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