In another Connecticut case it appeared that certain marriages had been celebrated by persons in the ministry who were not empowered to perform that ceremony by the State law, and that the marriages were therefore invalid. The legislature had afterwards passed an act declaring all such marriages valid, and the court sustained the act. It was assailed as an exercise of the judicial power; but this it clearly was not, as it purported to settle no controversies, and merely sought to give effect to the desire of the parties, which they had ineffectually attempted to carry out by means of the ceremony which proved insufficient. And while it was not claimed that the act was void in so far as it made effectual the legal relation * of matrimony between [* 373] the parties, it was nevertheless insisted that rights of property dependent upon that relation could not be affected by it, inasmuch as, in order to give such rights, it must operate retrospectively. The court in disposing of the case are understood to express the opinion that, if the legislature possesses the power to validate an imperfect marriage, still more clearly does it have power to affect incidental rights. "The man and the woman were unmarried, notwithstanding the formal ceremony which passed between them, and free in point of law to live in celibacy, or contract marriage with any other persons at pleasure. It is a strong exercise of power to compel two persons to marry without their consent, and a palpable perversion of strict legal right. At the same time the retrospective law thus far directly operating on vested rights is admitted to be unquestionably valid, because manifestly just." 1

It is not to be inferred from this language that the court understood the legislature to possess power to select individual members of the community, and force them into a relation of marriage with each other against their will. That complete control which the legislature is supposed to possess over the domestic

Smith v. Merchand's Ex'rs, 7 S. & R. 260; Underwood v. Lilly, 10 S. & R. 97; Bleakney v. Bank of Greencastle, 17 S. & R. 64; Menges v. Wertman, 1 Penn. St. 218; Weister v. Hade, 52 Penn. St. 474; Ahl v. Gleim, 52 Penn. St. 432; Selsby v. Redlon, 19 Wis. 17; Parmelee v. Lawrence, 48 Ill. 331.

1 Goshen v. Stonington, 4 Conn. 224, per Hosmer, J. The power to validate void marriages held not to exist in the legislature where, by the constitution, the whole subject was referred to the courts. White, 105 Mass. 325.

White v.

relations can hardly extend so far. The legislature may perhaps divorce parties, with or without cause, according to its own view of justice or public policy; but for the legislature to marry parties against their consent, we conceive to be decidedly against “the law of the land." The learned court must be understood as speaking here with exclusive reference to the case at bar, in which the legislature, by the retrospective act, were merely removing a formal defect in certain marriages which the parties had assented to, and which they had attempted to form. Such an act, unless special circumstances conspired to make it otherwise, would certainly be "manifestly just," and therefore might well be held " unquestionably valid." And if the marriage was rendered valid, the legal incidents would follow of course. In a Pennsylvania case the validity of certain grading and paving assessments was involved, and it was argued that they were invalid for the reason that the city ordinance under which they had been made was inoperative, because not recorded as required by law. But the legislature had passed an act to validate this ordinance, and had declared therein that the omission to record the ordinance should not affect or impair the lien of the assessments against the lot owners. In passing upon the validity of this act, the court express the following views: "Whenever there is a right, though imperfect, the constitution does not prohibit the legislature from giving a remedy. In Hepburn v. Curts, it was said, 'The legis

lature, provided it does not violate the constitutional pro[* 374] visions, may pass retrospective laws, such as in their operation may affect suits pending, and give to a party a remedy which he did not previously possess, or modify an existing remedy, or remove an impediment in the way of legal proceedings.' What more has been done in this case? ... While (the ordinance) was in force, contracts to do the work were made in pursuance of it, and the liability of the city was incurred. But it was suffered to become of no effect by the failure to record it. Notwithstanding this, the grading and paving were done, and the lots of the defendants received the benefit at the public expense. Now can the omission to record the ordinance diminish the equitable right of the public to reimbursement? It is at most but a formal defect in the remedy provided, - an oversight. That

1 7 Watts, 300.

such defects may be cured by retroactive legislation need not be argued." 1

On the same principle legislative acts validating invalid contracts have been sustained. When these acts go no farther than to bind a party by a contract which he has attempted to enter into, but which was invalid by reason of some personal inability on his part to make it, or through neglect of some legal formality, or in consequence of some ingredient in the contract forbidden by law, the question which they suggest is one of policy, and not of constitutional power.

By statute of Ohio, all bonds, notes, bills, or contracts negotiable or payable at any unauthorized bank, or made for the purpose of being discounted at any such bank, were declared to be void. While this statute was in force a note was made for the purpose of being discounted at one of these institutions, and was actually discounted by it. Afterwards the legislature passed an act, reciting that many persons were indebted to such bank, by bonds, bills, notes, &c., and that owing, among other things, to doubts of its right to recover its debts, it was unable to meet its own obligations, and had ceased business, and for the purpose of winding up its affairs had made an assignment to a trustee ; therefore the said act authorized the said trustee to bring suits on the said bonds, bills, notes, &c., and declared it should not be lawful for the defendants in such suits "to plead, set up, or insist upon, in defence, that the notes, bonds, bills, or other written evidences of such indebtedness are void on account of being contracts against or in violation of any statute *law [* 375] of this State, or on account of their being contrary to public policy." This law was sustained as a law "that contracts may be enforced," and as in furtherance of equity and good morals.2 The original invalidity was only because of the statute, and that statute was founded upon reasons of public policy which had either ceased to be of force, or which the legislature regarded as overborne by countervailing reasons. Under these circumstances

1

Schenley v. Commonwealth, 36 The legislature has the same power Penn. St. 29, 57. See also State v. to ratify and confirm an illegally apNewark, 27 N. J. 185; Den v. Dow- pointed corporate body that it has to nam, 13 N. J. 135; People v. Sey- create a new one. Mitchell v. Deeds, mour, 16 Cal. 332; Grim v. Weis- 49 Ill. 416. enburg School District, 57 Penn. St. 433; State v. Union, 33 N. J. 355.

2 Lewis v. McElvain, 16 Ohio, 347.

it was reasonable and just that the makers of such paper should be precluded from relying upon such invalidity.1

By a statute of Connecticut, where loans of money were made, and a bonus was paid by the borrower over and beyond the interest and bonus permitted by law, the demand was subject to a deduction from the principal of all the interest and bonus paid. A construction appears to have been put upon this statute by business men which was different from that afterwards given by the courts; and a large number of contracts of loan were in consequence subject to the deduction. The legislature then passed a "healing act," which provided that such loans theretofore made should not be held, by reason of the taking of such bonus, to be usurious, illegal, or in any respect void; but that, if otherwise

legal, they were thereby confirmed, and declared to be [* 376] valid, as to principal, interest, and *bonus. The case of Goshen v. Stonington 2 was regarded as sufficient authority in support of this act; and the principle to be derived.

1 Trustees v. McCaughy, 2 Ohio, N. s. 155; Johnson v. Bentley, 16 Ohio, 97. See also Syracuse Bank v. Davis, 16 Barb. 188. By statute, notes issued by unincorporated banking associations were declared void. This statute was afterwards repealed, and action was brought against bankers on notes previously issued. Objection being taken that the legislature could not validate the void contracts, the judge says: "I will consider this case on the broad ground of the contract having been void when made, and of no new contract having arisen since the repealing act. But by rendering the contract void it was not annihilated. The object of the [original] act was not to vest any right in any unlawful banking association, but directly the reverse. The motive was not to create a privilege, or shield them from the payment of their just debts, but to restrain them from violating the law by destroying the credit of their paper, and punishing those who received it. How then can the defendants complain? As unauthorized bankers they were violators of

the law, and objects not of protection but of punishment. The repealing act was a statutory pardon of the crime committed by the receivers of this illegal medium. Might not the legislature pardon the crime, without consulting those who committed it?

.. How can the defendants say there was no contract, when the plaintiff produces their written engagement for the performance of a duty, binding in conscience if not in law?

Although the contract, for reasons of policy, was so far void that an action could not be sustained on it, yet a moral obligation to perform it, whenever those reasons ceased, remained; and it would be going very far to say that the legis lature may not add a legal sanction to that obligation, on account of some fancied constitutional restriction." Hess v. Werts, 4 S. & R. 361. See also Bleakney v. Bank of Greencastle, 17 S. & R. 64; Menges v. Wertman, 1 Penn. St. 218; Boyce v. Sinclair, 3 Bush, 264.

24 Conn. 224. *372-*373.

See ante, PP.

from that case was stated to be "that where a statute is expressly retroactive, and the object and effect of it is to correct an innocent mistake, remedy a mischief, execute the intention of the parties, and promote justice, then, both as a matter of right and of public policy affecting the peace and welfare of the community, the law should be sustained."1

After the courts of the State of Pennsylvania had decided that the relation of landlord and tenant could not exist in that State under a Connecticut title, a statute was passed which provided that the relation of landlord and tenant "shall exist and be held as fully and effectually between Connecticut settlers and Pennsylvania claimants as between other citizens of this Commonwealth, on the trial of any case now pending or hereafter to be brought within this Commonwealth, any law or usage to the contrary notwithstanding." In a suit which was pending and had been once tried before the statute was passed, the statute was sustained by the Supreme Court of that State, and afterwards by the Supreme Court of the United States, into which last-mentioned court it had been removed on the allegation that it violated the obligation of contracts. As its purpose and effect was to remove from contracts which the parties had made a legal impediment to their enforcement, there would seem to be no doubt, in the light of the other authorities we have referred to, that the conclusion reached was the only just and proper one.2

In the State of Ohio, certain deeds made by married women were ineffectual for the purposes of record and evidence, by reason of the omission on the part of the officer taking the acknowledgment to state in his certificate that, before and at the time of the

1 Savings Bank v. Allen, 28 Conn. 97. See also Savings Bank v. Bates, 8 Conn. 505; Andrews v. Russell, 7 Blackf. 474; Grimes v. Doe, 8 Blackf. 371; Thompson v. Morgan, 6 Minn. 202; Parmelee v. Lawrence, 48 Ill. 331. In Curtis v. Leavitt, 17 Barb. 309, and 15 N. Y. 9, and in Woodruff v. Scruggs, 27 Ark. 26, 8. c. 11 Am. Rep. 777, a statute forbidding the interposition of the defence of usury was treated as a statute repealing a penalty. See further, Lewis v. Foster, 1 N. H. 61; Wilson v. Hardesty, 1 Md. Ch. 66;

Welch v. Wadsworth, 30 Conn. 149; Wood v. Kennedy, 19 Ind. 68; Washburn v. Franklin, 35 Barb. 599; Parmelee v. Lawrence, 48 Ill. 331; Danville v. Pace, 25 Grat. 1. The case of Gilliland v. Phillips, 1 S. C. N. s. 152, is contra; but it discusses the point but little, and makes no reference to these cases.

2 Satterlee v. Mathewson, 16 S. & R. 169, and 2 Pet. 380. And see Watson v. Mercer, 8 Pet. 88; Lessee of Dulany v. Tilghman, 6 G. & J. 461; Payne v. Treadwell, 16 Cal. 220; Maxey v. Wise, 25 Ind. 1.