*

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. Merchand's Ex'rs, 7 S. & R.

0.

270; Underwood v.

Lilly, 10 S. & R.

1 Goshen v. Stonington, 4 Conn. 224, per Hosmer, J. The power to

97; Bleakney v. Bank of Greencastle, validate void marriages held not to 17 S. & R. 64; Menges v. Wertman, exist in the legislature where, by the I Penn. St. 218; Weister v. Hade, 52 constitution, the whole subject was

Penn. St. 474; Ahl
v. Gleim, 52

Penn. St. 432; Selsby

v. Redlon,

Wis. 17; Parmelee v. Lawrence,

48 III. 331.

referred to the courts.
White, 105 Mass. 325.

White v.

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 executed 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 was not denied; and it cannot be doubted that a prior statute, authorizing the deed to be made to one for the benefit of all and with their assent, would have been open to no valid objection.1

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

1 See Davis v. State Bank, 7 Ind. 316, and Lucas v. Tucker, 17 Ind. 41, for decisions under statutes curing irregular sales by guardians and executors. In many of the States general laws will be found providing that such sales shall not be defeated

by certain specified defects and irrega larities.

2 Beach v. Walker, 6 Conn. 197 Booth v. Booth, 7 Conn. 350. An see Mather v. Chapman, 6 COLL 54; Norton v. Pettibone, 7 Conn. 31 Welch v. Wadsworth, 30 Conn. li

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 e. Merchand's Ex'rs, 7 S. & R. 200; Underwood v. Lilly, 10 S. & R. 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 III. 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 v. White, 105 Mass. 325.

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 exist ing 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. 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.

Schenley v. Commonwealth, 36 Penn. St. 29, 57. See also State v. Newark, 27 N. J. 185; Den v. Downam, 13 N. J. 135; People v. Seymour, 16 Cal. 332; Grim v. Weisenburg School District, 57 Penn. St. 433; State v. Union, 33 N. J. 355.

Under these circumstances

The legislature has the same power to ratify and confirm an illegally appointed corporate body that it has to create a new one. Mitchell v. Deeds, 49 Ill. 416.

2 Lewis v. McElvain, 16 Ohio, 347.