CHAPTER V:
THE IMPAIRMENT OF THE OBLIGATION OF CONTRACTS
56. The prohibition affects only state laws.
57. The term "law" defined.
58. Judgments of state courts not conclusive either as to the
non-existence or non-impairment of contracts.
59. The obligation of a contract defined.
60. Legislation as to remedies.
61. The term "contracts" defined.
62. State insolvent laws.
63. Judgments as contracts.
64. Municipal taxation.
65. History of the prohibition.
66. State grants.
67. Express contracts of exemption from taxation.
68. Express grants of peculiar privileges.
69. Contracts between a state and its political subdivisions.
70. Implied contracts in charters of incorporation.
71. Implied corporate exemption from taxation.
72. Implied grants of peculiar privileges.
73. Exemption from the operation of the police power.
74. Contracts as to matters of public concern.
75. The withdrawal by a state of its consent to be sued.
76. The force and effect of the prohibition as construed by the
Supreme Court.
The prohibition affects only state laws.
56. Section 10 of Article I of the Constitution declares that
"no state shall ... pass any ... law impairing the obligation of
contracts. This prohibition does not in terms affect the exercise
of legislative power by the government of the United States, and
not only is there not in the Constitution any similar prohibition
with regard to the United States, but by the grant of power to
Congress, "to establish uniform laws on the subject of
bankruptcies throughout the United States," (1) authority is
expressly conferred to impair the obligation of contracts between
debtors and creditors; (2) and under the doctrine of the implied
powers, as construed by the court, Congress may impair the
obligation of contracts by authorizing the issue of notes which
shall be a legal tender in satisfaction of antecedently
contracted debts. (3) The constitutional prohibition is likewise
inoperative with regard to the acts of any political organization
which at the time of the adoption of the act in question is not
one of the United States; thus, the Constitution having, under
the resolution of the Convention of 1787 and the Act of Congress
of February, 1788, gone into effect on the first Wednesday of
March, 1789, a statute enacted by the state of Virginia in 1788
was not affected by the constitutional prohibition. (4) So,
also, a statute enacted by the republic of Texas before its
admission into the United States as the state of Texas could not
be held to be void for repugnancy to this clause of the
Constitution. (5)
The term "law" defined.
57. The prohibition of the passage by a state of any "law
impairing the obligation of contracts," would, if strictly
construed, include under the word "law" only statutes enacted by
state legislatures, but it has been determined that the word
"law" comprehends, in addition to acts of legislation, state
constitutions and constitutional amendments; (6) judicial
decisions of state courts of last resort, rendered subsequently
to the making of the contract in question, and antecedently to
the suit in which the court determines the invalidity of the
contract, and altering by construction the constitution and
statutes of the state in force when the contract was made; (7)
and, in general, any act or order, from whatever source
emanating, to which a state, by its enforcement thereof, gives
the force of a law; as, for instance, a by-law or ordinance of a
municipal corporation (8) or a statute enacted by the congress of
the Confederacy, and enforced during the war of the rebellion by
a court of a state within the insurgent lines. (9) Obviously the
law, which is alleged to have impaired the obligation of the
contract must have been enacted subsequently to the making of the
contract, for a law enacted antecedently to the making of the
contract can be said to have entered into, and become part of,
the contract. (10) The judgment of the state court in the cause,
determining the particular contract to be invalid, cannot be said
to be a law impairing the obligation of the contract, for
otherwise the federal court of last resort would be called upon
to "re-examine the judgments of the state courts in every case
involving the enforcement of contracts." As Harlan, J., said, in
L. W. Co. v. Easton, (11) "The state court may erroneously
determine questions arising under a contract, which constitute
the basis of the suit before it; it may hold a contract to be
void, which, in our opinion, is valid; it may adjudge a contract
to be valid, which, in our opinion, is void; or its
interpretation of the contract may, in our opinion, be radically
wrong; but, in neither of such cases, would the judgment be
reviewable by this court under the clause of the Constitution
protecting the obligation of contracts against impairment by
state legislation, and under the existing statutes defining and
regulating its jurisdiction, unless that judgment in terms, or by
its necessary operation, gives effect to some provision Of the
state constitution, or some legislative enactment of the state,
which is claimed by the unsuccessful party to impair the
obligation of the particular contract in question." (12) It
must, therefore, appear in any cause in which it is sought to
reverse in the Supreme Court of the United States, a decree or
judgment of a state court for contravention of the constitutional
prohibition of the impairment of contracts, that in the
particular case the state court enforced to the prejudice of the
plaintiff in error some act of state, either in the form of a
state constitution, or an act of the state legislature, or a
judgment of a court in another case, or an act of an extrinsic
authority to which the state by its adoption thereof gave the
force of law, and that the act of state, whatever its form, was,
as affecting the contract, put into operation subsequently to the
making of the contract.
Judgments of state courts not conclusive either as to the non-
existence or non-impairment of contracts.
58. In questions under this clause of the Constitution the
courts of the United States do not accept as conclusive upon them
the judgment of the state court either is to the non-existence of
contracts or as to their nonimpairment, (13) for, if the decision
of the state court were to be accepted without inquiry or
examination, the constitutional prohibition would be nugatory.
The obligation of a contract defined.
59. The obligation of a contract is the duty of performance
which the law imposes on one, or other, or both, of the parties
to the contract. (14) As Marshall, C. J., said in the case
cited, "Any law which releases a part of this obligation must in
the literal sense of the word impair it." The application of the
constitutional prohibition is not dependent on the extent of the
impairment of vested rights." (15)
Legislation as to remedies.
60. A state may, without impairment of the obligation of a
contract, regulate, or even limit, the remedies for the
enforcement of that contract, provided that it does not take away
all remedies therefor, and that it leaves in force a substantial
remedy. (16) Thus a state may, in the case of a corporation
whose charter requires that service of process on the corporation
shall be made only at its principal office, provide by subsequent
legislation that such process may be served on any officer,
clerk, or agent of the corporation. (17) A state may abolish
imprisonment for debt as a remedy f or breach of contract; (18)
it may validate technically defective Mortgages, (19) or
conveyances by femes covert ; (20) it may by statute grant new
trials and create new tribunals to set aside grants or reverse
judgments alleged to be fraudulent; (21) it may provide speedy
and equitable methods for determining the title to lands under
patents granted by the state; (22) it may authorize at the
request of all parties in interest the discharge of testamentary
trustees of real estate ; (23) it may change the rate of interest
to be paid to the purchaser in the case of the redemption of
mortgaged premises sold under foreclosure; (24) it may repeal
usury laws which unrepealed would have avoided the contract; (25)
it may prescribe a scheme for the reorganization of an
embarrassed corporation and provide that creditors who have
notice of, and do not dissent from, the scheme shall be bound
thereby; (26) it may reduce the limitation of time for bringing
suit provided that a reasonable limit elapses after the enactment
before the limitation bars a suit upon existing contracts; (27)
it may require registration as a prerequisite to the legal
enforcement of existing mortgages, provided that a reasonable
period be allowed before the law goes into effect; (28) it may
require holders of tax sale certificates to give notice to the
occupant of the land, if any there be, before taking a tax deed;
(29) it may require registration with municipal officials of
judgments against a municipality; (30) it may provide that a
city shall not be sued until the claim has been presented to the
city council and disallowed by it, and that, thereupon, an appeal
to court, if made, shall be made within a limited time; (31) it
may free shareholders of a corporation from individual liability
for debts of the corporation to an amount greater than their
shares, for such legislation does not impair the direct liability
of the corporation; (32) it may, after a state bank has obtained
judgment against a party, authorize that party to set off against
the judgment circulating notes of the bank procured by him after
the entry of the judgment; (33) it may, after judgment has been
obtained, reduce the rate of interest thereafter to accrue on
that judgment; (34) and, a disseised tenant for years being
entitled to sue on the landlord's covenant for quiet possession
and also on a statutory remedy for forcible entry and detainer,
the state may take away the statutory remedy, provided that the
action on the covenant be left unimpaired. (35) A state, having
issued bonds, and having by a subsequent statute provided for the
funding of those bonds on certain terms at a reduced rate of
interest, may, by a later statute, prohibit the funding of a
specified class of those bonds until by judicial decree their
validity shall have been determined, f or the original remedy of
the bondholder is not thereby impaired. (36) So also, a state,
which has contracted to receive its taxes in the notes of a
certain bank, may, by statute, provide that the only remedy for
taxpayers whose tender of such notes may be refused shall be to
pay in legal money and within a time limited to bring suit
against the tax collector, judgment against whom shall be a
preferred claim against the state. (37) So also where the laws
of a state permit coupons of state bonds to be received in
payment of state taxes, provided that in case of the refusal of
such coupons when tendered the holder thereof might enforce his
rights under the contract by suing out an alternative mandamus
against the officer refusing the coupons, and if judgment should
be rendered in favour of the holder of the coupons that he could
then have forthwith a peremptory writ of mandamus for the
recovery of damages and costs, the obligation of the contract was
not impaired by a subsequent statute which required, in case of
the refusal of the tender of the coupons, a payment of the state
taxes in lawful money, and a lodging of the coupons in a state
court of competent jurisdiction, and the subsequent framing of an
issue to determine whether or not the coupons were genuine and
legally receivable for taxes, with a right of appeal to the state
court of last resort. (38)
On the other hand, a state, in acting upon the remedy,
cannot take away all, or a substantial part, of the power for the
enforcement of a contract. It, therefore, cannot forbid its
courts to entertain jurisdiction of a suit to enforce, or obtain
damages for the breach of, a class of contracts legally valid
when made; (39) nor can a state forbid its courts, after the
abolition of slavery, to take jurisdiction of actions upon
contracts made before that abolition and the consideration for
which was the price of slaves; (40) nor could a state, after the
restoration of peace, declare void a contract made between its
citizens during the war of the rebellion stipulating for payment
in confederate notes; (41) nor can a state, after the making of
a contract, change to the prejudice of either party the measure
of damages for its breach; (42) nor can a state, by subsequent
legislation, impose as a condition precedent to the legal
enforcement of a contractual right, that he who seeks to enforce
that right shall prove an extrinsic and independent fact that has
no necessary connection with the right to be enforced, as, for
instance, that he never bore arms in support of, or never aided,
the rebellion against the United States; (43) or that he has
paid certain taxes; nor can it permit the defendant to set off
damages not caused by the plaintiff, as, for instance, the
defendant's loss of property resulting from the war of the
rebellion; (44) nor can a state, after a judgment has been
enrolled, materially increase the debtor's exemption; (45) nor
can a state after the making of a mortgage enlarge the period of
time allowed for the redemption after foreclosure; (46) nor
forbid a sale in foreclosure at which less than two-thirds of the
value of the mortgaged premises as fixed by appraisement shall be
realized ; (47) nor take away the right to compound interest, if
given by the law existing at the time of the making of the
contract; (48) nor repeal a statute in force at the time of
making the contract which renders the stock of a shareholder
liable for the debts of the corporation; (49) nor materially
change the rules of evidence which were in existence when the
contract was made. (50)
The term "contracts" defined.
61. The term "contracts," as used in the constitutional
prohibition, includes both executory and executed contracts, (51)
comprehending, within the former class, promissory notes and
bills of exchange, (52) corporate bonds, (53) municipal bonds,
(54 and municipal contracts for the payment of the salaries of
their employees (55) and, generally, all legally enforceable
contracts to do, or not to do, any particular act; and, within
the latter class, grants and judgements founded upon contracts,
(56) but not judgements founded upon torts; (57) nor is marriage
a contract which may not be impaired by divorce legislation. (58)
There can be no impairment of the obligation of a contract which
has not been legally made. (59) Thus a vote of the majority of
the qualified voters of a country at an election held under a
statute incorporating a railway and authorizing an issue of the
bonds of the county in payment for the stock of the railway, if
the qualified voters so decide it, does not constitute a contract
whose obligation would be impaired by an amendment of the state
constitution, (60) or by a repeal of the statute, (61) before the
subscription be made or the bonds issued. So, also bonds which
are fraudulently put into circulation by a state treasurer after
they have been declared void by the state constitution cannot
impose any liability upon the state. (62) And a contract which
is void because its execution is beyond the powers of the
municipality (63) or county (64) attempting its execution cannot
irrevocably bind the municipality or county. Moreover a state
cannot enter into an irrepealable contract by a conveyance of
property in disregard of a public trust under which it is bound
to hold and manage that property, as in the case of a conveyance
of soil under navigable waters. (65) On the same principle, a
state statute which is void by reason of repugnancy to the
Constitution of the United States cannot constitute a contract of
exemption from state taxation; as, for instance, a statute
imposing taxation on national banks to an extent not permitted by
the National Banking Act, and, therefore, a subsequent state
statute imposing on national banks a taxation which, though a
heavier burden than that imposed by the earlier statute, is yet
within the limits permitted by the National Banking Act, does not
impair the obligation of any contract. (66) On the same
principle, statutory exemption from state taxation, if granted in
violation of the constitution of the state, does not bind the
state as a contract. (67)
State insolvent laws.
62. There was, for some time, a controversy as to the effect of
the constitutional prohibition upon state insolvent laws. In
Sturges v. Crowminshield, (68) the action being brought in a
federal court within the state of Massachusetts, and the
plaintiff being a citizen of Massachusetts, and the defendant a
citizen of New York, it was held that discharge under an
insolvent law of New York, enacted subsequently to the making
within that state of a contract to be performed within the state,
was void as an impairment of the obligation of that contract. In
McMillan v. McNeill, (69) the action being brought in a court of
the state of Louisiana, the plaintiff and defendant both being
citizens of South Carolina, and the contract having been made and
stipulated to be performed in that state, it was held that a
discharge under an antecedently enacted law of Louisiana impaired
the obligation of the contract, and as no bar to its enforcement.
In F. & M. Bank v. Smith (70) the action being brought in a court
of the state of Pennsylvania, and both plaintiff and defendant
being residents of that state, and the contract having been made,
and to be performed, in that state, it was held that a discharge
under a subsequently enacted insolvent law of that state was no
bar to the action. In Ogden v. Saunders (71) the plaintiff being
a Citizen of Kentucky and the defendant a citizen of New York,
the contract having been made in New York to be performed in that
state, action having been brought in a federal court in the state
of Louisiana, it was held that a discharge under an antecedently
enacted insolvent Law of the state of New York was no bar to the
action; and in Shaw v. Robbins, (72) the same ruling was made,
the action being brought in a court of the state of Ohio the
plaintiff being a citizen of Massachusetts, the defendant a
citizen of New York, and the discharge set up being one that had
been obtained under an antecedently enacted insolvent law of the
last-mentioned state. In Boyle v. Zacharier (73) Story, J., said,
"The effect of the discharge 'Under the insolvent act is of
course at rest, so far as it is covered by the antecedent
decisions made by this court. The ultimate opinion delivered by
Mr. Justice Johnson in the case of Ogden v. Saunders, (74) was
concurred in and adopted by judges, who were in the minority upon
the three general question of the Constitutionality of state
insolvent laws, so largely discussed in that case, and (75)
Marshall, C. J., expressed the same view as to the effect of the
judgment in Ogden v. Saunders. In Sudyam v. Broadnax, (76) the
action having been brought in a court of the state of Alabama,
the plaintiff being a citizen of New York, it was held that a
judicial declaration of the insolvency of a decedent's estate
under the terms of an antecedently enacted statute of Alabama was
powerless to discharge a contract made by the decedent in his
lifetime in New York and stipulated to be performed in that
state. In Cook v. Moffat, (77) the action being brought in a
federal court in the state of Maryland, the plaintiff being a
citizen of New York and the defendant a citizen of Maryland, and
the contract having been made in New York to be performed in that
state, it was held that a discharge under an antecedently enacted
statute of Maryland was no bar to the action. In Baldwin v. Hale,
(78) the action having been brought in a federal court in the
state of Massachusetts, the plaintiff being a citizen of Vermont
and the defendant a citizen of Massachusetts, and the contract
having been made in Massachusetts, to be performed in that state,
it was held that a discharge under an antecedently enacted
statute of Massachusetts did not bar the action. The result of
the cases is, that a discharge under the insolvent laws of a
state is not a bar to an action on a contract for the payment of
money, first: when the law under which the discharge has been
granted has been enacted subsequently to the making of the
contract; (79) second: when, although the discharge has been
granted under a law enacted antecedently to the making of the
contract, the contract was made in another state to be performed
in that other state; (80) third: when, although the discharge has
been granted under a law enacted antecedently to the making of
the contract, and although the contract was made and to be
performed in the state in which the discharge has been granted,
the action upon the contract is brought in another state, by a
party who is not a citizen of the state granting the discharge,
and who has not made himself a party to the proceedings in
insolvency; (81) and fourth, when, although the discharge has
been granted under a law enacted antecedently to the making of
the contract, and although the contract was made and to be
performed in the state in which the discharge has been granted,
the action upon the Contract is brought in the state granting the
discharge by one who is not a citizen of that state, and who has
not made himself a party to the proceedings in insolvency. (82)
The questions, as yet not concluded by the authority of the
court, are as to the effect of the discharge as regards
creditors, who, though not citizens of the state granting the
discharge, voluntarily become parties to the insolvency
proceedings, or, who, being citizens of the state granting the
discharge, and being duly notified of the insolvency proceedings,
neglect or refuse to become parties thereto.
Judgments as contracts.
63. Contracts for the payment of money being within the
protection of the constitutional prohibition of the impairment of
their obligation, judgments upon such contracts are equally
entitled to protection. (83) Therefore, a judgment against a
municipal corporation founded upon a breach of contract is not
affected by a subsequent legislative abolition of the
municipality's power to levy taxes for the payment of its debts.
(84) But the rights of a judgment creditor are not impaired by a
state statute reducing the rate of interest thereafter to accrue
upon existing judgments; (85) nor are judgments founded upon
torts contracts whose obligation will be protected against
subsequent legislation. (86)
Municipal taxation.
64. A state cannot take away from a municipality existing powers
of taxation so as to deprive of his compensation an officer who
has served his term. (87) County bonds issued by public officers
under authority of law either upon the subscription, or upon the
agreement to subscribe, to the stock of a railway constitute a
contract between the county and the bondholders, whose obligation
cannot be impaired by a subsequent legislative repeal of the
statute authorizing the subscription, or by a subsequent
amendment to the state constitution prohibiting such a
subscription. (88) But where public officers are by statute
authorized to issue bonds in aid of railway construction only
upon the fulfillment of a condition precedent which is not
fulfilled before the adoption of an amended state constitution
prohibiting the issue of such bonds there is no contract whose
obligation is impaired by the adoption of the state constitution.
(89) On the same principle, a statutory authorization of
borrowing of money by a municipality is not a contract between
the state and the municipal creditors whose obligation can be
impaired by the subsequent exercise by the state of the power of
modifying the rate of taxation or of exempting certain property
from taxation, (90) but a state cannot dissolve an existing
municipal corporation having a bonded debt, for 'Whose payment
powers of taxation have been granted and specifically pledged,
for that dissolution interferes with the exercise of such power
of taxation."' Nor can a state withdraw or restrict the taxing
power of a municipality so as to impair the obligation of
contracts which have been made on the pledge, express or implied,
that taxing power shall be exercised for their fulfillment. (92)
A statutory prohibition of the issuing by the courts of the state
of a mandamus to compel the levying of a tax for the payment of
the interest upon, or the principal of, municipal bonds, whose
issue had been legally authorized, impairs the contract between
the municipality and the bondholder. (93) In general, the
statutory authorization of the contracting by a municipality of
an extraordinary debt by the issue of negotiable securities
therefor conclusively implies a power in the municipality to levy
taxes sufficient to pay the accruing interest upon, and the
matured principal of, the debt, unless the statute conferring the
authority, or the constitution of the state, or some general law
in force at the time, clearly manifests a contrary legislative
intent. (94)
History of the prohibition.
65. It has never been doubted that contracts between individuals
were protected by the constitutional provision, but it was
formerly a matter of grave doubt whether or not contracts to
which a state was a party were likewise entitled to protection.
The history of the Constitution shows clearly that the mischiefs
which the framers of the Constitution intended to remedy by this
prohibition were, primarily, those caused by state legislation
enabling debtors to discharge their debts otherwise than as
stipulated in their contracts, and that the prohibition was not
intended by its originators to interfere with the exercise of
state sovereignty in cases of other than private contracts. This
restriction on the power of the states is not to be found in
either Mr. Pinckney's, Mr. Hamilton's, or Mr. Paterson's projects
as presented to the convention, nor is it implied in Mr.
Madison's resolutions, nor does it appear in the draft reported
by the Committee of Five on 6th August, 1787; but when Article
XIII of the report of that committee was under consideration on
28th August, Mr. King "moved to add in the words used in the
ordinance of Congress establishing new states, a prohibition on
the states to interfere in private contracts," but, on motion of
Mr. Rutledge, as a substitute for Mr. King's proposition, there
was adopted a prohibition of state bills of attainder and ex post
facto laws. (95). The journal of the convention mentions Mr.
Rutledge's motion, but omits all reference to Mr. King's
proposition. Mr. Madison reports Mr. King's resolution, with the
mention of declarations of opinion in favour of it by Messrs.
Sherman, Wilson and Madison, and objections to it by Messrs.
Governor Morris and Mason, on the ground that state laws limiting
the times within which actions might be brought necessarily
interfered with contracts, and ought not to be prohibited, and
that there might be other cases in which such interference's
would be proper. There does not seem to be any record of any
other discussion of this subject in the convention. The Committee
of Revision reported on 12th September, 1787, to the convention
their revised draft of the Constitution, in which Article 1,
Section 10, declares "No state shall ... pass any ... laws
altering or impairing the obligation of contracts." In convention
on Friday, 14th September, 1787, the clause was finally amended
and put into the form in which it appears in the Constitution,
there being, so far as is known, no debate on the subject, save
by Mr. Gerry, who "entered into observations inculcating the
importance of the public faith and the propriety of the restraint
put on the states from impairing the obligation of contracts,"
and unavailingly endeavored to obtain the insertion in the
Constitution of a similar restraint upon congressional action. 6
Mr. Bancroft states,"' with reference to the Committee of
Revision's report, that "Governor Morris retained the clause
forbidding ex post facto laws -- and resolved not to countenance
the issue of paper money and the consequent violation of
contracts,' (98) he of himself added the words, "No state shall
pass laws altering or impairing the obligation of contracts."
(99) Mr. Bancroft also quotes from the official report to the
Governor of Connecticut made by Roger Sherman and Oliver
Ellsworth, the deputies from that state to the Federal
Convention, wherein they say, "The restraint on the legislatures
of the several states respecting emitting bills of credit, making
anything but money a tender in payment of debts, or impairing the
obligation of contracts by ex post facto laws, was thought
necessary as a security to commerce, in which the interest of
foreigners, as well as of the citizens of different states, may
be affected." The clause does not appear to have been made a
subject of discussion in any of the state conventions called to
ratify the Constitution. Mr. Hamilton, when Secretary of the
Treasury, said in his memorandum of 28th May, 1790, to President
Washington on the subject of the resolutions of Congress with
regard to the arrears of pay due to certain soldiers of the
Revolution, (100) "The Constitution of the United States
interdicts the states individually from passing any law impairing
the obligation of contracts. This, to the more enlightened part
of the community, was not one of the least recommendations of
that Constitution. The too frequent intermeddlings of the state
legislatures, in relation to private contracts were extensively
felt, and seriously lamented; and a Constitution which promised a
prevention, was, by those who felt and thought in that manner,
eagerly embraced. " Mr. Madison said in the Federalist, (101)
"Bills of attainder, ex post facto laws, and laws impairing the
obligation of contracts, are contrary to the first principles of
the social, compact, and to every principle of sound legislation.
The two former are expressly prohibited by the declarations
prefixed to some of the state constitutions, and all of them are
prohibited by the spirit and scope of these fundamental charters.
Our own experience has taught us, nevertheless, that additional
fences against these dangers ought not be omitted. Very properly,
therefore, have the convention added this constitutional bulwark
in favour of personal security and private rights; and I am much
deceived, if they have not, in so doing, as faithfully consulted
the genuine sentiments as the undoubted interests of their
constituents. The sober people of America are weary of the
fluctuating policy which has directed the public councils. They
have seen with regret and with indignation, that sudden changes,
and legislative interferences, in cases affecting personal
rights, become jobs in the hands of enterprising and influential
speculators, and snares to the more industrious and less informed
part of the community. They have seen, too, that one legislative
interference is but the first link of a long chain of
repetitions; every subsequent interference being naturally
produced by the effects of the preceding. They very rightly
infer, therefore, that some thorough reform is wanting, which
will banish speculations on public measures, inspire a general
prudence and industry, and give a regular course to the business
of society. " In Sturges v. Crowninshield, (102) Marshall, C. J
., said " The fair, and, we think, the necessary construction of
the sentence requires that we should give these words their full
and obvious meaning. A general dissatisfaction with that lax
system of legislation which followed the war of our revolution
undoubtedly directed the mind of the convention to this subject.
It is probable that laws, such as those which have been stated in
argument, produced the loudest complaints, were most immediately
felt. The attention of the convention, therefore, was
particularly directed to paper money, and to acts which enabled
the debtor to discharge his debt otherwise than as stipulated in
the contract. Had nothing more been intended, nothing would have
been expressed. But, in the opinion of the convention, much more
remained to be done. The same mischief might be effected by other
means. To restore public confidence completely, it was necessary
not only to prohibit the use of particular means by which it
might be effected, but to prohibit the use of any means by which
the same mischief might be produced. The convention appears to
have intended to establish a great principle, that contracts
should be inviolable. The Constitution, therefore, declares that
no state shall pass 'any law impairing the obligation of
contracts.'"
State grants.
66. In 1810 the judgment in Fletcher v. Peck(103) established
the doctrine that contracts to which a state is a party are
within the protection of the constitutional prohibition. The
facts in that case were these: in 1795 the state of Georgia
enacted a statute authorizing the issue of a patent to " the
Georgia Co. "for a tract of and in that state, and on 13th
January, 1795, the patent was issued. By sundry mesne conveyances
before 1796 title in fee to a part of the tract vested in Peck,
who had purchased for value and without notice of any matter
which could invalidate the title of the state's grantees. In 1796
the state of Georgia enacted a statute repealing the Act of 1795
and annulling the patent to the Georgia Co. On 14th May, 1803,
Peck conveyed to Fletcher, covenanting, inter alia, that his
title had been "in no way constitutionally or legally impaired by
virtue of any subsequent act of any subsequent legislature of the
state of Georgia." Fletcher brought covenant sur deed against
Peck in the Circuit Court, declaring, inter alia, that the
statute of 1796 was enacted by reason of fraud practiced in
securing the enactment of the statute of 1795 and was an
impairment of Peck's title. Peck pleaded that he was a purchaser
for value and without notice, etc. Fletcher demurred, and the
court entered judgment thereon for Peck, which judgment was
affirmed in the Supreme Court on a writ of error, the ground of
decision being, that the constitutional prohibition comprehends
contracts executed, including grants, as well as contracts
executory, and that the states being prohibited from passing "any
bill of attainder, ex post facto law, or law impairing the
obligation of contracts," and the prohibition of bills of
attainder and ex post facto laws being a restraint upon
governmental action, there is not to be implied "in words which
import a general prohibition to impair the obligation of
contracts, an exception in favour of the right to impair the
obligation of those contracts into which the state may enter. "
It has, therefore, since 1810, been settled that the term
"contract" includes not only contracts between individuals,
private and corporate, but also contracts, executed and
executory, between the state and individuals, private and
corporate. Following in the line of Fletcher v. Peck, it has been
held that, a grant of land by a state to a railway corporation is
a contract whose obligation is impaired by a subsequent act
resuming the land, (104) that a state cannot deprive of his right
to recover mesne profits from a disseisor one whose title vested
under a compact between that state and another state, and who
under that compact was entitled to recover mesne profits, (105)
and that a state cannot, by statute, divest religious
corporations of their title to land acquired under colonial laws
antecedently to the revolution. (106)
Express contracts of exemption from taxation.
67. When in 1812 the case of New Jersey v. Wilson (107) came
before the Supreme Court, the doctrine of Fletcher v. Peck
necessarily required the court to hold that the state was bound
by the express contract contained in a statute which authorized
the purchase of certain land for the remnant of the tribe of
Delaware Indians, and which, in terms, declared that the land so
purchased "shall not hereafter be subject to any tax,,, and that
contract forbade the subsequent taxation of such lands, after
their sale to other parties with the state's consent. The legal
inviolability of a state's contract to exempt lands from state
taxation having been thus established, it followed that a similar
contract with regard to corporate franchises or assets was
entitled to the like protection, and that contracts of exemption
from state taxation, contained in corporate charters, or
stipulated by subsequent agreement, if made in express terms and
supported by an adequate consideration, constitute contracts so
binding upon the state that their obligation cannot be impaired
by a subsequent repeal of the charter, or by an imposition of a
rate of taxation inconsistent with the state's contract. (108)
Thus, the line and rolling stock of a railway cannot be taxed
when its charter exempts from taxation its "property" and
"shares;" (109) nor can the shares of the capital stock of a
corporation be taxed in the hands of the shareholders, when the
charter requires the corporation to pay to the state a tax on
each share of the stock "in lieu of all other taxes;" (110) nor
can the gross receipts of a corporation be taxed when its charter
exempts the corporation from taxation; (111) nor can a
corporation be taxed in excess of the limits specifically
designated in the charter, (112) or other contract. (113) Nor
can a municipal corporation, in the exercise of authority
delegated to it by statute, assess a street railway for a new
paving of a street, when the railway has contracted with the
municipality to keep the street in repair, for the acceptance of
that contract limits by necessary implication the obligation of
the railway to repairs, and relieves it from liability for
betterments; (114) nor can property held by a charitable
corporation as an investment be taxed, when its charter exempts
from taxation all property of whatever kind or description
belonging to, or owned by, the corporation. (115) An adequate
consideration for a charter exemption from taxation is to be
found in the exercise by the corporation of the powers conferred
by the charter, (116), or, in the case of corporations for
charitable purposes, in the contribution of funds to the
corporation for the accomplishment of its benevolent purpose.
(117) So also the building by a railway corporation of its line,
under the terms of a statute amendatory of its charter and
granting in express terms an exemption from taxation, constitutes
a consideration for the exemption, though the original charter
granted a power to the corporation, which it did not exercise, to
build the line. (118) Statutory exemptions from state taxation
not incorporated in charters and unsupported by a consideration
moving to the state, or from the exempted corporation, do not
constitute irrepealable contracts of exemption, but are subject
to modification repeal in the exercise of legislative discretion;
as, for instance, bounty laws offering such an exemption as a
inducement for the organization of corporations develop a
particular industry, (119) or voluntary grants exemption of the
real property of a charity from taxation. (120)
If the constitution of a state prohibits legislative grants
of exemption from Estate taxation, such a grant, though accepted
in good faith by the exempted corporation, cannot constitute a
contract whose obligation is impaired by a subsequent imposition
of taxation. (121) Such a constitutional prohibition operates to
extinguish an exemption made by contract in the case of a railway
which, having been exempted before the adoption of the
constitution prohibition, had been after the adoption thereof so
under foreclosure to reorganize the corporation (122) the same
principle, a statutory consolidation of two railways works the
dissolution of the original corporation and subjects the
consolidated corporation to the operative of an amended state
constitution, which took effect subsequently to the incorporation
of the original corporation but prior to their consolidation;
and, therefore, the state legislature may, without impairment of
the obligation the contract, prescribe rates for the
transportation passengers by the consolidated corporation, though
one the original corporations was by charter protected against
such legislative regulation. (123) General statutory
prohibitions of the exemption of corporations from state taxation
are not binding on subsequent legislatures, (124) unless referred
to in, and incorporated with, subsequently granted charters.
(125) In the case of a statutory consolidation accepted by two
railways, each of whose charters contained a limited exemption
from taxation, a reservation by a general statute bef ore the
enactment of the consolidating act and incorporated therewith,
operates to extinguish the limited exemption contained in the
original charters. (126) Of course, if the state in the charter
reserves the right to alter, modify, or repeal that charter, that
reservation authorizes any such amendment of the charter granted
as will not defeat nor substantially impair the obligation of the
grant or any rights that may (127) an be vested thereunder. The
first suggestion of any such reservation is to be found in the
judgment of Parsoms, C. J., in Wales v. Stetson, (128) which is
cited by Miller, J., in Greenwood v. Freight Co. (129) A
provision in a charter, or a general statute incorporated
therewith, that that charter shall not be alterable in any other
manner than by an act of the legislature, operates as a reserved
power authorizing a statutory amendment of the charter. (130)
Express contracts of exemption from state taxation are to be
strictly construed. (131) Thus a charter of a railway imposing
an annual tax assessed on the cost of the line, reserving the
right to impose taxes on the gross earnings of the corporation
and stipulating that the above several taxes shall be in lieu of
other taxation, is not a contract whose obligation is impaired by
a subsequent statute taxing lands owned by the railway and
mortgaged as security for its bonded debt, but not used in the
construction or operation of its line. (132) So a provision in
the charter of a ferry company that it shall be subject to the
same taxes as are now or hereafter may be imposed on other
ferries," does not exempt the corporation from liability to pay
an annual license fee on each of its boats, under the
requirements of a municipal ordinance enacted under due
legislative authority. (133) So the charter of a street railway
requiring the payment to the municipality of semi-annual license
as is now paid by other railway companies, is to be construed to
mean that the company shall not at any future time be required to
pay a greater license than that then required to be paid by other
companies. (134) So a general exemption of the property of a
corporation from taxation is construed as referring only to the
property held for the transaction of the business of the
company. (135) And the exemption of the capital of a corporation
from taxation does not necessarily exempt its stockholders from
taxation on their shares of stock. (136) Nor does a statute by
which lands granted to a railway company are exempted from
taxation until such lands shall be sold and conveyed by that
company remain operative after the full equitable title has been
transferred by the railway. (137) A charter granting to a
corporation all the rights, powers, and privileges "granted by
the charter" of another corporation, confers an exemption from
state taxation contained, not in the charter to which reference
is made, but in a statute amendatory thereof, and the exemption
thus conferred constitutes a contract whose obligation cannot be
impaired by a subsequent repeal of the statute conferring by
reference the right of exemption. (138) So a state may make a
contract conferring the exclusive right of building a toll bridge
by reference to a previously enacted statute. (139) On the other
hand, the incorporation of a railway by a charter investing the
company "for the purpose of making and using the said road with
all powers, rights, and privileges, and subject to the
disabilities and restrictions that have been conferred and
imposed upon" another railway company, whose charter contained an
express exemption from taxation, does not confer that exemption
on the former company. (140) So in the case of the merger of a
corporation having an exemption from state taxation for a limited
period with another corporation having an unlimited exemption,
the consolidating statute not granting any exemption, the
consolidated corporation cannot claim as to property acquired
from the first mentioned corporation any exemption beyond the
limits contained in the charter of that corporation. (141) So
also a grant of immunity from taxation will not pass merely by a
conveyance of the property and franchises of a railroad company,
although such company may hold its property exempt from taxation.
(142)
Express grants of peculiar privileges.
68. Express stipulations in a charter as to the privilege
thereby conferred on the corporation are also within the
protection of the constitutional prohibition; thus, a provision
in the charter of a toll bridge company that it shall not be
lawful for any person to erect another bridge within a specified
distance of the bridge thereby authorized, constitutes a contract
binding the state not to authorize the construction of such other
bridge, (143) but the authorization by the state of the
construction of a railway viaduct does not impair the obligation
of such a contract. (144) So, also, a statute forbidding the
transfer by any bank of any note, bill receivable, or other
evidence of debt, impairs the obligation of a contract created by
the grant in a charter of a bank of power to receive, hold, and
grant chattels and effects of what kind soever, and to receive
deposits and discount notes. (145) On the same principle, a
state is bound by its express contracts, not including
appointments to public office, between the state and an
individual for the performance of special services for a
stipulated compensation, (146) by its grants of franchises and
exclusive privileges, such as the privilege of supplying a
municipality with water, (147) or gas, (148), by its contracts
conceding peculiar privileges to state obligations, as, for
instance, stipulating that coupons of state bonds should be
receivable for taxes (149) or that the circulating notes of a
bank should be receivable in payment for taxes, (150) or of other
debts due to the state, (151) by contracts made by a political
subdivision of the state for the payment of the principal of, or
interest upon, the public debt of that sub-division (152) and by
the contracts of a corporation, whose sole shareholder is the
state, for the payment of the corporate debt. (153) Contracts
between two or more states, under which private rights have
vested, (154) are so far protected that neither state can annul
or modify such contracts to the prejudice of the private rights
so vested.
Contracts between a state and its political subdivisions.
69. There can be no contract between a state and political
subdivision of a state, such as a municipality giving to the
municipality a vested right to property, for all such property
rights are held by the municipality in trust for the state, and
are subject to revocation at the state's pleasure" Therefore, a
statute imposing pecuniary penalty upon a railway, payable by it
to county of the state for its failure to locate the railway on a
certain line, does not constitute a contract between the county
and the railway whose obligation is impaired by subsequent repeal
of the statute. (156) On the same principle, a legislative
charter of a railway, granting to it power to appropriate public
wharves erected by a municipality under a prior legislative grant
of authority, does not impair the obligation of any contract, nor
infringe upon the rights of the municipality. (157) And a grant
to a township of the power of taxation is always subject to
revocation, modification, and control by the legislative
authority of the state. (158)
Implied contracts in charters of incorporation.
70. The next mooted question under this clause of the
Constitution was whether or not a charter of incorporation
granted by a state constituted an implied contract on the part of
the state, whose obligation the state could not be permitted to
impair by a subsequent repeal or modification of the charter. The
leading case is Trustees of Dartmouth College v. Woodward, (159)
judgment in which was rendered in 1819, and the facts in which
were that, in 1769, the royal governor of the province of New
Hampshire, acting in the name of the king, granted to Dr.
Wheelock and eleven other persons a charter, whereby they were
incorporated under the title of "The Trustees of Dartmouth
College," with perpetual succession, and with "the whole power of
governing the college, of appointing and removing tutors, of
fixing their salaries, of directing the course of study to be
pursued by the students, and of filling vacancies created in
their own body." After the charter had been granted to, and
accepted by, the corporation, "property both real and personal,
which had been contributed for the benefit of the college, was
conveyed to and vested in the corporate body." Acts of the
legislature of the state of New Hampshire, passed on 27th June,
and 18th December, 1816, increased "the number of trustees to
twenty-one," gave "the appointment of the additional number to
the executive of the state," and created "a board of overseers,
to consist of twenty-five persons, of whom twenty-one are also
appointed by the executive of New Hampshire," with power to
inspect and control the most important acts of the trustees.,
Prior to the enactment of these statutes, one Woodward was the
secretary and treasurer of the corporation, and, as such, he had
in his possession the charter, corporate seal, records, and
certain chattels belonging to the corporation; in 1816 the
trustees removed him from office; in 1817 he was appointed
secretary and treasurer of the now board of trustees, which was
organized under the statutes of 1816, and, as he refused to
surrender to the original corporation the property which was in
his hands, that corporation brought an action of trover in a
court of the state of New Hampshire against special verdict,
judgment was entered in favour of the defendant by the state
court of last resort, and the cause was removed by writ of error
to the Supreme Court of the United States, which reversed the
judgment of the state court, the ground of decision being that
the college as incorporated was a private eleemosynary
corporation; that its charter, in terms, and by force of the
donations of funds made on the faith of it, constituted a
contract between the colonial government and the corporation as
the representative of the donors of those funds; that it was an
implied, but essential, condition of that contract that that
charter should not be so modified, without the consent of the
corporation, as to substitute governmental control for the will
of the donors; that, by the revolution, the duties, as well as
the powers, of government devolved on the people of New
Hampshire, and the obligations imposed by the charter were the
same under the state government as they had formerly been under
the colonial government; and that the effect of the statutes of
was to substitute the will of the state for the will of the
donors, and, to that extent, to impair the obligation of the
contract between the state and the corporation, as made by the
charter. Marshall, C. J., in his judgment, (160) after accepting
the suggestion, that "taken in its broad, unlimited sense, the
clause would be an unprofitable and vexatious interference with
the internal concerns of a state, would unnecessarily and
unwisely embarrass its legislation, and render immutable those
civil institutions, which were established for purposes of
internal government, and which, to subserve those purposes, ought
to vary with varying circumstances;" and "that as the framers of
the Constitution could never have intended to insert in that
instrument a provision so unnecessary, so mischievous, and so
repugnant to its general spirit the term 'contract ' must be
understood in a more limited sense, " expressly conceded, that "
the framers of the Constitution did not intend to restrain the
states in the regulation of their civil institutions, adopted f
or internal government, and that the instrument they have given
us is not to be so construed," and that "the provision of the
Constitution never has been understood to embrace other
contracts, than those which respect property, or some object of
value, and confer rights which may be asserted in a court of
justice," put his judgment on the ground that the charter of the
college constituted a contract as hereinbefore stated. Applying
to the Dartmouth College Case, the test so clearly stated by
Marshall, C. J., in Ogden v. Saunders, (161) that "the positive
authority of a decision is coextensive with the facts on which it
is made," it is obvious that the case is an authority for the
proposition, that the grant by a state of a charter of
incorporation for private purposes unconnected with the
administration of government constitutes a contract between the
state and the corporation, whose obligation is not to be
permitted to be impaired by a material modification of the terms
of the charter, either expressed or implied, and that, in every
such charter it is an implied condition of the contract, that the
state shall not by subsequent legislation change either the
purpose of the corporation, or its system of administration.
Implied corporate exemption from taxation.
71. The later cases have narrowed the doctrine of the Dartmouth
College case with regard to the implied contracts created by
charters, and thereby made obligatory, on the states granting
them. In Providence Bank v. Billings, (162) it was decided, in
1830, that the grant corporate privileges does not carry with it
any implied exemption of either the corporate franchise, or
property, from state taxation, and this principle has been
re-asserted in the later cases of M. G. Co. v. Shelby County,
(163) N. M. R. v. Maguire, (164) Bailey v. Maguire, (165) and
Tucker v. Ferguson. (166) Following in the same line, it has bee
held that the imposition in a charter of a specific form or rate
of taxation is not to be construed in the absence an express
contract of exemption from other taxation to constitute an
implied exemption from such other taxation; (167) and that the
grant to a corporation of the right to sell its franchises does
not entitle the vendee to exemption from taxation granted to the
vendor. (168)
Implied grants of peculiar privileges.
72. On the same principle, it has been held that legislative
grants of special or exclusive privileges are, in the interests
of the public, to be strictly construed, and do not vest in the
grantee any powers other than those expressly granted. (169)
Thus, the charter of a corporation by a state does not constitute
a contract by the state, either with the corporation or with the
creditors thereof, that the corporation shall not subsequently be
dissolved after due legal proceedings founded upon a forfeiture
of the corporate franchises either for misuser or for non-user.
(170) So, also, the creation of a corporation with the power to
erect a toll bridge, or to operate a ferry, does not impliedly
bind the state not to license the establishment of a competing
bridge or ferry, either toll or free. (171) The grant to a
contractor of the sole privilege of supplying a municipality with
water from a designated source is not impaired by the grant to
another party of the privilege of suppling it with water from
another source; (172) and a municipality which has granted to a
company the right to erect and operate an electric lighting plant
does not impair the obligation of the contract by erecting a
plant for itself. (173) Nor does the grant to a quasi-public
corporation of the right to sell its franchises by implication
extend to the vendee any exemption from rate regulation which was
possessed by its vendor; (174) nor may a vendee which is exempt
from such regulation claim exemption as to property which it
acquires from a company which was not exempt. (175)
Exemption from the operation of the police power.
73. There is no implied contract in a charter that the state
will exempt the corporate franchises and property from the
operation of such legislation as the state may deem necessary to
secure the welfare of its citizens. (176) The granting,
therefore, of a charter to an insurance company does not
invalidate a subsequent statute which requires that company to
make a full return showing its business condition to the proper
officers of the state. (177) Nor can a state surrender by
implication the right to regulate by subsequent legislation the
location of railway, stations and the stoppage of trains at those
stations; (178) nor to require by such legislation the fencing
of all tracks used by railway companies within the state. (179)
Nor can a state by implication exempt a railway company from
liability in damages for fires caused by its locomotives, (180)
or for injury to property in the construction of its road. (181)
On the same principle, the grant of a franchise to a railway does
not preclude a municipality from making reasonable regulations as
to the use of its streets. (182) A state which, by charter, has
authorized a railroad to consolidate with other roads, may forbid
its future consolidation with competing roads. (183) A state may
place reasonable limitations upon the rates of fare and freight
charged by its railways. (184) It may, in the case of a railway
whose charter authorizes the company from time to time to fix,
regulate and receive tolls and charges, vest in a commission by a
subsequent statute the power of fixing those rates. (185) It may
by statute regulate the rates of a water corporation whose
charter vested the power of fixing the rates in a board of
commissioners, some of whom were appointed by the company. (186)
And it has been said that where a water company was organized
under a statute which provided that the commissioners should not
reduce the rates below a given point, the state may by subsequent
statute authorize the commissioners to reduce the rates below
that point. (187) Indeed, while a state may, by an express
agreement, (188) bind itself not to regulate the rates charged by
a quasi-public corporation, such as a water supply (189) or
street railway (190) company, a state cannot, even by an express
contract, bargain away its right to enact such legislation as
may, be necessary, to secure the safety or to protect the health
or the morals of its citizens. It may amend statutes which
regulate the construction of railroads within its limits. (191)
It may forbid the continued prosecution of their respective
trades by corporations chartered by it for the purpose of
rendering dead animals into fertilizers, (192) or manufacturing
and selling liquors, (193) or selling lottery tickets and drawing
lotteries. (194) And, upon this principle, it ha s also been
held that a state may, in derogation of a previous grant of the
exclusive privilege of slaughtering cattle, authorize others to
conduct the same business. (195)
Contracts as to matters of public concern.
74. In Dartmouth College v. Woodward, (196) Marshall, C. J.,
conceded that "the framers of the Constitution did not intend to
restrain a state from the regulation of its civil institutions
adopted for internal government." On this principle, there ca n
be no implied contract on the part of a state that it will not
amend its constitution, in so far as that constitution deals with
the administration of the public concerns of the state. (197)
Nor can a state legislature bind subsequent legislatures as to
the exercise of the powers of sovereignty over the political
subdivisions of the state, and over its municipal corporations
with regard to subject matters of public and not of private
interest, as, for instance, the location of a county seat, (198)
or the boundaries of its municipalities, (199) or the sale of
property held by a municipality for public purposes, such as
water works, (200) or the appropriation under state authority of
municipal obligations by their holders as a set-off against
municipal claims against those holders; (201) nor does the
appointment by the state of a public officer for a fixed term for
a stipulated compensation constitute a contract between the state
and the appointee whose obligation is impaired by either the
reduction of his compensation or his removal from office, (202)
but after the duties have been performed by the appointee of a
municipal corporation during the term of his office there is a
contract whose obligation is impaired by a subsequent statute
abolishing the power of taxation for the payment of his
compensation. (203) Of course, in the case of an officer
appointed under a statute which in terms defines the tenure of
the office to be according to law, a subsequent statute removing
him is not an impairment of the contract. (204)
The withdrawal by a state of its consent to be sued.
75. The state's consent to be sued being voluntary and of grace,
that consent does not constitute a contract whose obligation can
be impaired by a subsequent repeal of the statute permitting such
suit, (205) especially where the statute authorizing the suit has
provided no means for the enforcement of any judgment that may be
rendered against the state. Under such circumstances the state
may, by subsequent legislation, withdraw its consent to be sued.
(206) In this connection, that which was forcibly said by
Mathews, J., in the judgment of the court in the case of In re
Ayers, (207) may well be borne in mind. The learned judge said:
"It cannot be doubted that the XI Amendment to the Constitution
operates to create an important distinction between contracts of
a state with individuals and contracts between individual
parties. In the case of contracts between individuals, the
remedies for their enforcement or breach, in existence at the
time they were entered into, are a part of the agreement itself,
and constitute a substantial part of its obligation." That
obligation ... cannot be impaired by any subsequent legislation.
Thus, not only the covenants and conditions of the contract are
preserved, but also the substance of the original remedies for
its enforcement. It is different with contracts between
individuals and a state. In respect to these, by virtue of the XI
Amendment to the Constitution, there being no remedy by a suit
against the state, the contract is substantially without
sanction, except that which arises out of the honour and good
faith of the state itself, and these are not subject to coercion.
Although the state may, at the inception of the contract, have
consented as one of its conditions to subject itself to suit, it
may subsequently withdraw that consent and resume its original
immunity, without any violation of the obligation of its contract
in the constitutional sense." (209) Yet, as was pointed out by
Bradley, J., in Hans v. Louisiana,' (210) 'where property or
rights are enjoyed under a grant or contract made by a state,
they cannot wantonly be invaded. Whilst the state cannot be
compelled by suit to perform its contracts, any attempt on its
part to violate property or rights acquired under its contracts
may be judicially resisted; and any law impairing the obligation
of contracts, under which such property or rights are held is
void and powerless to affect their enjoyment."
The force and effect of the prohibition as construed by the
Supreme Court.
76. The force and effect of the prohibition, as construed by the
court, is, that a state may not, by any law or by any act to
which the state, by its enforcement thereof, gives the force of a
law, deprive a party of the legal right of enforcing, or
obtaining compensation for the breach of, an express contract,
executed or executory, between individuals, or between a state
and individuals, but a state may regulate or limit the remedies
of the contracting parties, provided that it leaves in force a
substantial part of the legal remedies which subsisted at the
time of the making of the contract.
Footnotes:
(1) Article I, Section 9.
(2) Sturges v. Crowninshield, 4 Wheat. 122, 194. See also
Hanover Nat. Bank v. Moyses, 186 U.S. 181, 188; 30 Stat.
544, c. 541; 32 Stat. 797, c. 487.
(3) Supra, Chap. II.
(4) Owings v. Speed, 5 Wheat. 420.
(5) League v. De Young, 11 How. 185, 203. See also Scott v.
Jones, 5 How. 343, 378.
(6) R. Co. v. McClure, 10 Wall. 511; White v. Hart, 13 id. 646;
Gunn v. Barry, 15 id. 610; County of Moultrie v. Rockingham
T. C. S. Bank, 92 U.S. 631; Edwards v. Kearzey, 96 id. 595;
Keith v. Clark, 97 id. 454; N. 0. G. Co. v. L. L. Co., 115
id. 650; Fisk v. Jeffersou Police Jury, 116 id. 131;
Shreveport v. Cole, 129 id. 36; Bier v. McGehee, 148 id.
137; Hanford v. Davies, 163 id. 273; H. & T. C. Ry. v.
Texas, 170 id. 243.
(7) Gelpcke v. Dubuque, 1 Wall. 175; Havemeyer v. Iowa Countv, 3
id. 294; Chicago v. Sheldon, 9 id. 50; The City v. Lamson,
ibid. 477; Olcott v. The Supervisors, 16 id. 678; Douglass
v. County of Pike, 101 U. S. 677; County of Ralls v.
Douglass, 105 id. 728; Pleasant Township v. A. L. I. Co.,
138 id. 67; Loeb v. Columbia Township Trustees, 179 id. 472,
492; Wilkes County v. Coler, 180 id. 506. This doctrine was
first suggested by Taney, C. J., who said, in O. L. I. & T.
Co. v. Debolt, 16 How. 432: "The sound and true rule is,
that if the contract when made was valid by the laws of the
state, as then expounded by all the departments of its
government and administered in its courts of justice, its
validity and obligation cannot be impaired by any subsequent
act of the legislature of the state or decision of its
courts, altering the construction of the law;" and in
Gelpcke v. Dubuque, 1 Wall. 206, Swayne, J., quoted the
dictum of Taney, C. J., and declared it to be "the law of
this court."
(8) Walla Walla v. W. W. W. Co., 172 U.S. 1; St. P. G. L. Co.
v. St. Paul, 181 id. 142; Detroit v. D. C. S. R.. 184 id.
368.
(9) Williams v. Bruffy, 96 U.S. 176; Ford v. Surget, 97 id.
594; Stevens v. Griffith, Ill id. 48.
(10) L. W. Co. v. Easton, 121 U.S. 388, 391; Denny v. Bennett,
128 id. 489; Lake County v. Rollins, 130 id. 662; Pleasant
Township v. A. L. I. Co., 138 id. 67; Brown v. ;Smart, 145
id. 454; Bier v. McGehee, 148 (13) State Bank v. Knopp, 16
How. 369; 0. L. 1. & T. Co. v. Debolt, ibid. 416; Jefferson
Branch Bank v. Skelly, 1 Bl. 436; Bridge Proprietors v.
Hoboken Co., 1 Wall. 116; Delmas v. Ins. Co., 14 id. 661;
Wright v. Nagle, 101 U.S. 791; Willia ms v. Louisiana, 103
id. 637; L. & N. R. v. Palmes, 109 id. 244; Pleasant
Township v. A. L. 1. Co., 138 id. 67; Bryan v. Board of
Education, 1 51 id. 639; M. & 0. R. v. Tennessee, 153 id.
486; Shelby County v. Union & Planters' Bank, 161 id. 149;
Woodruff v. Mississippi, 162 id. 291; Douglas v. Kentucky,
168 id. 488; C., B. & Q. R. v. Nebraska, 170 id. 57;
McCullough v. Virginia, 172 id. 102; Walsh v. C., H. v. & A.
R., 176 id. 469; 1. C. R. v. Chicago, ibid. 646; H. & T. C.
R. v. Texas, 177 id. 66; Stearns v. Minnesota, 179 id. 223;
Board of Liquidation v. Louisiana, ibid. 622; F. W. Co. v.
Freeport City, 180 id. 587; St. P. G. L. Co. v. St. Paul,
181 id. 142; Wilson v. Standefer, 184 id. 399; cf. Wagonner
v. Flack, 188 id. 595. id. 137; P. I. Co. v. Tennessee, 161
id. 193; G. & S. 1. R. v. Hewes, 183 id. 66; Pinney v.
Nelson, ibid. 144; D. G. Co. v. U.S. G. Co., 187 id. 611;
0. W. Co. v. Oshkosh, 187 id. 437; Blackstone v. Miller, 188
id. 189. See also C., M. & St. P. Ry. v. Solan, 169 id. 133;
K. W. Co. v. Knoxville, 189 id. 434.
(11) 121 U.S. 388, 392.
(12) See also R. Co. v. Rock, 4 Wall. 177, 181; R. Co. v.
McClure, 10 id. 511, 515; Knox. v. Exchange Bank, 12 id.
379, 383; Delmas v. Ins. Co., 14 id. 661, 665; University v.
People, 99 U.S. 309, 319; C. L. I. Co. v. Needles, 113 id.
574; N. 0. W. W. v. L. S. Co., 125 id. 18; Kreiger v. Shelby
R., ibid. 39; H. Bridge Co. v. Henderson City, 141 id. 679;
St. P., M. & M. Ry. v. Todd County, 142 id. 282; Missouri v.
Harris, 144 id. 210; Wood v. Brady, 150 id. 18; C. L. Co. v.
Laidley, 159 id. 103; Hanford v. Davies, 163 id. 273; Turner
v. Wilkes County Comrs., 173 id. 461; Wilkes County v.
Coler, 180 id. 506; G. & S. 1. R. v. Hewes, 183 id. 66; N.
0. W. Co. v. Louisiana, 185 id. 336; N. M. B. & L. Assn. v.
Brahan, 193 id. 635.
(14) Sturges v. Crowninshield, 4 Wheat. 197. See also Bedford v.
E. B. & L. Assn., 181 U.S. 227, 241.
(15) Green v. Biddle, 8 Wheat. 1. But where a charter authorizing
the consolidation of railways was modified by a statute
prohibiting the consolidation of competing roads before such
consolidation had been attempted, the court said: "Where the
charter authorizes the company in sweeping terms to do
certain things which are unecessary to the main object of
the grant, and not directly and immediately within the
contemplation of the parties thereto, the power so
conferred, so long as it is unexecuted, is within the
control of the legislature and may be treated as a license,
and may be revoked, if a possible exercise of such power is
found to conflict with the interests of the public." "We
cannot recognize a vested right to do a manifest wrong: "
Pearsall v. CG. N. Ry., 161 U.S. 646, 673, 675. See also A.
Ry. v. New York, 176 id. 335, 345.
(16) And it may, of course, grant an additional remedy: N. 0. C.
& L. R. v. New Orleans, 157 U.S. 219 ; Wagonner v. Flack,
188 id. 595. See also Wilson v. Standefer, 184 id. 399.
(17) R. Co. v. Hecht, 95 U.S. 168; C. M. L. I. Co. v. Spratley,
172 ia. 602.
(18) Mason v. Haile, 12 Wheat. 370; Penniman's ('age, 103 U.S.
714.
(19) Gross v. U.S. Mtge. Co., 108 U.S. 477.
(20) Randall v. Kreiger, 23 Wall. 137.
(21) League v. De Young, 11 How. 185.
(22) Jackson v. Lamphire, 3 Pet. 280.
(23) Williamson v. Suydam, 6 Wall. 723.
(24) C. M. L. 1. Co. v. Cushman, 108 U.S. 51; Hooker v. Burr,
194 id. 415.
(25) Ewell v. Daggs, 108 U.S. 143.
(26) Gilfillan v. U. C. Co., 109 U.S. 401.
(27) Terry v. Anderson, 95 U.S. 628; Barrett v. Holmes, 102 id.
651; Koshkonong v. Burton, 104 id. 668; In re Brown, 135 id.
701; Wheeler v. Jackson, 137 id. 245. See also Wilson v.
Iseminger, 185 id. 55; 0. W. Co. v. Oshkosh, 187 id. 437.
(28) Vance v. Vance, 108 U.S. 514.
(29) Curtis v. Whitney, 13 Wall. 68.
(30) Louisiana v. New Orleans, 102 U.S. 203.
(31) O. W. Co. v. Oshkosh, 187 U.S. 437.
(32) Ochiltree v. R. Co., 21 Wall. 249.
(33) Blount v. Windley, 95 U.S. 173.
(34) Morley v. L. S. & M. S. Ry., 146 U.S. 162.
(35) Drehman v. Stifle, 8 Wall. 595.
(36) Guarantee Co. v. Board of Liquidation, 105 U.S. 622.
(37) Tennessee v. Sneed, 96 U.S. 69.
(38) Antoni v. Greenhow, 107 U. S. 769; Moore v. Greenhow, 114
id. 338.
(39) Van Hoffman v. Quincy, 4 Wall. 552.
(40) White v. Hart, 13 Wall. 646.
(41) Delmas v. Insurance Co., 14 Wall. 661.
(42) Effinger v. Kenney, 115 U. S. 566; W. & W. R. v. King, 91
id. 3.
(43) Pierce v. Carskadon, 16 Wall. 234.
(44) Walker v. Whitehead, 16 Wall. 314.
(45) Guinn v. Barry, 15 Wall. 610.
(46) Barnitz v. Beverly, 163 U. S. 118. See also Bradley v.
Lightcap, 195 id. 1; of. Hooker v. Burr, 194 id. 415.
(47) Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 id.
608; Gantly v. Ewing, 3 id. 707.
(48) Koshkonong v. Burton, 104 U.S. 668 ; cf. Morley v. L. S. &
M. S. Ry., 146 id. 162.
(49) Hawthorne v. Calef, 2 Wall. 10.
(50) Bryan v. Virginia, 135 U.S. 685.
(51) "Contract" is, as Field, J., said in Louisiana v. Mayor of
New Orleans, 09 U. S. 285, 288, " used in the Constitution
in its ordinary sense as signifying the agreement of two or
more minds for consideration proceeding from one to the
other to do or not to do certain acts." In Sturges v.
Crowninshield, 4 Wheat. 122, 197, Marshall, C. J., said: " A
contract is an agreement in which a party undertakes to do
or not to do a particular thing." Marshall, C. J., said, in
Fletcher v. Peek, 6 Cr. 87, 136: "A contract is a compact
between two or more parties, and is either executory or
executed. An executory contract is one in which a party
binds himself to do, or not to do, a particular thing....A
contract executed is one in which the object of contract is
performed, and this, says Blackstone, differs in nothing
from a grant....Since then, in fact, a grant is a contract
executed, the obligation of which still continues, and since
the Constitution uses the general term 'contracts,' without
distinguishing between those which are executory and those
which are executed, it must be construed to comprehend the
latter as well as the former." In Dartmouth College v.
Woodward, 4 Wheat. 629, Marshall, C. J., said: "The
provision of the Constitution never has been understood to
embrace other contracts than those which respect property or
some object of value and confer rights which may be asserted
in a court of justice." Daniel, J., said, in Butler v.
Pennsylvania, 10 How. 402, 416: "The contracts designed to
be protected ...are contracts by which perfect, certain,
definite, fixed, private rights of property are vested."
(52) Sturges v. Crowninshield, 4 Wheat. 122; McMillan v. McNeill,
ibid. 209; Farmers & Mechanics' Bank v. Smith, 6 id. 131;
Ogden v. Saunders, 12 id. 213; Boyle v. Zacharie, 6 Pet.
635; Suydam v. Broadnax, 14 id. 67; Cook v. Moffat, 5 How.
295; Baldwin v. Hale, 1 Wall. 223.
(53) State Tax on Foreign-held Bonds Case, 15 Wall. 300.
(54) County of Moultrie v. Rockingham T.C.S. Bank, 92 U.S. 631;
Mobile v. Watson, 116 id. 289. But see Meriwether v.
Garrett,102 id. 472.
(55) Fisk v. Jefferson Police Jury, 116 U.S. 131.
(56) Blount v. Windley, 95 U.S. 173; Memphis v. U.S., 97 id. 293;
Wolff v. New Orleans, 103 id. 358; Louisiana v. Pilsbury,
105 id 278; Ralls County Court v. U.S. ifid. 733; Nelson v.
St. Martin's Parish, 111 id. 716; Mobile v. Watson, 116 id.
289; cf. Morley v. L.S.& M.S. Ry., 146 id. 162.
(57) Louisiana v. New Orleans, 109 U.S. 285; Freeland v.
Williams, 131 id. 405.
(58) Hunt v. Hunt, 131 U.S. clxv; Maynard v. Hill, 125 id. 1990.
(59) Aspinwall v. Daviess County, 22 How. 364; Morgan v.
Louisiana, 93 U.S. 217; Wadsworth v. Supervisors, 102 id.
534; Norton v. Board of Comrs. of Brownsville, 129 id. 479;
Lake County v. Rollins, 130 id. 662; Lake County v. Graham,
ibid. 674; Campbell v. Wade, 132 id. 34; Pleasant Township
v. A. L. 1. Co., 138 id. 67; New Orleans v. N. 0. W. W., 142
id. 79; H. G. L. Co. v. Hamilton City, 146 id. 258; 1. C. R.
v. Illinois, ibid. 387; Bier v. McGehee, 148 id. 137;
Citizens' S. & L. Assn., v. Perry County, 156 id. 692;
Woodruff v. Mississippi, 162 id. 291; C. M. L. 1. Co. v.
Spratley, 172 id. 602 ; Los Angeles v. L. A. W. Co., 177 id.
558; Weber v. Rogan, 188 id. 10; Zane v. Hamilton County,
189 id. 370; U. R. v. City of New York, 193 id. 416; cf. C.,
M. & St. P. Ry. v. Solan, 169 id. 133; Gunnison County
Comrs. v. Rollins, 173 id. 255; H. & T. C. R. v. Texas, 177
id. 66; Waite v. Santa Cruz, 184 id.
(60) Aspinwall Daviess County, 22 How. 364.
(61) Wadsworth v. Supervisors, 102 U.S.534; cf. Campbell v. Wade,
132 id. 34.
(62) Bier v. McGehee, 148 U.S. 137. S. 479; Pleasant
(63) Norton v. Board of Comrs. of Brownsville, 129 U.S. 479;
Pleasant Township v. A. L. I. Co., 138 id. 67.
(64) Lake County v. Rollins, 130 County, 189 id. 370; cf.
Gunnison County Comrs. v. Rollins, 173 id. 255; H.& T. C. R.
v. Texas, 177 id. 66.
(65) I. C. R. v. Illinois, 146 U.S. 387, 460. Two justices took
no part in the decision and three justices dissented. See
also I. C. R. v. Illinois, 184 id. 77; M. T. Co. v. Mobile,
187 id 479; In Pearsall v. G.N.Ry., 161 id. 646, where a
charter authorizing the consolidation of railways was
modified by a statute prohibiting the consolidation of
competing roads, before any such consolidation had been
attempted, the court said: "We cannot recognize a vested
right to do a manifest wrong." And see L.& N.R. v. Kentucky,
183 id. 503, 518.
(66) People v. Commissioners of Taxes, 94 U.S. 415.
(67) Trask v. Maguire, 18 Wall. 391; Morgan v. Louisiana, 93 U.
S. 217; Shields v. Ohio, 95 id. 319; R. Cos. v. Gaines, 97
id. 697; K. & W. R. v. Missouri, 152 id. 301; P. I. Co. v.
Tennessee, 161 id. 193; G. & S. 1. R. v. Hewes, 183 id. 66;
cf. Lake County v. Graham, 130 id. 674.
(68) 4 Wheat. 122.
(69) 4 Wheat. 209.
(70) 6 Wheat. 131.
(71) 12 Wheat. 213.
(72) 12 Wheat. 369, note.
(73) 6 pet. 643.
(74) 12 Wheat. 213, 358.
(75) P. 635.
(76) 14 Pet. 67.
(77) 5 How. 295.
(78) 1 Wall. 223.
(79) Sturges v. Crowninshield, 4 Wheat. 122; F. & M. Bank v.
Smith, 6 d. 131.
(80) McMillan v. McNeill, 4 Wheat. 209; Cook v. Moffat, 5 How.
295.
(81) Ogden v. Saunders, 12 Wheat. 213; Shaw v. Robbins, ibid.
369, note. See also Denny v. Bennett, 128 U.S. 489.
(82) Baldwin v. Hale, 1 Wall. 223.
(83) Blount v. Windley, 95 U.S. 173.
(84) Memphis v. U. S., 97 U.S. 293; Wolff v. New Orleans, 103
id. 358; Louisiana v. Pilsbury, 105 id 278; Ralls county
court v. U.S. , ibid. 733; Nelson v. St. Martin's Parish,
Ill id. 716; Mobile v. Watson, 116 id. 289; Scotland County
Court v. U.S. , 140 id. 41.
(85) Morley v. L. S. & M. S. Ry., 146 U.S. 162.
(86) Louisiana v. New Orleans, 109 U. S. 285; Freeland v.
Williams, 131 id. 405.
(87) Fisk v. Jefferson Police Jury, 116 U.S. 131.
(88) County of Moultrie v. Rockingham T. C. S. Bank, 92 U.S.
631.
(89) R. Co. v. Pale-oner, 103 U.S. 821.
(90) Gilman v. Sheboygan, 2 Bl. 510.
(91) Mobile v. Watson, 116 U. S. 289. But see Meriwether v.
Garrett, 102 id. 472.
(92) Memphis v. U.S., 97 U.S. 293; Wolff v. New Orleans, 103 id.
358; Ralls County Court v. U.S., 105 id. 733; Nelson v. St.
Martin's Parish, 111 id. 716; Seibert v. Lewis, 122 id. 284;
Scotland County Court v. U.S. , 140 id. 41.
(93) Louisiana v. Pilsbury, 105 U.S. 278.
(94) Ralls County Court v. U.S. 105
(96) Madison Papers, 5 Elliot's Debates, 546.
(97) Hist. of the Constitution, 214.
(98) G. Morris, by Sparks, III, 323.
(99) Gilpin,1552, 1581.
(100) Works of Hamilton, Lodge's Edition, Vol. II, p. IL47.
(101) No. XLIV, Lodge's Edition.
(102) 4 Wheat.205.
(103) 6 Cr. 87.
(104) Davis v. Gray, 16 Wall. 203; H. & T. C. Ry. v. Texas, 170
U.S. 243; cf. A. Ry. v. New York, 176 id. 335.
(105) Green v. Biddle, 8 Wheat. 1.
(106) Terrett v. Taylor, 9 Cr. 43.
(107) 7 Cr.164
(108) Jefferson Branch Bank v. Skelly, 1 Bl. 436; Chicago v.
Sheldon, 9 Wall. 50; W. & R. R. v. Reid, 13 id. 264; R. & G.
R. v. Reid, ibid. 269; Humphrey v. Pegues, 16 id. 244; P. R.
v. Maguire, 20 id. 36; New Jersev v. Yard, 95 U.S. 104;
University v. People, 99 id. 309; Asylum v. New Orleans, 105
id. 362; W. & W. R. v. Alsbrook, 146 id. 279; M. & 0. R. v.
Tennessee, 153 id. 486; Shelby County v. Union & Planters'
Bank, 161 id. 149; Stearns v. Minnesota, 179 id. 223;
Citizens' Bank v. Parker, 192 id. 73; ef. G. & S. I. R. v.
Hewes, 183 id. 66.
(109) W.& R.R. v. Reid, 13 Wall. 264; C. R. & B. Co. v. Wright,
164 U.S. 327.
(110) Farrington v. Tennessee, 95 U.S. 679; Bank of Commerce v.
Tennessee, 161 id. 134 , 163 id. 416; Shelby County v. Union
& Planters' Bank, 161 i& 149.
(111) P. R. v. Maguire, 20 Wall 36.
(112) R. & G. R. v. Reid, 13 Wall. 269.
(113) New Jersey v. Yard, 95 U.S. 104.
(114) Chicago v. Sheldon, 9 Wall. 50.
(115) University v. People, 99 U.S. 309; Asylum v. New Orleans,
105 id. 362.
(116) C. Ry. v. C. S. R., 166 U.S. 557.
(117) University v. People, 99 U.S. 309; Asylum v. New Orleans,
105 id. 362.
(118) Humphrey v. Pegues, 16 Wall.244.
(119) Salt Co. v. East Saginaw, 13 Wall. 373; Welch v. Cook, 97
U.S. 5 W. & M. Ry. v. Powers, I 91 id. 379.
(120) Christ Church v. Philadelphia, 24 How. 300; Grand Lodge v.
Orleans, 166 U.S. 143.
(121) R. COL v. Gaines, 97 U.S. 697; G. & S. 1. R. Co. v. Hewes,
183 53; N. C. Ry. v. Mary 66; cf. Stearns v. Minnesota, 179
id. 223, 2 187 id. 258.
(122) Trask v. Maguire, 18 Wall. 391; Morgan v. Louisiana 93 U.
S. 217; People v. Cook, 148id. 397. See also Memphis city
Bank v. Tennessee, 161 id.186;P. Ins. Co. v. Tennessee,
ibid. 193.
(123) Shields v. Ohio, (95) U.S. 319.
(124) New Jersey v. Yard, 95 U.S. 104.
(125) Greenwood v. Freight Co., 105 U. S. 13; Tomlinson v.
Jessup, 15 Wall. 454.
(126) R. Co. v. Georgia, 98 U.S. 359.
(127) Close v. Glenwood Cemetery, 107 U.S. 466; S. C. S. Ry. v.
Sioux City, 138 id. 98; L. W. Co. v. Clark, 143 id. 1; H. G.
L. Co. v. Hamilton City, 146 id. 258; People v. Cook, 148
id. 397; N. Y. & N. E. IR. v. Bristol, 151 id. 556; Bryan v.
Board of Education, ibid. 639; C. Ry. v. C. S. R. 166 id.
557; Covington v. Kentucky, 173 id. 231; Citizens' Savings
Bank v. Owensboro, ibid. 636; Looker v. Maynard, 179 id. 46;
G. & S. 1. R. v. Hewes, 183 id. 66; B. W. S. Co. v. Mobile,
186 id. 212; cf. Stearns v. Minnesota, 179 id. 223, 239. See
also Pearsall v. G. N. Ry., 161 id. 646; N. C. Ry. v.
Maryland, 187 id. 258; Wright v. M. M. L. I. Co., 193 id.
657.
(128) 2 Mass. 146.
(129) 105 U.S. 13, 19.
(130) Pennsylvania college Cases, 13 wall. 19o; miller v. State,
15 id. 478; Holyoke Company v. Lymarn, ibid. 500.
(131) Tucker v. Ferguson, 22 Wall. 527; R. Cos. v. Gaines, 97 U.
S. 697; RY. Co. v. Philadelphia, 101 id. 528; Picard v. E.
T., v. & G. R., 130 id. 637; Y. & M. v. R. v. Thomas, 132
id. 174; W. & W. R. v. Albrook, 146 id. 279; W. & St. P. L.
Co. v. Minnesota, 159 id., 526; P. F. & M. I. Co. v.
Tennessee, 161 id. 174; Central R. & B. Co. v. Wright, 164
id. 327; Pord v. D. & P. L. Co., ibid. 662; Citizens'
Savings Bank v. Owensboro, 173 id. 636; Wells v. Savannah,
181 id. 531; Orr v. Gilman, 183 id. 278; Chicago Theological
Seminary v. Illinois, 188 id. 662; of. Citizens, Bank v.
Parker, 192 id. 73.
(132) Tucker v. Ferguson, 22 Wall. 527. See also Ford v. D. & P.
L. Co., 164 U.S. 662.
(133) W. P. Co. v. East St. Louis, 107 U.S. 365,
(134) Ry. Co. v. Philadelphia, 101 U.S. 528.
(135) Ford v. D. & P. L. Co., 164 U.S. 662.
(136) New Orleans v. citizens' Bank, 167 U.S. 371; cf. Shelby
County v. Union & Planters' Bank, 161 id. 149.
(137) W. & St. P. L. Co. v. Minnesota, 159 U.S. 526.
(138) Humphrey v. Pegues, 16 Wall. 244.
(139) Binghamton Bridge, 3 Wall. 51.
(140) R. Cos. v. Gaines, 97 U.S. 697. See also G. & S. I. R. v.
Hewes, 183
(141) Tomlinson v. Branach, 15 Wall. 460; W. & W. R. v. Alsbrook,
146 U. S. 279. See also P. G. & C. Co. v. Chicago, 194 id.
1.
(142) Picard v. E. T., v. & G. R., 130 U.S. 637; People v. Cook,
148 id. 397; N. C. Ry. v. Maryland, 187 id. 258. See aw N. &
W. R. v. Pendleton, 156 id. 667; C. & L. T. R. Co. v.
Sandford, 164 id. 578.
(143) Bridge Proprietors v. Hoboken Co., 1 Wall. 116; Binghamton
Bridge, 3 id. 51; cf. Williams v. Wingo, 177 U.S. 601.
(144) Bridge Proprietors v. Hoboken Co., 1 Wall.116.
(145) Planters' Bank v. Sharp, 6 How. 301.
(146) Hall v. Wisconsin, 103 U.S. 5; cf. Missouri v. Walker, 125
id. 339.
(147) N. 0. W. W. v. Rivers, 115 U.S. 674; St. T. W. W. v. N. 0.
W. W ., 120 id. 64; Walla Walla v. W. W. W. Co., 172 id. 1.
See also Los Angeles v. L. A. W. Co., 177 id. 558; F. W. Co.
v. Freeport, 180 id. 587; S. W. W. Co. v. Skaneateles, 184
id. 354.
(148) N.O.G. Co. v. L.L.Co., 115 U.S. 650; L.G.Co. v. C.G.Co.,
ibid. 683.
(149) Hartman v. Greenbow, 102 U.S. 672; Virginia Coupon Cases,
114 id. 270; Royall v. Virginia, 116 id. 572, 121 id. 102;
McGahey v. Virginia, 135 id. 662; McCullough v. Virginia,
172 id. 102.
(150) Furman v. Nichol, 8 Wall. 44; Keith v. Clark, 97 U.S. 454.
(151) Woodruff v. Trapnall, 10 How. 190; Paup v. Drew, ibid. 218;
Trigg v. Drew, ibid. 224.
(152) Murray v. Charleston, 96 U.S. 432.
(153) Curran v. Arkansas, 15 How. 304; Barings v. Dabney, 19
Wall. 1.
(154) Green v. Biddle, 8 Wheat. 1; C. & C. Bridge Co. Kentucky,
154
(155) Maryland v. B. & 0. R., 3 How. 534; East Hartford v. H.
Bridge Co., 10 id. 511; R. Co. v. Ellerman, 105 U.S. 166;
New Orleans v. N. 0. W. W., 142 id. 79; cf. Essex Pub. Road
Board v. Skinkle, 140 id. 334.
(156) Maryland v. B. & 0. R., 3 How. 534.
(157) R. Co. v. Ellerman, 105 U.S. 166.
(158) Williamson v. New Jersey, 130 U.S. 189.
(159) 4 Wheat. 518.
(160) Wheat. pp.628, 629.
(161) 12 Wheat. 333.
(162) 4 Pet. 514.
(163) 109 U.S. 398.
(164) 20 Wall. 46.
(165) 22 Wall. 215.
(166) 22 Wall. 527.
(167) License Tax Cases, 5 Wall. 462; Delaware R. Tax, 18 id.
206; Eri Ry. v. Pennsylvania, 21 id. 492; Home Ins. Co. v.
Augusta, 93 U.S. 116 S. C. S. Ry. v. Sioux City, 138 id.
98; N. 0. C. & L. R. v. New Orleans 143 id. 192; W. & W. R.
v. Alsbrook, 146 id. 279; Shelby Co. v. Union Planters'
Bank, 161 id. 149; New Orleans v. Citizens' Bank, 167 id.
371.
(168) People v. Cook, 148 U.S. 39 7; Picard v. East T., v. & G.
R., 130 id. 637; K. & W. R. v. Missouri, 152 id. 301; N. C.
Ry. v. Maryland, 187 id 258. Bee also Shields v. Ohio, 95
id. 319; St. L. & S. F. Ry. v. Gill, 156 id 649; N. & W. R.
v. Pendleton, ibid. 667; P. F. & M. 1. Co. v. Tennessee 161
id. 174; Memphis City Bank v. Tennessee, ibid. 186; P. I.
Co. v. Tennessee, ibid. 193; C. & L. T. R. Co. v. Sandford,
164 id. 578; G. R. & I. Ry. v. Osborn, 193 id. 17.
(169) Rice v. R. Co., 1 Bl. 358; Charles River Bridge v. Warren
Bridge, 11 Pet. 544; Mills v. St. Clair County, 8 How. 581;
Perrine v. C. & D. C. Co., 9 id. 172; R. & P. R. v. L. R.,
13 id. 81; 0. L. I. & T. Co. v. Debolt, 16 id. 416; Jefferso
Branch Bank v. Skelly, 1 Bl. 436; The Binghamton Bridge, 3
Wall. 51, 75; G. R. & B. Co. v. Smith, 128 U.S. 174; Stein
v. B. W. S. Co., 141 id. 6 7; H. G. L. Co. v. Hamilton City,
146 id. 258; M. & St. L. Ry. v. Gardner, 177 id. 332; L. &
N. R. v. Kentucky, 183 id. 503; Joplin v. S. M. L. Co., 191
id. 150; Stanislaus County v. S. J. & K. R. C. & I. Co., 192
id. 201; Shaw v. Covington, 194 id. 5 93. See also Owensboro
v. 0. W. S. Co., 191 id. 358.
(170) Mumma v. The Potomac Co., 8 Pet. 281, 286; C. L. 1. Co. v.
Needles, 113 U.S. 574, 584.
(171) Panning v. Gregoire, 16 How. 524; Turnpike Co. v. State, 3
Wall. 210; Wright v. Nagle, 101 U.S. 791; W. & B. Bridge
Co. v. W. B. Co., 138 id. 287; Williams v. Wingo, 177 id.
601.
(172) Stein v. B. W. S. Co., 141 U.S. 67.
(173) Joplin v. S. M. L. Co., 191 U.S. 150. See also N. W. Co.
v. Newburyport, 193 id. 561.
(174) Shields v. Ohio, 95 U.S. 319; St. L. & S. F. Ry. v. Gill,
156 id. 6 49;
(175) P. G. & C. Co. v. Chicago, 194 U.S. 1.
(176) C., B. & Q. R. v. Iowa, 94 U.S. 155; Peik v. C. & N. W.
Ry., ibid. 164; W. & St. P. R. v. Blake, ibid. 180; Boyd v.
Alabama, ibid. 645; Beer Co. v. Massachusetts, 97 id. 25;
Fertilizing Co. v. Hyde Park, ibid. 659; Ruggles v.
Illinois, 108 id. 526; Stone v. P. L. & T. Co., 116 id. 307;
G. R. & B. Co. v. Smith, 128 id. 174; P. R. v. Miller, 132
id. 75; C., M. & St. P. Ry. v. Minnesota, 134 id. 418; W. &
B. Bridge Co. v. W. Bridge Co., 138 id. 287; New York v.
Squire, 145 id. 175; M. & St. L. Ry. v. Emmons, 149 id. 364;
E. I. Co. v. Ohio, 153 id. 446; N. & W. R. v. Pendleton, 156
id. 667; Pearsall v. G. N. Ry., 161 id. 646; L. & N. R. v.
Kentucky, ibid. 677; St. L. & S. F. Ry. v. Mathews, 165 id.
1; C., B. &. Q. R. v. Chicago, 166 id. 226; L. I. W. Co. v.
Brooklyn, ibid. 685; W.R. v. Defiance, 167 id. 88; C., B. &
Q. R. v. Nebraska, 170 id. 57; A. Ry. v. New York, 176 id.
335; F.W.Co. v. Freeport, 180 id. 587; K. 1. Co. v.
Harbison, 183 id. 13; L. & N. R. v. Kentucky, ibid. 503;
Stanislaus County v. S. J. & K. R. C. & 1. Co., 192 id. 201;
cf. N. Y., L. E. & W. R. v. Pennsylvania, 153 id. 628; C. M.
L. 1. Co. v. Spratley, 172 id. 602.
(177) E. 1. Co. v. Ohio, 153 U.S. 446.
(178) R. Co. v. Hamersley, 104 U.S. 1.
(179) M. & St. L. Ry. v. Tennessee, 149 U.S. 364.
(180) St. L. & S. F. Ry. v. Mathews, 165 U.S. 1.
(181) P. R. v. Mille 132 U.S. 75.
(182) Baltimore v. B. T. Co., 166 U.S. 673; W. R. v. Defiance,
167 id. 88. See also C., B. & Q. P.. v. Nebraska, 170 id.
57; L. G. L. Co. v. Murphy, ibid. 78.
(183) Pearsall v. G. N. Ry., 161 U.S. 646.
(184) C., B. & Q. R. v. Iowa, 94 U.S. 155; Ruggles v. Illinois,
109 id. 526; G. R. & B. Co. v. Smith, 128 id. 174; M. E. Ry.
v. Minnesota, 134 id. 467; L. & N. R. v. Kentucky, 183 id.
503. In Reagan v. F. L. & T. Co., 154 id. 362, 393, after
admitting that a state has the general power to regulate
rates, the court suggested, but did not decide, that 'there
might be an implied grant to the railway of the right to
reasonable tolls.
(185) Stone v. F. L. & T. Co., 116 U.S. 307; Stone v. 1. C. R.,
ibid. 347; C., M. & St. P. Ry. v. Minnesota, 134 id. 418.
See also Owensboro v. 0. W. Co., 191 id. 358.
(186) S. v. W. W. v. Schottler, 110 U.S. 347; cf. F. W. Co. v.
Freeport,
(187) Stanislaus County v. S. J. & K. R. C. & I. Co., 192 U.S.
201. In this case, however, the state constitution had
reserved to the legislature the power to amend or repeal the
law in question.
(188) Even an express grant of exemption from regulation does not
by implication extend to a purchaser from the grantee:
Shields v. Ohio, 95 U.S. 319; St. L. & S. F. Ry. v. Gill,
156 id. 649; N. & W. R v. Pendleton, ibid. 667; C. & L. T.
R. Co. v. Sandford, 164 id. 578; G. R. & I. Ry. v. Osborn,
193 id. 17; and see P. G. & C. Co. v. Chicago, 194 id. 1.
(189) Los Angeles v. L. A. W. Co., 177 U.S. 558; cf. K. W. Co.
v. Knoxville, 189 id. 434.
(190) Detroit v. D. C. S. Ry., 184 U.S. 368; Cleveland v. C. C.
Ry., 194 id. 517; Cleveland v. C. E. Ry., ibid. 538; of. F.
W. Co. v. Freeport, 180 id.587; L. & N. R. v. Kentucky, 183
id. 503, 518.
(191) C., B. & Q. R. v. Nebraska., 170 U.S. 57.
(192) Fertilizing Co. v. Hyde Park, 97 U.S. 659.
(193) Beer Co. v. M usetts, 97 U.S. 25.
(194) Stone v. Mppi, 101 U.S. 814; Douglas v. Kentucky, 168 id.
488.
(195) Butchers' Union v. C. C. Co., Ill U.S. 746.
(196) 4 Wheat. 629.
(197) Church v. Kelsey, 121 U.S. 282.
(198) Newton v. Commissioners, 100 U.S. 548.
(199) U.S. v. Memphis, 97 U.S. 284.
(200) New Orleans v. Morris, 105 U.S. 600.
(201) Amy v. Shelby County, 114 U.S. 387.
(202) Butler v. Pennsylvania, 10 How. 402; cf. Crenshaw v. U.S.,
134 U.S. 99; Pennie v. Reis, 132 id. 464.
(203) Fisk v. Jefferson Police Jury, 116 U.S. 131.
(204) Head v. University, 19 Wall. 526.
(205) Beers v. Arkansas, 20 How. 527; Bank of Washington v.
Arkansas, ibid. 530.
(206) R. Co. v. Tennessee, 10 1 U. S. 337; R. Co. v. Alabama,
ibid. 832; Baltzer v. North Carolina, 1 61 id. 240.
(207) 123 U.S. 504.
(208) Louisiana v. New Orleans, 102 U.S. 203.
(209) Beer v. Arkansas 20 How. 527; R. Co. v. Tennessee, 101 U.
S. 337.
(210) 134 U.S. 1. See also McGahey v. Virginia, 135 id. 662.
CHAPTER VI:
EX POST FACTO LAWS AND BILLS OF ATTAINDER
77. The constitutional provisions.
78. The distinction between retrospective and ex post facto
laws.
79. Ex post facto laws defined.
80. Illustrations of ex post facto Laws.
81. Illustrations of laws which are not ex post facto.
82. Bills of attainder and bills of pains and penalties.
The constitutional provisions.
77. Section 10 of Article I of the Constitution declares that
"no state shall ... pass any bill of attainder or ex post facto
law." Section 9 of Article I of the Constitution, restricting the
powers of Congress, declares that no bill of attainder or ex post
facto law shall be passed."
The distinction between retrospective and ex post facto laws.
78. Ex post facto laws relate to criminal, and not to civil,
procedure. (1) They are necessarily retrospective, but all
retrospective laws are not ex post facto. (2) State laws which
operate retrospectively, or which divest antecedently vested
rights of property, are not prohibited by the Constitution of the
United States, if they are not ex post facto laws, and if they do
not impair the obligation of contracts. (3) A state legislature,
unless restrained by the constitution of the state, may,
therefore, enact statutes setting aside a decree of a court of
probate, refusing to allow probate of a will, and granting a
rehearing by the court of probate with liberty of appeal
therefrom, after the time limited by existing laws for an appeal
has passed; (4) declaring that the relation of landlord and
tenant exists between parties as to whom the courts of the state
have decided that that relation does not exist; (5) curing
defective acknowledgments of deeds by femes covert; (6)
construing by a declaratory statute, after the death of a
decedent, existing tax laws so as to subject to a collateral
inheritance tax the distributive shares of nonresident
distributees; (7) directing a county court to set aside an
inquisition condemning certain land for the use of a railway and
t o order a new inquisition; (8) directing the imposition of a
tax according to an assessment theretofore made; (9) authorizing
the sale of lands on which the state has a lien for debts due to
it; (10) and establishing new remedies for the collection of
taxes already delinquent. (11) Upon the same principle, Congress
having passed an act for the admission of a territory as a state,
and having in that act omitted to provide for the disposal of
causes pending in the Supreme Court of the United States on
appeal from the territorial courts, may by a subsequent act
properly make provision for such causes, for such legislation is
remedial; (12) and it may provide for a review of the actions of
a commission created by it, by a transfer of its proceedings and
decisions to judicial tribunals for examination and determination
de novo. (13) So also Congress may by statute impose a tax
retrospectively. (14)
Ex Post facto laws defined.
79. In Fletcher v. Peck, (15) in Marshall, C. J., defines an Ex
Post facto law to be' one "which renders an act punishable in a
manner in which it was not punishable when it was committed." in
Cummings v. Missouri, (16) Field, J., defines an ex post facto
law, as one which imposes a punishment for an act which was not
punishable at the time it was committed; or imposes additional
punishment to that then prescribed; or changes the rules of
evidence by which less or different testimony is sufficient to
convict than was required." In Calder v. Bull, (17) Chase, J.,
classified ex post facto laws as follows: "first, those that make
an action, done before the passing of a law, and which was
innocent when done, criminal, and punish such action; second,
those that aggravate a crime, or make it greater than it was when
committed; third, those that change the punishment and inflict
greater punishment than the law annexed to the crime when
committed; and, fourth, those that alter the legal rules of
evidence and receive less or different testimony to convict the
offender than that required at the time of the commission of the
offense." That classification has been repeatedly quoted with
approval. (18)
Illustrations of ex post facto laws.
80. Laws have been held to be ex post facto, which, after the
commission of an act, alter the situation of the accused to his
disadvantage, as, for instance, by providing that the plea of
autrefois convict should not at a second trial be a defense in
the case of a prisoner convicted of murder in the second degree
under an indictment charging murder in the first degree, the law
having been at the time of the commission of the crime that such
a plea was a defense; (19) or by requiring a clergyman, (20) or a
lawyer (21) as a condition precedent to the practice of his
profession, to take an oath that he has not done an act, for the
doing of which, when done, deprivation of office was not a legal
penalty; or by requiring one who applies to a court to open a
judgment rendered against him in absentia, to take oath, as a
condition precedent to his obtaining the desired relief, that he
has not done an act for the doing of which the deprivation of the
right to sue in courts of justice was not by law antecedently
imposed as a penalty; (22) or by adding to the death penalty for
murders already committed, the withholding from the convict of
all knowledge as to the date of his execution and the keeping of
him in solitary confinement until that time; (23) or by reducing
from twelve to eight the number of jurors necessary for the trial
of felonies committed before the enactment of the law. (24) In
the case last cited it was pointed out that while, as a general
rule, the accused has no vested rights in particular modes of
procedure, yet he cannot be deprived of any right that was
regarded, at the time of the adoption of the Constitution, as
vital for the protection of life and liberty, and which he
enjoyed at the time of the commission of the offense charged
against him. (25) So also, Congress cannot provide, by statute,
that an act, which is not an offense against the law at the time
of its doing, may become such by a subsequent independent act
with which it has no necessary connection; as, for instance, that
subsequent bankruptcy, either voluntary or involuntary, shall
render criminal and punishable by imprisonment the obtaining of
goods with intent to defraud at any time within three months
before the commission of the act of bankruptcy. (26)
Illustrations of laws which are not ex post facto.
81. On the other hand, a law changing the venue in a criminal
case, though passed subsequently to the Commission of the
offense, is not ex post facto; (27) nor is a law open to that
objection, which, though passed after the commission of an
offense, requires that the persons selected for jury service
shall possess good intelligence, sound judgment and fair
character, (28) or which enlarges the class of persons who may be
competent to testify as witnesses at the trial, as, for instance,
by repealing a statutory prohibition of the admission of the
testimony of convicted felons, (29) or which provides that
"comparison of a disputed writing with any writing proved to the
satisfaction of the judge to be genuine, shall be permitted to be
made by witnesses, and such writings and the evidence of
witnesses respecting the same may be submitted to the court and
jury as evidence of the genuineness or otherwise of the writing
in dispute," (30) or which allows to the prosecution an appeal
from the superior to the supreme court of the state, (31) or
which lessens the number of judges in the appellate court, (32)
or which limits the number of spectators at executions for
murder; (33) nor is a law ex post facto which denies the
exercise of the right of franchise to bigamists, or polygamists,
for "the disfranchisement operates upon the existing state and
condition of the person, and not upon a past offense;" (34) nor
is a law unconstitutional which prohibits the continuance of the
practice of medicine by those who do not register them selves in
accordance with its provisions, (35) or which excludes from the
practice of medicine those who have been convicted of felonies
prior to its enactment; (36) nor can constitutional objection be
raised to a law which provides that whoever has been twice
convicted of crime shall, upon conviction of a felon y committed
after the passage of the act, be deemed to be an habitual
criminal, and be punished by imprisonment for twenty-five years.
(37) While a law which endeavors to reach acts already committed
and which provides a like punishment for the same act in the
future is void in so far as it is retrospective, it is, however,
valid as to offenses which are committed after its passage. (38)
Bills of attainder and bills of pains and penalties.
82. A bill of attainder is defined by Field, J., in Cummings v.
Missouri, (39) as "a legislative act which inflicts punishment
without a judicial trial, and he adds, "If the punishment be less
than death, the act is termed a bill of pains and penalties.
Within the meaning of the Constitution, bills of attainder
include bills of pains and penalties " It has been held that a
state constitution requiring clergymen, as a condition precedent
to the exercise of their profession, to take oath that they had
not committed certain designated acts, some of which were at the
time offenses subject to legal penalties, and others of which
were innocent acts, (40) and that a state statute requiring one
who applied to a court to open a judgment rendered against him in
absentia, to take oath that he had not committed certain
designated public offenses, (41) and that an act of Congress
requiring a lawyer, as a condition precedent to the exercise of
his profession, to take an oath that he had not voluntarily borne
arms against the United States, etc., (42) constituted in each
case a bill of pains and penalties and was, therefore, subject to
the constitutional prohibition against bills of attainder,
inasmuch as, by legislative action, and without judicial
investigation, the statute imposed a punishment for an act done
before the enactment of the statute, the oath being offered to
the party incriminated as a means of compelling an admission of
guilt.
Footnotes:
(1) Calder v. Bull, 3 Dall. 386; Watson v. Mercer, 8 Pet. 88,
110; Carpenter v. Pennsylvania, 17 How. 456; League v.
Texas, 184 U.S. 156.
(2) Calder v. Bull, 3 Dall. 386.
(3) Calder v. Bull, 3 Dall.386; Fletcher v. Peck, 6 Cr.138;Ogden
v. Saunders, 12 Wheat. 266; 'Satterlee v. Matthewson, 2 Pet.
380; Watson v. Mercer, 8 Pet. 88, 110; Carpenter v.
Pennsylvania, 17 How. 456; B. & S. R. v. Nesbit, 10 How.
395; Livingston v. Moore, 7 Pet. 469; League v. Texas, 184
U.S. 156.
(4) Calder v. Bull, 3 Dall. 386.
(5) Satterlee v. Matthewson, 2 Pet. 380.
(6) Watson v. Mercer, 8 Pet. 88.
(7) Carpenter v. Pennsylvania, 17 How. 456.
(8) B. & S. R. v. Nesbit, 10 How. 395.
(9) Locke v. New Orleaas, 4 Wall. 172.
(10) Livingston v. Moore, 7 Pet. 469.
(11) League v. Texas, 184 U.S. 156.
(12) Freeborn v. Smith, 2 Wall. 160.
(13) Stephens v. Cherokee Nation, 174 U.S. 445.
(14) Stockdale v. 1. Cos., 20 Wall. 323.
(15) 6 Cr. 138.
(16) 4 Wall. 325.
(17) 3 Wall. 386.
(18) Kring v. Missouri, 107 U. S. 221; Duncan v. Missouri, 152
id. 377; Gibson v. Mississippi, 162 id. 565; Mallett v.
North Carolina, 181 id. 589.
(19) Kring v. Missouri, 107 U.S. 221.
(20) Cummings v. Missouri, 4 Wall. 277.
(21) Ex parte Garland, 4 Wall. 333. But see Hawker v. New York,
170 U.S. 189.
(22) Pierce v. Carskadon, 16 Wall. 234.
(23) Medley, Petitioner, 134 U.S. 160.
(24) Thompson v. Utah 170 U.S. 343.
(25) P. 352.
(26) U.S. v. Fox, 95 U.S. 670.
(27) Gut v. The State, 9 Wall. 35 ; Cook v. U.S. , 138 U.S. 157.
(28) Gibson v. Mississippi, 162 U.S. 565.
(29) Hopt v. Utah, 110 U.S. 574.
(30) Thompson v. Missouri, 171 U.S. 380.
(31) Mallett v. North Carolina, 181 U.S. 589.
(32) Duncan v. Missouri, 152 U.S. 377.
(33) Holden v. Minnesota, 137 U.S. 483.
(34) Murphy v. Ramsey, 114 U.S. 15.
(35) Reetz v. Michigan, 188 U.S. 505.
(36) Hawker v. New York, 170 U.S. 189.
(37) McDonald v. Massachusetts, 180 U.S. 311.
(38) Jaehne v. New York, 128 U.S. 189.
(40) Cummings v. Missouri, 4 Wall. 277.
(41) Pierce v. Carskadon, 16 Wall. 234.
(42) Ex parte Garland, 4 Wall. 333.
CHAPTER VII:
THE PROHIBITION OF STATE BILLS OF CREDIT
83. Bills of credit defined.
84. What axe, and what awe not, bills of credit.
Bills of credit defined.
83. Section 10 of Article I of the Constitution declares that
"no state shall .... emit bills of credit." Bills of Credit
within the meaning of this constitutional provision are
promissory notes issued by a state government on its credit
"intended to circulate throughout the community, for its ordinary
purposes as money, "and redeemable on demand, or at a day certain
in the future. (1)
What are, and what are not, bills of credit.
84. A state, therefore, may not issue interest-bearing
certificates in denominations "not exceeding $10, nor less than
50 cents" receivable by the state in payment of taxes, and of
debts due to the state, and payable to officers of the state in
discharge of salaries and fees of office, and redeemable by the
state under an arrangement that there shall be withdrawn
"annually from circulation one-tenth part of the certificates."
(2) Nevertheless, a state may incorporate a bank, of which that
state shall be the sole shareholder, and it may authorize that
bank to issue notes as circulation, without contravening the
constitutional prohibition, the distinction being that such notes
are issued, not on the credit of the state, but on the credit of
the capital and assets of the bank. (3) Coupons of state bonds,
though negotiable and receivable for taxes due to the state, (4)
and warrants drawn in payment of appropriations made by the
legislature, payable upon presentation if there be funds in the
treasury, and issued to individuals in payment of debts due to
them, (5) cannot properly be called bills of credit, for they are
not intended to circulate as money.
Footnotes:
(1) Craig v. Missouri, 4 Pet. 411; Byrne v. Missouri, 8 id. 40;
Briscoe v. Bank of Kentucky, 11 id. 257.
(2) Craig v. Missouri 4 Pet. 410 B e i v. Missouri 8 id. 40.
(3) Briscoe v. Bank of Kentuay, 11 Pet. 257; Darrington v. The
Bank of Alabama, 13 How. 12.
(4) Virginia Coupons Case, 114 U.S. 269, 284.
(5) H. & T. C. R. v. Texas, 177 U.S. 66, 89.
CHAPTER VIII:
STATE COMPACTS
85. What compacts are permitted, and what are forbidden.
What compacts are permitted, and what are forbidden.
85. Section 10 of Article I of the Constitution declares that
"no state shall enter into any treaty, alliance, or confederation
.... No state shall, without the consent of Congress .... enter
into any agreement or compact with another state." This
constitutional prohibition forbids compacts between a state and
foreign nations, and also compacts between states of the United
States, to which the assent of Congress has not been given. It
is, therefore, decisive against the validity of the confederation
entered into by the insurgent states in 1861. (1) It also
forbids a governor of a state to enter into an agreement with a
foreign government for the extradition of a prisoner. (2) But
states may, with the consent of Congress, enter into agreements
touching conflicting boundaries, (3) and, in such cases, the
consent of Congress does not necessarily have to be given by
congressional legislation expressly assenting to each of the
stipulations of the agreement between the states, but that
consent may be inferred from the legislation of Congress touching
the subject matter of the agreement. (4) The prohibition of
state compacts does not invalidate agreements entered into before
the adoption of the Constitution. (5)
Footnotes:
(1) Withams v. Bruffy, 96 U.S. 176; Sprott v. U.S. , 20 Wall.
459; Ford v. Surget, 97 U.S. 594; U.S. v. Keehler, 9 Wan.
83.
(2) Holmes v. Jennison, 14 Pet. 540.
(3) Rhode Island v. Massachusetts, 12 Pet. 724; Missouri v.
Iowa, 7 How. 660; Florida v. Georgia, 17 id. 478; Alabama v.
Georgia, 23 id. 505; Virginia v. West Virginia, 11 Wall. 39;
Poole v. Fleeger 11 Pet. 185.
(4) Virginia v. west virginia, 11 wall. 39; Virginia v.
Tennewee, 148 U.S. 503; cf. St. L. & S. P. Ry. v. James,
16, id. 545, 562.
(5) Wharton v. Wise, 153 U.S. 155.
CHAPTER IX:
FUGITIVES FROM JUSTICE
86. The constitutional provision.
87. The concurrent jurisdiction of the federal and state courts.
The constitutional provision.
86. Section 2 of Article IV of the Constitution declares that a
person charged in any state with treason, felony, or other crime,
who shall flee from justice and be found in another state, shall
on demand of the executive authority of the state from which he
fled, be delivered up, to be removed to the state having
jurisdiction of the crime." The words "treason, felony, or other
crime," as Taney, C.J., said in Kentucky v. Dennison, (1) "in
their plain and obvious import, as well as in their legal and
technical sense, embrace every act forbidden and made punishable
by a law of the state. The word 'crime' of itself includes every
offense, from the highest to the lowest in the grade of offenses,
and includes what are called 'misdemeanors,' as well as treason
and felony." (2) This constitutional provision imposes on the
executive of the state in which the fugitive has taken refuge the
duty of surrendering the fugitive upon demand made by the
executive of the state from which the fugitive has fled, and upon
proof made that he has been legally charged with crime, and this
duty has been recognized by the act of Congress of 12th February,
1793, (3) but if the governor of the state to which the fugitive
has fled refuses to deliver him up to justice, "there is no power
delegated to the general government, either through the judicial
department or any other department, to use any coercive means to
compel him." (4) The Supreme Court of the United States,
therefore, will not issue a mandamus to compel the performance by
a governor of a state of his constitutional duty of surrendering
to another state a fugitive from the justice of that state. (5)
This provision of the Constitution does not give to the person
extradited any constitutional right to insist that he shall not
be tried for any offense other than that set forth in the
requisition papers without first having an opportunity to return
to the state from which he was extradited. (6) And a fugitive
from justice who has been abducted from the state to which he
fled may thereafter be tried in the state to which he has been
forcibly carried, without violating any right or immunity secured
to the accused by the Constitution of the United States. (7)
The concurrent jurisdiction of the federal and state courts.
87. An alleged fugitive from justice may petition a court of the
United States for a writ of habeas corpus to inquire into the
legality of his detention, but as the responsibility of
determining whether or not the alleged fugitive from justice be
in fact a fugitive from justice, rests upon the executive of the
state to which the fugitive has fled, a court of the United
States will not discharge the fugitive upon the hearing of the
writ of habeas corpus because, in its judgment the proof that the
prisoner is a fugitive from justice is, though satisfactory to
the executive, not as complete as might have been required. (8)
When, however, it is shown conclusively that the accused was not
within the state at the time the crime was committed, he will be
discharged upon the hearing of the writ. (9) The alleged
fugitive may also apply, by petition for a writ of habeas corpus,
to a court of the state within which he is detained in custody of
the purpose of being delivered to the justice of another state,
for the jurisdiction of the courts of the United States over such
petitions for writs of habeas corpus is not exclusive of the
jurisdiction of the courts of the states in such cases, and the
agent of the state demanding the surrender of the alleged
fugitive is in no sense an officer of the United States, nor
otherwise exempt from the process of the courts of the states.
(10)
Footnotes:
(1) 24 How. 99.
(2) See also Ex parte Reggel, 114 U.S. 642.
(3) I Stat. 302; Rev. Stat., secs. 5278, 5279.
(4) Per Taney, C. J., in Kentucky v. Dennison, 24 How. 109.
(5) Kentucky v. Dennison, 24 How. 66.
(6) Lascelles v. Georgia, 148 U. S. 537; cf. Cosgrove v.
WixLney, 174 i& 64.
(7) Mahon v. Justice, 127 U.S. 700.
(8) Ex parte Reggel, 114 T. S. 642; Roberts z7. Reilly, 116 id.
80; Whitten v. Tomlinson, 160 id. 231. See also Cook v.
Hart, 146 id. 183; Pearce v. Texas, 155 id. 311.
(9) Hyatt v. People, 188 U.S. 691.
(10) Robb v. Connolly, Ill U.S. 624.
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C. Stuart Patterson