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many cases, it is difficult to perceive how such a corporation can successfully contest the validity of a special statute, which only sanctions a contract previously made by the * cor- [* 380] poration, and which, though at the time ultra vires, was nevertheless for a public and local object, and compels its performance through an exercise of the power of taxation.

1 In Hasbrouck v. Milwaukee, 13 property of one individual or corpoWis. 37, it appeared that the city of ration and transfer it to another.” Milwaukee had been authorized to This reasoning is of course to be uncontract for the construction of a derstood in the light of the particular harbor, at an expense not to exceed case before the court; that is to say, $100,000 A contract was entered a case in which the contract was to do into by the city providing for a larger something not within the ordinary expenditure; and a special legislative functions of local government. See aet was afterwards obtained to ratify the case explained and defended by it. The court held that the subse- the same eminent judge in Mills v. quent legislative ratification was not Charlton, 29 Wis. 413. Compare Fisk sufficient, proprio vigore, and without v. Kenosha, 26 Wis. 26, 33, Knapp evidence that such ratification was v. Grant, 27 Wis. 147, and Single v. procured with the assent of the city, Supervisors of Marathon, 38 Wis. 363, or had been subsequently acted upon in which the right to validate a conor confirmed by it, to make the con- tract which might originally have tract obligatory upon the city. The been authorized was fully affirmed. court say, per Dixon, Ch. J.: “ The And see Marshall v. Silliman, 61 Ill. question is, can the legislature, by 218, 225, opinion by Chief Justice recognizing the existence of a previ- Lawrence, in which, after referring to ously void contract, and authorizing Harward v. St. Clair, &c. Drainage its discharge by the city, or in any Co., 51 Ill. 130, People v. Mayor of other way, coerce the city against its Chicago, 51 Il. 30, Hessler v. Drainwill into a performance of it, or does age Com’rs, 53 Ill. 105, and Loving. the law require the assent of the city, ston v. Wider, 53 III. 302, it is said, as well as of the legislature, in order " These cases show it to be the settled to make the obligation binding and doctrine of this court, that, under the efficacious? I must say that, in my constitution of .1848, the legislature opinion, the latter act, as well as the could not compel a municipal corpoformer, is necessary for that purpose, ration to incur a debt for merely local and that without it the obligation can- purposes, against its own wishes, and not be enforced. A contract void for this doctrine, as already remarked, has want of capacity in one or both of the received the sanction of express encontracting parties to enter into it is actment in our existing constitution. as no contract; it is as if no attempt That was the effect of the curative at an agreement had ever been made. act under consideration, and it was And to admit that the legislature, of therefore void.” The cases of Guilits own choice, and against the wishes ford v. Supervisors of Chenango, 18 of either or both of the contracting Barb. 615, and 13 N. Y. 143, Brewsparties, can give it life and vigor, is ter v. Syracuse, 19 N. Y. 116, and to admit that it is within the scope of Thomas v. Leland, 24 Wend. 65, eslegislative authority to devest settled pecially go much further than is necrights of property, and to take the essary to sustain the text. See also [* 381] * Nor is it important in any of the cases to which we

have referred, that the legislative act which cures the irregularity, defect, or want of original authority, was passed after suit brought, in which such irregularity or defect became matter of importance. The bringing of suit vests in a party no right to a particular decision ; 1 and his case must be determined on the law as it stands, not when the suit was brought, but when the judgment is rendered. It has been held that a statute allowing

Bartholomew v. Harwinton, 33 Conn. of the bond, the case is the ordinary 408; People v. Mitchell, 35 N. Y. one of local taxation to make or im551; Barbour v. Camden, 51 Me. 608; prove a highway. If such an act be Weister v. Hade, 52 Penn. St. 474; otherwise constitutional, we do not State v. Sullivan, 43 III. 413; John- see how the circumstance that a bond son v. Campbell, 49 m. 316. In Brew- had before been given securing the ster v. Syracuse, parties had con- same money can detract from its structed a sewer for the city at a validity. Should an individual volunstipulated price, which had been fully teer to secure a sum of money, in itself paid to them. The charter of the properly leviable by way of tax on a city forbade the payment of extra town or county, there would be nothcompensation to contractors in any ing in the nature of such an arrange

The legislature afterwards ment which would preclude the legispassed an act empowering the Com- lature from resorting, by way of tax, mon Council of Syracuse to assess, to those who are primarily and more collect, and pay over the further sum justly liable. Even should he pay the of $600 in addition to the contract money, what is there in the constituprice; and this act was held constitu- tion to preclude his being reimbursed tional. In Thomas v. Leland, certain by a tax.” Here, it will be perceived, parties had given bond to the State, the corporation was compelled to asconditioned to pay into the treasury sume an obligation which it had not a certain sum of money as an induce- even attempted to incur, but which ment to the State to connect the private persons, for considerations Chenango Canal with the Erie at which seemed to them sufficient, had Utica, instead of at Whitestown as taken upon their own shoulders. We originally contemplated, — the sum have expressed doubts of the correctmentioned being , the increased ex- ness of this decision, ante, pp. *230– pense in consequence of the change. *231, note, where a number of cases Afterwards the legislature, deeming are cited, bearing upon the point. the debt thus contracted by individ- 1 Bacon v. Callender, 6 Mass. 309; uals unreasonably partial and onerous, Butler v. Palmer, 1 Hill, 324; Cowpassed an act, the object of which was gill v. Long, 15 III. 203; Miller *. to levy the amount on the owners of Graham, 17 Ohio, n. s. 1; State real estate in Utica. This act seemed Squires, 26 Iowa, 340; Patterson v. to the court unobjectionable. “ The Philbrook, 9 Mass. 151. general purpose of raising the money 2 Watson v. Mercer, 8 Pet. 88; by tax was to construct a canal, a Mather v. Chapman, 6 Conn. 54; public highway, which the legislature Bristol v. Supervisors, &c., 20 Mich. believed would be a benefit to the city 93 ; Satterlee v. Mathewson, of Utica as such; and independently 169, and 2 Pet. 380.

case.

16 S. & R.

amendments to indictments in criminal cases might constitutionally be applied to pending suits ;) and even in those States in which retrospective laws are forbidden, a cause must be tried under the rules of evidence existing at the time of the trial, though different from those in force when the suit was commenced. And if a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when their decision is rendered.3

But the healing statute must in all cases be confined to validating acts which the legislature might previously have authorized. * It cannot make good retrospectively acts or [* 382] contracts which it had and could have no power to permit or sanction in advance. There lies before us at this time a volume of statutes of one of the States, in which are contained acts declaring certain tax-rolls valid and effectual, notwithstanding the following irregularities and imperfections : a failure in the supervisor to carry out separately, opposite each parcel of land on the roll, the taxes charged upon such parcel, as required by law;

1

State o. Manning, 11 Tex. 402. 129; Insurance Co. v. Ritchie, 5 Wall. 2 Rich v. Flanders, 39 N. H. 304. 511; Ex parte McCardle, 7 Wall. 506 ;

3 State 1. Norwood, 12 Md. 195. United States v. Tyner, 11 Wall. 88; In Eaton o. United States, 5 Cranch, Engle v. Shurtz, 1 Mich. 150. In the 281, a vessel had been condemned in Mccardle case the appellate jurisdicadmiralty, and pending an appeal the tion of the United States Supreme act under which the condemnation Court in certain cases was taken away was declared was repealed. The while a case was pending. Per Chase, court held that the cause must be Ch. J.: “ Jurisdiction is power to considered as if no sentence had been declare the law; and when it ceases pronounced; and if no sentence had to exist, the only function remaining been pronounced, then, after the ex- to the court is that of announcing the piration or repeal of the law, no pen- fact and dismissing the cause. This alty could be enforced or punishment is not less clear upon authority than inflicted for a violation of the law upon principle.” But where a State committed while it was in force, un- has jurisdiction of a subject, e. g. less some special provision of statute pilotage, until Congress establishes was made for that purpose. See also regulations, and penalties are incurred Schoouer Rachel v. United States, under a State act, and afterwards 6 Cranch, 329; Commonwealth v. Congress legislates on the subject, Duane, 1 Binney, 601; United States this does not repeal, but only sus0. Passmore, 4 Dall. 372; Common- pends the State law; and a penalty wealth v. Marshall, 11 Pick. 350; previously incurred may still be colCommonwealth v. Kimball, 21 Pick. lected. Sturgis v. Spofford, 45 N. Y. 373; Hartung v. People, 22 N. Y. 446. 100; Union Iron Co. v. Pierce, 4 4 Kimball v. Rosenthal, (Sup. Ct. Biss. 3:27; Norris o. Crocker, 13 How. Wis.) 5 Cent. Law Journal, 372.

tion suit, and the land bid off by a company of persons, who proposed subdividing and selling it in parcels. The sale was confirmed in their names, but by mutual arrangement the deed was made to one only, for convenience in selling and conveying. This deed failed to convey the title, because not following the sale. The legislature afterwards passed an act providing that, on proof being made to the satisfaction of the court or jury before

which such deed was offered in evidence that the land [* 372] was sold fairly and without fraud, * and the deed exe

cuted in good faith and for a sufficient consideration, and with the consent of the persons reported as purchasers, the deed should have the same effect as though it had been made to the purchasers. That this act was unobjectionable in principle wa not denied ; and it cannot be doubted that a prior statute, au thorizing the deed to be made to one for the benefit of all and with their assent, would have been open to no valid objection.

In certain Connecticut cases it was insisted that sales made a real estate on execution were void, because the officer had in cluded in the amount due, several small items of fees not allowe by law. It appeared, however, that, after the sales were made, th legislature had passed an act providing that no levy should b deemed void by reason of the officer having included greater fee than were by law allowable, but that all such levies, not in othe respects defective, should be valid and effectual to transmit th title of the real estate levied upon. The liability of the officer fd receiving more than his legal fees was at the same time left una fected. In the leading case the court say : “ The law, undoub edly, is retrospective ; but is it unjust ? All the charges of tł officer on the execution in question are perfectly reasonable, an for necessary services in the performance of his duty; of cons quence they are eminently just, and so is the act confirming th levies. A law, although it be retrospective, if conformable to e tire justice, this court has repeatedly decided is to be recognize and enforced." 2

1 See Davis v. State Bank, 7 Ind. by certain specified defects and irreg 316, and Lucas v. Tucker, 17 Ind. 41, larities. for decisions under statutes curing 2 Beach v. Walker, 6 Conn. 19 irregular sales by guardians and ex- Booth v. Booth, 7 Conn. 350. Au ecutors. In many of the States gen- see Mather v. Chapman, 6 Con eral laws will be found providing 54; Norton v. Pettibone, 7 Conn. 31 that such sales shall not be defeated Welch v. Wadsworth, 30 Conn. 11

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, of 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 rested rights is admitted to be unquestionably valid, because manifestly just.” 1

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

imith o. Merchand's Ex’rs, 7 S. & R. i Goshen v. Stonington, 4 Conn. 50; Underwood v. Lilly, 10 S. & R. 224, per Hosmer, J. The power to 7; Bleakney v. Bank of Greencastle, validate void marriages helà not to 7 S. & R. 61; Menges v. Wertman, exist in the legislature where, by the | Penn. St. 218; Weister v. Hade, 52 constitution, the whole subject was ena. St. 474; Ahlv. Gleim, 52 referred to the courts.

White v. enn. St. 432; Selsby v. Redlon, White, 105 Mass. 325. 9 Wis. 17; Parmelee v. Lawrence,

8 m. 331.

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