So far as immunities are concerned,the two judicial discussions last quoted concern respectively problems of interpretation and problems of alienability. In many other cases difficult constitutional questions have arisen as the result of statutes impairing or extending various kinds of immunities. Litigants have, from time to time, had occasion to appeal both to the clause against impairment of the obligation of contracts and to the provision against depriving a person of property without due process of law. This has been especially true as regards exemptions from taxation[1] and exemptions from execution.[2]
If a word may now be permitted with respect to mere terms as such, the first thing to note is that the word "right" is overworked in the field of immunities as elsewhere.[3] As indicated, however, by the judicial expressions already quoted, the best synonym is, of course, the term "exemption."[4] It is instructive
- ↑ See Choate v. Trapp (1912), 224 U. S., 665.
- ↑ See Brearly School, Limited v. Ward (1911), 201 N. Y., 358; 94 N. E., 1001 (an interesting decision, with three judges dissenting). The other cases on the subject are collected in Ann. Cas., 1912 B, 259.
- ↑ See Brearly School, Limited v. Ward, cited in preceding note; also Internat. & G. N. Ry. Co. v. State (1899), 75 Tex., 356, quoted from, ante, n. 91.
- ↑ Compare also Wilson v. Gaines (1877), 9 Baxt. (Tenn.), 546, 550–551, Turney, J.: "The use in the statutes of two only of the words of the constitution, i. e., 'rights' and 'privileges,' and the omission to employ either of the other two following in immediate succession, viz.,' immunities' and 'exemptions,' either of which would have made clear the construction claimed by complainant, evidence a purposed intention on the part of the legislature not to grant the benefit claimed by the bill."Only very rarely is a court found seeking to draw a subtle distinction between an immunity and an exemption. Thus, in a recent case, Strahan v. Wayne Co. (June, 1913), 142 N. W., 678, 680 (Neb.), Mr. Justice Barnes said: "It has been held by the great weight of authority that dower is not immune (from the inheritance tax) because it is dower, but because it * * * belonged to her unchoately during (the husband's) life. * * * Strictly speaking, the widow's share -should be considered as immune, rather than exempt, from an inheritance tax. It is free, rather than freed, from such tax."
the act of incorporation; but if it holds rights, privileges, and franchises in the nature of property, secured by contract based on valuable consideration, these will survive the dissolution of the corporation, for the benefit of those who may have a right to or just claim upon its assets."
Compare, as regard homestead exemptions, Sloss, J., in Smith v. Bougham (1909), 156 Cal., 359, 365: "A declaration of homestead * * * attaches certain privileges and immunities to such title as may at the time be held."