a party can main
tain an action in his own name or is obliged to use
that of another, whether a contract is negotiable, and
whether it is to be sued on as a specialty or a simple
contract, with many other similar things, have been
held to be matters affecting the remedy, and therefore
to be governed by the lex loci. Pearsall v. Dwight, 2
Mass. 84; Orr v. Amory, 11 id. 25; Foss v. Nutting, 14
Gray, 484; Leach v. Greene, 116 Mass. 534; Drake v.
Rice, 130 id. 410; Hoadley v. Transportation Co., 115
id. 304; McClees v. Burt, 5 Metc. (Mass.) 198; Richard-
son v. Railroad Co., 98 Mass. 85; Downer v. Chese-
brough, 36 Conn. 39; Leroux v. Brown, 12 C. B. 801;
Stoneman v. Railway Co., 52 N. Y. 429.

It is sometimes difficult to decide whether the question raised in a given case relates to the nature and validity of the contract or to the remedy upon it. We think in the present instance it relates to the former, and not to the latter. The respondent claimed that under the laws of Vermont his obligation growing out of his indorse

ments was not au absolute one, but depended, as between the parties, upon the oral agreement or understanding, if any, between them at the time when he placed his name upon the notes. The respondent further claimed that when he placed his name upon the notes he did so under an oral agreement with the plaintiff bank by the terms of which his indorsement was only to be regarded as security for the payment by him to the bank of the money that he might collect on the mortgage which was assigned to him. Assuming, as we must for the purposes of this case, that the law of Vermout was as stated by the respondent, the testimony offered by him bore clearly upon the nature and validity of the contract between himself and the bank. The respondent could not show what the agreement was in any other way than that in which he offered to show it. It was not an attempt on his part to vary a written contract, because, under the laws of Vermont, the indorsement did not of itself constitute an absolute contract, but in order to determine what the contract was, it was necessary to ascertain what agreements or undertakings were entered into at the time of and in connection with and as part of the indorsement. If there were none, then the contract between the plaintiff and respondent was the usual contract growing out of a blank indorsement. If there were such undertakings or agreements, then they entered into and formed a part of the contract of indorsement. The evidence was rejected, not because it would have been incompetent to prove the facts which it was offered to establish had the contract been valid in this State, but on the ground that it related to a matter affecting the remedy. Back of all questions of remedy however lies the question of the contract itself, and we think the evidence should have been allowed as bearing upon that fact. See Williams v. Wade, 1 Metc. (Mass.) 82; Powers v. Lynch, 3 Mass. 77; Trimbey v. Vignier, 1 Bing. N. C. 151; Burrows v. Jemino, 2 Strange, 733; Bank v. Wood, supra; Wattson v. Campbell, 38 N. Y. 153; Dunn v. Welsh, 62 Ga. 241; Forepaugh v. Railroad Co., supra. Mass. Sup. Jud. Ct., June 27, 1891. Baxter Nat. Bank v. Talbot. Opinion by Morton, J.

DAMAGES-MEASURE-PROFITS.-Where Jumber dealers purchase and pay for lumber to be delivered at a future time, and then resell it, the measure of damages for breach of the contract and failure to deliver is, in the absence of a market at or near the place of delivery, the amount paid, together with the profits which would have arisen from the resale. This was a purchase in that market, and there was no more for sale. In a case of such actual sale, why should the court go into conjecture as to what the goods were there worth? And again, if lumber could have been purchased and brought there at a lower price, there is not only no proof of it, but we have satisfactory proof to the contrary, because the defendants had the lumber, and were by their solemn contract under the highest obli gations to deliver it, to say nothing of the requirement of common honesty, when they had agreed to do it, and had collected the purchase-price. And yet they preferred to break their contract, and dishonor their bank obligation, rather than deliver this lumber at the agreed price, which they declared had been bargained at too low a price. In Wood's Mayne on Damages, § 22, it is said: "But if they [the goods] cannot be purchased for want of a market, they must be esti mated in some other way. If there had been a contract to resell them, the price at which such contract was made will be evidence of their value." In the American and English Encyclopædia of Law it is said: "Where there is no market at the place of delivery, the price of the goods in the nearest market, with the cost of transportation added, determines their value." Ice Co. v. Webster, 68 Me. 463; Griffin v. Colver, 16 N.