second case above cited the court conceded, that the legislature could not impair the title to estates without the consent of the proprietors unless for public objects, when an adequate consideration should be provided, but that there could be no objection to the operation of a statute retrospectively which should enlarge or otherwise make more valuable the title to an estate ; for that in such cases the consent of the owners to the act might be presumed. In a note to this case, the editor suggests a doubt as to the accuracy of the decision in the last case cited. He places the doubt upon the ground, that the judgment could only be maintained, as it would seem, from the express words of the act, which seemed to refer to all conveyances, which had been or should be made. That although a retroactive law, so far as it affected the remedy only, was unobjectionable ; but in this case, if the words of the act were to have their full force, rights already vested and acquired under conveyances already made were to be affected, altered, and taken away. But in a subsequent case, the doctrine contained in the two cases above cited was affirmed, and it was held, that it was no objection to the provision of this statute that the deed had been previously made, and had already created an estate in joint-tenancy; that it was the same in legal effect as if it had provided, that upon the future decease of a jointtenant, under certain circumstances, the principle of survivorship should not operate. That it was not retrospective in the sense of affecting any vested right.(a)

$ 270. It has also been beld, that an act appropriating, in the exercise of eminent domain, to the public use, property previously granted to an individual, was not under this restrictive clause of the constitution. Although it was held, that a grant of land was to be re

(a) Burghardt v. Turner, 12 Pick. 539.

garded as a contract within the meaning of the constitution, and that such grant could not be revoked by a state legislature, yet that there could be no doubt, but that land granted by the government might be taken by the legislature, in the exercise of the right of eminent domain, on payment of an equivalent, and that such an appropriation was not a violation of a contract by which property, or rights in the nature of property, and which might be compensated for in damages, were granted by the government to individuals.(a) The decision in the case last cited might be placed upon another ground, to wit, that as the right of eminent domain is an inherent sovereign power, admitted and recognized under all governments; that right gives to the legislature the control of private property for public use. This fundamental principle of all governments may be considered as a condition annexed to all grants of land, and as such, entering into and forming a part of the contract, in all grants of this character, and subject to which all such grants are held. Thus entering into and forming a part of the contract itself, the exercise of this right cannot in any just sense be said to impair the obligation of such contract.

§ 271. It will not impair the obligation of a contract created by the grant of a charter, if the property of the corporation be taken for the public use. Even if the powers of the corporation be thereby suspended, or the corporation itself dissolved.(b) An act of the legislature made without any consideration, and intended as a mere gratuity, executory in its character, and unexecuted in fact, does not in fact create such a vested right or con

(a) Boston Water Power Co. v. Boston and Worcester Ruil Road Co., 23 Pick. 360.

(6) Backus v. Lebanon, 11 N. H. 19. See also The Proprietors to the Piscalaqua Bridge v. The New Hampshire Bridge, 7 N. H. 35. Barber v. Andover, 8 N. H 398.

tract as that it may not be changed or defeated by subsequent acts of legislation.(a) This decision in the case last cited was placed upon the ground that the act was executory; that the constitution had adopted a distinction between contracts executory and executed, and did not mean togive any efficacy to nude pacts, nor to create new obligations, but to preserve all the obligatory force of contracts, and that all such executory contracts as it protected were such, and only such, as were founded on a sufficient consideration; that the act was a mere promise to collect and pay over a fund, and that as a mere gratuity. This promise to collect, and the promise to deliver might be retracted at any time before it was executed, without impairing the obligation of any contract.

$ 272. Although marriage is a civil contract, it is evident from the nature of the obligation it imposes, from the appropriate remedies, when they are violated, and from reasons which must have actuated the framers of the constitution of the United States, that general laws, providing for the dissolution of existing marriages, but operating upon transactions subsequent to their passage, are not within this clause of the constitution.(b) A private act of the legislature authorizing the sale of the estates of infants, for their maintenance and education, is within the scope of the legitimate authority of a state legislature, and is not within this prohibitory clause of the constitution.(c)

$ 273. It is also by the same section of the federal constitution declared, that “No state shall, without the consent of the congress, lay any imposts or duties on imports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any state on imports or exports shall be

(a) The Trustees of the Bishop's Fund v. Reder, 7 Conn. R. 99, N. S.
(6) Clark v. Clark, 10 N. H. 380.
(c) Cochran v. Van Surlay, 20 Wen. 365.

for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the congress.

No state shall, without the consent of congress, lay any duty or tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” We have already, when considering the powers of congress, considered the cases which have arisen under that branch of this clause which relates to states laying imposts, or duties on imports or exports. It will therefore be unnecessary to advert to them in this connection,




§ 274. Having considered in a previous chapter the restrictions upon legislative power under the federal constitution, we shall in the next place consider those which are contained in the constitutions of the respective states. These may be considered as divided into two classes. Those which restrict legislative action, unless certain conditions precedent are complied with, which are necessary to give validity to a legislative act; and those which are absolute and imperative in all cases, and operating per se as an absolute and unqualified restriction upon legislative power. An instance of the former kind is to be found in the constitution of New York of 1821, art. 7, sec. 9, which provides, “ The assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes, or creating, continuing, altering, or renewing every body politic or corporate. In the same class may be ranked the provision, that private property shall not be taken for public use without just compensation, nor unless the public exigencies require it. In the latter class are such provisions as declare that no sanguinary laws shall be passed, nor bills of attainder or ex post facto laws, nor laws which impair the obligation of a contract, and all provisions of a similar character. $ 275. Under the constitution of New York of 1821,

« ForrigeFortsett »