the said act was passed after the arrest, in- | charged, he prosecuted an appeal to the su-
dictment, and first trial of defendant and is
in violation of art. 1, § 10, Constitution
United States.

Calder v. Bull, 3 Dall. 396 (1:648); Kring v. Missouri, 107 U. S. 221 (27: 506); State v. Bond, 49 N. C. (4 Jones L.) 9; State v. Johnson, 12 Minn. 486, 92 Am. Dec. 211; Story, Const. § 1345; Cooley, Const. Lim. pp. 319, 325; 1 Bl. Com. §§ 45. 46; Kent, Com. p. 458; Miller, Const. p. 587; llare, Am. Const. L. p. 565; Black, Constitutional Prohibitions, §§ 234 et seq.

It was error to admit in evidence for the purpose of comparison certain extraneous handwritings, under § 8944a, Sessions Laws of Missouri 1895, because in violation of art. 2. § 15, Constitution of Missouri, and in violation of §§ 6594, 6597, 6598, Revised Statutes of Missouri 1889.

Statev. Thompson, 141 Mo.408; Pacific R. Co. v. Cass County, 53 Mo. 17; St. Louis v. Life Asso. of America, 53 Mo. 466; State v. Grant, 79 Mo. 113, 49 Am. Rep. 218. |

Mr. Edward C. Crow, Attorney General of Missouri, for defendant in error:

The law of 1895 (see Acts of Mo. 1895, p. 284), making the notes written by defendant while in jail and proved to be genuine and competent for the purpose of comparison with the disputed writing, to wit: the forged order to the druggist for strychnine, is not an ex post facto law in its relation to this case.

State v.Thompson, 141 Mo. 408; Hopt v. Utah, 110 U. S. 574 (28:262); O'Bryar v. Allen, 108 Mo. 227; State v. Jackson, 80 Mo. 175, 50 Am. Rep. 499; Cooley, Const. Lim. 3d ed. 367; Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483, 90 Am. Dec. 438; State v. Thompson, 132 Mo. 301.

This law of 1895 relates solely to the procedure, and the rule is that remedies and procedure must always be under the control of the legislature.

Cooley, Const. Lim. 5th ed. p. 329. Laws which change the rules of evidence relate to the remedy only, and may be applied to existing causes of action without infringing the constitutional guarantees against "ex post facto" legislation.

O'Bryan v. Allen, 108 Mo. 227; Laughlin v. Com. 13 Bush, 261; Messim v. McCray, 113 Mo. 382; Mrous v. State, 31 Tex. Crim. Rep. 597.

Mr. Justice Harlan delivered the opinion

of the court:

The record suggests many questions of law, but the only one that may be considered by this court is whether the proceedings against the plaintiff in error were consistent with the provision in the Constitution of the United States forbidding the states from passing ex post facto laws.

preme court of Missouri, and by that court
the judgment was reversed and a new trial
was ordered. State v. Thompson, Appellant,
132 Mo. 301. At the second trial the accused
was again convicted; and a new trial having
been denied, he prosecuted another appeal to
the supreme court of the state. That court
affirmed the last judgment, and the present
appeal brings that judgment before us for[381]
re-examination. State v. Thompson, Appel-
lant (Mo.) 42 S. W. 949.

The evidence against the accused was en-
tirely circumstantial in its nature. One of
the issues of fact was as to the authorship of
a certain prescription for strychnine, and of
a certain letter addressed to the organist of
the church containing threatening language
about the sexton. The theory of the prose-
cution was that the accused had obtained the
strychnine specified in the prescription and
put it into food that he delivered or caused
to be delivered to the deceased, with intent
to destroy his life. The accused denied that
he wrote either the prescription or the letter
to the organist or that he had any connection
with either of those writings. At the first
trial certain letters written by him to his
wife were admitted in evidence for the pur-
pose of comparing them with the writing in
the prescription and with the letter to the
organist. The supreme court of the state,
upon the first appeal, held that it was error
to admit in evidence for purposes of compar-
ison the letters written by Thompson to his
wife, and for that error the first judgment
was reversed and a new trial ordered. 132
Mo. 301, 324.

Subsequently, the general assembly of Missouri passed an act which became operative in July, 1895, providing 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." Laws Mo. 1895, p. 284.

This statute is in the very words of § 27
of the English common-law procedure act of
1854 (17 & 18 Vict. chap. 125). And by the
28 Vict. chap. 18, §§ 1, 8, the provisions of
that act were extended to criminal cases.

At the second trial, which occurred in
1896, the letters written by the accused to his
wife were again admitted in evidence, over
his objection, for the purpose of comparing
them with the order for strychnine and the
letter to the organist. This action of the[382]
trial court was based upon the above statute
of 1895.

The contention of the accused is that as
the letters to his wife were not, at the time of
the commission of the alleged offense, admis-
Thompson was indicted in the St. Louis sible in evidence for the purpose of comparing
criminal court at its November term, 1894, them with other writings charged to be in his
for the murder, in the first degree, of one handwriting, the subsequent statute of Mis-
Joseph M. Cunningham, a sexton at one of souri changing this rule of evidence was es
the churches in the city of St. Louis. Hav-post facto when applied to his case.
ing been tried and convicted of the offense It is not to be denied that the position of

174

The original ordinance 6695 contemplated | face of this ordinance it is apparent that the that the proposed railroad would be built rights thus given the railroad to extend upon the west bank of the Mississippi river, along Claiborne to Canal for passenger purNew Orleans being upon the east bank, and poses, and along a street to be designated to hat the road would cross that river to the the river for freight purposes, were mere ac[335]ast bank some hundred *or more miles above cessories to the obligation imposed by the ordiNew Orleans, coming to that city on the east nance upon the railroad to build its depots, bank, and entering in the rear of the city, structures, warehouses, etc., at the point inthat is, in that portion of the city lying a con- dicated, and that the incidental rights of exsiderable distance back from the river. The tension from the terminus to the other points purpose of the ordinance was clearly indicated could have no existence if no terminus was by its title, which declared that it was in- established from which the extensions could tended to grant "to the New Orleans Pacific be_nade. Reading the provisions of the Railway Company or its assigns the right to ordinance with the preamble and the establish its terminus within the city limits title, it cannot reasonably be controand to construct, maintain, and operate a verted that the rights of extension [836]railroad to and from such a terminus, with were granted upon the suspensive conone extension for passenger purposes and an-dition that the railroad should terminate at other for freight purposes, into and through the point indicated, and there build the shops certain streets and places in the city of New Orleans." The preamble to the ordinance recited the desire of the railroad to enter the city at about a certain point, and to construct its terminus between the new Canal and Melpomene street, providing the city would grant the right to extend its tracks "from such terminus into and through Claiborne street to Canal street for passenger purposes; and shall also grant the right to extend its tracks from such terminus north of Claiborne Canal by "That the right of way, franchises, and the most convenient and practicable route privileges herein granted to the New Orleans through the public streets to the river front Pacific Railway Company are granted only for freight purposes." The 1st section of the on condition and in consideration that the ordinance grants the railroad the right to en- said grantees shall permanently establish the ter the city to the point stated in the pream-terminus of said road within the city limits, ble, and to construct and maintain at the ter- and maintain said terminus during the exminus necessary depots, shops, yards, ware-istence of the charter of said compary, for houses, and other structures, convenient and which period said right of way and privileges useful for the transaction of its business. The shall last; and should the said company at peint at which the right to construct this ter- any time hereafter abandon its said road on minus was given by the ordinance is embraced the east side of the Mississippi river and its within the triangular space in the rear of the terminus within the city limits, then this city as marked on the sketch above given. grant shall cease and terminate, and be withThe 2d section of the ordinance empowered cut force or effect from the date of such abanthe company to "locate, construct and main-donment; and it is still made a con

and depots from which the right to extend its tracks was conceded. And this is, if possible, made more certain by considering the 4th section, which, in express words, provides that the privileges of extension granted were dependent upon the establishment of the terminus at the point indicated, and would cease to exist if, after the establishment of the terminus, the railroad company should abandon it. The language of the 4th section is as follows:

tain an extension of its railroad with all neces-dition of this grant that said railway comsary tracks, switches, turnouts, sidings and pany shall complete its road from the structures of every kind, convenient and use- crossing of the Mississippi river, at or near ful and appurtenant to said railroad, Baton Rouge, to its terminus in this city[338] into and through Claiborne street to Canal within two years from the promulgation of street, with the right to construct a passenger this ordinance." depot at or near the intersection of Claiborne The words "the terminus of said road" street with Canal street." A glance at the and said "terminus" used in the 4th section sketch will make clear the fact that Claiborne clearly refer to the terminus fixed by the ordistreet thus designated was in the rear of the nance, and where the railroad agreed to estabcity, quite near the point where the railroad lish its shops, roundhouses, etc. It folhad contracted to establish its terminus, de- lows, then, that the ordinance granted pots and structures, and that the route thus a right to the railroad company to mapped out in the very nature of things and enter the city to reach a designated in the language of the ordinance was a mere point, and imposed upon the company right granted to the railroad to extend its the obligation to erect its depots, shops, waretracks from the terminus, which the railroad houses, etc., at that point; that in consider was under the obligation to build, to andation of this obligation assumed by the comalong the designated route to the point indi-pany, to be performed within two years, a cated on Claiborne and Canal. The 3d sec- right was given to it to extend from the depot tion of the ordinance obligated the city to des- so designated a passenger track to a given ignate a street from the point where the ter-point, and a freight track to another point; [337 minus *was selected, and where the company that the two rights of extension were the was to establish itself, through which it could mere resultants of the principal obligation build an extension for the purposes of its imposed upon the company, in consideration freight business to the river front. On the of which the rights to the extensions were

under the law in force when the act to be in
vestigated is charged to have taken place.
Remedies must always be under the control
of the legislature, and it would create endless
confusion in legal procesings if every case
was to be conducted only in accordance with
the rules of practice and heard only by the
courts in existence when its facts arose. The
legislature may abolish courts and create
new ones, and it may prescribe altogether
different modes of procedure in its discretion
though it cannot lawfully, we think, in so
doing, dispense with any of those substantial
protections with which the existing law sur-
rounds the person accused of crime."" Chap.
9, *272.

which the law gave him when the offense was add: "Of course, a statute is not of that committed, and therefore, in its application to class unless it materially impairs the right of that offense and its consequences, altered the the accused to have the question of his guilt situation of the party to his disadvantage. determined according to the law as it was 385]By the law as established *when the offense when the offense was committed. And, therewas committed, Kring could not have been fore, it is well settled that the accused is not punished with death after his conviction of entitled of right to be tried in the exact mode, murder in the second degree, whereas, by the in all respects, that may be prescribed for the abrogation of that law by the constitutional trial of criminal cases at the time of the comprovision subsequently adopted, he could mission of the offense charged against him. thereafter be tried and convicted of murder Cooley in his Treatise on Constitutional in the first degree, and subjected to the pun- Limitations, after referring to some of the ishment of death. Thus the judgment of con- adjudged cases relating to ex post facto laws, viction of murder in the second degree was says: 'But, so far as mere modes of proceddeprived of all force as evidence to establish ure are concerned, a party has no more right, his absolute immunity thereafter from pun-in a criminal than in a civil action, ishment for murder in the first degree. to insist that his case shall be disposed of This was held to be the deprivation of a substantial right which the accused had at the time the alleged offense was committed. But there are no such features in the case before us. Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done; nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree or lessen the amount or measure, of the proof which was made necessary to conviction when the Applying the principles announced in crime was committed." The court added: former cases-without attaching undue "The crime for which the present defendant weight to general expressions in them that go was indicted, the punishment prescribed beyond the questions necessary to be detherefor, and the quantity or the degree of termined-we adjudge that the statute of proof necessary to establish his guilt, all re- Missouri relating to the comparison *of writ [387] mained unaffected by the subsequent statute. ings is not ex post facto when applied to Any statutory alteration of the legal rules of prosecutions for crimes committed prior to its evidence which would authorize conviction passage. If persons excluded, upon grounds upon less proof, in amount or degree, than of public policy at the time of the commission was required when the offense was com- of an offense, from testifying as witnesses for or mitted, might, in respect of that offense, be against the accused, may, in virtue of a obnoxious to the constitutional inhibition up- statute, become competent to testify, we canon ex post facto laws. But alterations not perceive any ground upon which to hold which do not increase the punishment, nor a statute to be ex post facto which does change the ingredients of the offense, or the nothing more than admit evidence of a parultimate facts necessary to establish guilt, ticular kind in a criminal case upon an issue tut-leaving untouched the nature of the of fact which was not admissible under the crime and the amount or degree of proof es- rules of evidence as enforced by judicial de sential to conviction-only remove existing cisions at the time the offense was committed. restrictions upon the competency of certain The Missouri statute, when applied to this classes of persons as witnesses, relate to modes case, did not enlarge the punishment to of procedure only, in which no one can be which the accused was liable when his crime said to have a vested right, and which the was committed, nor make any act involved in 386 state, upon grounds of public policy, may his offense criminal that was not criminal regulate at its pleasure. Such regulations of at the time he committed the murder of the mode in which the facts constituting guilt which he was found guilty. It did not may be placed before the jury, can be made change the quality or degree of his offense. applicable to prosecutions or trials thereafter Nor can the new rule introduced by it be had, without reference to the date of the com- characterized as unreasonable certainly not mission of the offense charged." so unreasonable as materially to affect the At the present term, in Thompson v. Utah, substantial rights of one put on trial for 170 U. S. 343 [42: 1061], this court observed, crime. The statute did not require "less generally, that a statute is ex post facto proof, in amount or degree," than was rewhich, by its necessary operation and in quired at the time of the commission of the its relation to the offense or its con- crime charged upon him. It left unimpaired sequences, alters the situation of the accused the right of the jury to determine the suf to his disadvantage. But it took care to ficiency or effect of the evidence declared to

limits of the city of New Orleans, as hereinabove recited."

the railroad is preparing also to cross from Westwego to the city park, and thence to In stating the purpose of the grant of the Claiborne street. The ordinance then pronew right of way from the point of landing ceeds to provide for arrangements for removat the city park opposite Westwego along ing the market from Claiborne street in order the line of the park over the route indicated, to allow the extension on that street to be the first section in the ordinance declares it built. The argument which is based upon to be given to afford the railroad the "most this ordinance is this, as at the time this practicable route to its designated terminus ordinance was passed, the railroad had east of Carrollton avenue." True it is that crossed from Gouldsboro to Thalia street and in § 6, in referring to the previous obligations established its terminus there, as is recited of the company to establish its terminus, the in the ordinance, hence it is asserted the orwords used are that the grantee shall perma- dinance recognizes the fact that the railroad nently establish "its terminus within the was entitled to the extension on Claiborne city limits." But, manifestly, the words "its street despite the fact that it had not estabterminus" as used there refer to its terminus lished its terminus as required by the ordias defined not only in the ordinance in ques-nances from which the right to the extension tion but in the prior ordinances by which the on Claiborne street arose. But this overlooks grant was made. the fact that in the very sentence upon which It being shown by the record that the ter-reliance is placed reference is made to the minus from which the extension along Claiborne street to Canal was to be made was never constructed, and that the crossing from Westwego to the land in front of the park was also never established, but, on the contrary, that the company extended its road down the river to Gouldsboro where it made its main crossing, it needs no reasoning to demonstrate that the right to the extension down Claiborne street and the right to the use of the batture in front of the city park no longer obtains. The claim of the corporation really amounts to this: That, having had certain accessory rights conferred upon it in the event it discharged particular obligations, it can disregard the obligations, escape the burdens resulting therefrom, and yet hold on to all the rights which depended for their existence upon the performance of the obligations which the company has disregarded. The ordinances cannot be properly construed as authorizing an extended track to be built when the point from which the extension was to be made has never come into existence. They cannot be read as dedicating [342]to the use of the *railroad, under the terms of the ordinances, the land in front of the city park, when such use was accorded to the railroad solely to enable it to accomplish a purpose which it has declined to effectuate by carrying its main crossing to another and a far distant point. In reaching these conclusions we are not unmindful of the argument predicated on the supposed effect of ordi-dinance granting the right to cross the river nance numbered 7946, A. S. The title of this ordinance indicates its purpose. It is as follows:

"An ordinance supplementary to ordinances 6695, 6732 and 6938, administration series, granting certain rights to the New Orleans Pacific Railway Company and its assigns, and providing for the selection of a site for the Claiborne market."

The preamble of this ordinance recites the two ordinances conferring the right to build the extension on Claiborne street and states this right to be one of maintaining "an extension of its railroad through Claiborne street," and after reciting the fact that the railroad had crossed at Thalia street, and established its terminus there, declares that

ordinance giving the corporation the right
to build from the city park to the "desig-
"ated" terminus. One portion of the sen-
tence cannot be separated from the other.
The most that can be said of the argument
advanced, from 'he text of this ordinance, is
that it seeks by implication and remote de-
duction to absolve the company from the
obligation imposed upon it when the acces-[343
sory right of extension down Claiborne street
was granted, and thus to enable the company
to retain the incidental right, when it had
relieved itself of the obligation upon which
the right rested. It is not to be doubted that
the rule is that contracts are not to be so
violently construed as to destroy rights in
consequence of suspensive conditions, but it
is also equally obvious that they are not to
be so interpreted as to relieve one of the
parties to a contract from the obligations re-
sulting therefrom and thereby destroy the
suspensive condition plainly written therein.
Corporations do not take public grants and
privileges by implication, and where express
and positive obligations are imposed in mak-
ing a grant, these obligations cannot, without
violating an elementary canon of interpreta-
tion, be frittered away in consequence of
loose implications made by way of reference
in subsequent municipal ordinances. The
formal contract of lease executed by the city
of the batture in front of the city park took
its origin from and was sanctioned by the or-

from Westwego to the land covered by the
lease in order to enable the corporation to
carry its tracks from thence to the terminus
which it contracted to establish under the
original ordinance. It follows, therefore,
that the suspensive condition by which the
rights of the company under the original or-
dinance were held in abeyance operates also
upon the lease in question.

The mere payment of rent did not change
the nature of the suspensive condition or
work an estoppel. The right to use the
property was limited to the destination
stated in the contract. La. Civ. Code, 2711.
But this right to use was covered by the sus-
pensive condition, and the contract of lease
only evidenced the agreement to use the prop-

The fact that the guardian acted in good | cation of the funds of the estates they repre-
faith is irrelevant and immaterial.
Sprott v. United States, 20 Wall. 459, 463
(22:371, 372).

any question as to the statute of limitations. It was agreed at the trial that the only The legislature of Georgia, by an act ap- matter in issue was as to the liability of Hunproved March 12, 1866, entitled "An Act for ter's estate by reason of his having invested the Relief of Administrators, Executors, the ward's money in 1863 in bonds of the Guardians, and Trustees, and for Other Pur- Confederate states. This appears from the poses," declared that all administrators, exec- charge to the jury in which the trial court, utors, guardians, and trustees, who, in pur- after observing that its duty was to follow suance of an order, judgment, or decree of any the decisions of the supreme court of Georgia, court having jurisdiction, or of any law of said: "In the present case I am authorized that state, bona fide invested the funds of to say that it is agreed between counsel that the estate they represented in the bonds, the investment was made bona fide, and the notes, or certificates of the state of Georgia *only question is whether it was lawful or un-[392] or of the Confederate states, "be and they are lawful for the guardian to make this investhereby relieved from all the penalties of mis- ment; and, further, that as I may decide the management, misappropriation, or misappli-l legal question, I shall instruct a verdict for 171 U. S. U. S., Book 43.

14

174