without due process of law; since they proceeded upon the assumption that the title still remained in the grantor, and that the healing act was required for the purpose of divesting him of it, and passing it over to the grantee. There is some apparent force, therefore, in the objection that such a statute deprives a party of vested rights. But the objection is more specious than sound. If all that is wanting to a valid contract or conveyance is the observance of some legal formality, the party may have a legal right to avoid it; but this right is coupled with no equity, even though the case be such that no remedy could be afforded the other party in the courts. The right which the healing act takes away in such case is the right in the party to avoid his contract, a naked legal right, which it is usually unjust to insist upon, and which no constitutional provision was ever designed to protect.1 As put by Chief Justice Parker of Massachusetts, a party cannot have a vested right to do wrong;2 or as stated by the Supreme Court of New Jersey, "laws curing defects which would otherwise operate to frustrate what must be presumed to be the desire of the party affected, cannot be considered as taking away vested rights. Courts do not regard rights as vested contrary to the justice and equity of the case." 3

The operation of these cases, however, must be carefully confined to the parties to the original contract, and to such other persons as only occupy the same position with no greater equities. Subsequent bona fide purchasers cannot be divested of the property which they have acquired, by a retrospective act changing the legal position of their grantor in regard to the thing purchased. While an invalid deed may be made good as between the parties, yet if, while it remained invalid, and the grantor still retained the legal title to the land, a third person had purchased and received a conveyance of the land, with no notice of any fact which should

1 Gibson v. Hibbard, 13 Mich. 215; State v. Norwood, 12 Md. 195. In the first of these cases a check, void at the time it was given for want of a revenue stamp, was held valid after being stamped under a subsequent act of Congress permitting it. And see Harris v. Rutledge, 19 Iowa, 389, where the same ruling was made. The Maryland case was still stronger, as there the curative statute was passed after judgment had been rendered against the right claimed under the defective instrument, and it was held that it must be applied by the appellate

court.

2 Foster v. Essex Bank, 16 Mass. 245.

State v. Newark, 3 Dutch. 197.

preclude his acquiring an equitable as well as a legal title thereby, it would not be in the power of the legislature to divest him of his title through confirmation of the original deed. The position of the case is altogether changed by this purchase. The legal title is no longer separated from equities, but in the hands of the second purchaser is united with an equity as strong as that which exists in favor of him who purchased first. Under such circumstances even the courts of equity must recognize the right of the second purchaser as best, and it is secure against legislative interference.1

We have already referred to the case of contracts by municipal corporations which, when made, were in excess of their authority, but subsequently have been confirmed by legislative action. If the contract was one which the legislature might originally have authorized, the case falls within the rule we have laid down, and the legislative action is to be sustained.2 Some of the cases where municipal subscriptions in aid of railroads were held valid were cases where the original undertaking was without authority of law, and was confirmed by retrospective act of legislation.3

It has not commonly been regarded as a matter of importance whether the enabling act was before or after the corporation had entered into the contract; and if the legislature possesses that complete control over the subject of taxation by municipal corporations which has been declared in many cases, it is difficult to see how such a corporation can successfully contest the validity of a special statute which only sanctions a contract before made by the

1 Brinton v. Seevers, 12 Iowa, 389; Southard v. Central R. R. Co., 2 Dutch. 22; Thompson v. Morgan, 6 Minn. 292; Meighen v. Strong, 6 Minn. 177. These cases must not be understood as establishing any different principle from that laid down in Goshen v. Stonington, 4 Conn. 209, where it was held competent to validate a marriage, notwithstanding the rights of third parties would be incidentally affected. Rights of third parties are liable to be incidentally affected in any case where a defective contract is made good; but this is no more than might happen in enforcing a contract or decreeing a divorce. Such incidental injuries give no right to complain. It is only one who has acquired vested rights who can claim the protection of the law.

2 Shaw v. Norfolk Co. R. R. Corp., 5 Gray, 180.

McMillan v. Boyles, 6 Iowa, 330; Gould v. Sterling, 23 N. Y. 457; Thompson v. Lee County, 3 Wal. 327; Bridgeport v. Housatonic R. R. Co., 15 Conn. 475; Board of Commissioners v. Bright, 18 Ind. 93.

corporation ject

and which, though ultra vires, was for a public oband compels its performance through taxation.1

1 In Hasbrouck v. Milwaukee, 13 Wis. 37, it appeared that the city of Milwaukee had been authorized to contract for the construction of a harbor, at an expense not to exceed $ 100,000. A contract was entered into by the city providing for a larger expenditure; and a special legislative act was afterwards obtained to ratify it. The court held that the subsequent legislative ratification was not sufficient, proprio vigore, and without evidence that such ratification was procured with the assent of the city, or had been subsequently acted upon or confirmed by it, to make the contract obligatory upon the city. The court say, per Dixon, Ch. J.: "The question is, can the legislature, by recognizing the existence of a previously void contract, and authorizing its discharge by the city, or in any other way, coerce the city against its will into a performance of it, or does the law require the assent of the city as well as of the legislature in order to make the obligation binding and efficacious? I must say that, in my opinion, the latter act, as well as the former, is necessary for that purpose, and that without it the obligation cannot be enforced. A contract void for want of capacity in one or both of the contracting parties to enter into it is as no contract; it is as if no attempt at an agreement had ever been made. And to admit that the legislature, of its own choice, and against the wishes of either or both of the contracting parties, can give it life and vigor, is to admit that it is within the scope of legislative authority to divest settled rights of property, and to take the property of one individual or corporation and transfer it to another." This reasoning, it seems to us, would have required a different decision in many of the cases which we have heretofore cited. The cases of Guilford v. Supervisors of Chenango, 18 Barb. 615, and 13 N. Y. 143; Brewster v. Syracuse, 19 N. Y. 116; and Thomas v. Leland, 24 Wend. 65, especially go much further than is necessary to sustain legislation of the character we are now considering. In Brewster v. Syracuse, parties had constructed a sewer for the city at a stipulated price, which had been fully paid to them. The charter of the city forbade the payment of extra compensation to contractors in any case. The legislature afterwards passed an act empowering the Common Council of Syracuse to assess, collect, and pay over the further sum of $ 600 in addition to the contract price; and this act was held constitutional. In Thomas v. Leland, certain parties had given bond to the State, conditioned to pay into the treasury a certain sum of money as an inducement to the State to connect the Chenango Canal with the Erie at Utica, instead of at Whitestown as originally contemplated, the sum mentioned being the increased expense in consequence of the change. Afterwards the legislature, deeming the debt thus contracted by individuals unreasonably partial and onerous, passed an act, the object of which was to levy the amount on the owners of real estate in Utica. This act seemed to the court unobjectionable. "The general purpose of raising the money by tax was to construct a canal, a public highway, which the legislature believed would be a benefit to the city of Utica as such; and independently of the bond, the case is the ordinary one of local taxation to make or improve a highway. If such an act be otherwise constitutional, we do not see how the circumstance that a bond had before been given securing the same money can detract from its validity. Should an individual volunteer to secure a sum of money, in itself properly leviable

In none of the cases to which we have referred is it of any importance that the legislative act which cures the defect was passed after suit brought in which the invalidity was sought to be taken advantage of. The bringing of suit vests no right to a particular decision; and the case must be determined on the law as it stands when the judgment is rendered. It has been held that a statute allowing amendments to indictments in criminal cases might constitutionally be applied to cases then pending; and it has also been decided that a statute changing the rules of evidence might be applied to pending suits, even under a constitution which forbade retrospective laws. And if a case is appealed, and the law is changed pending the appeal, the appellate court must decide according to the law in force when their decision is rendered.5

But the healing statute must in all cases be confined to validating acts which the legislature might previously have authorized.

by way of tax on a town or county, there would be nothing in the nature of such an arrangement which would preclude the legislature from resorting, by way of tax, to those who are primarily and more justly liable. Even should he pay the money, what is there in the constitution to preclude his being reimbursed by a tax?" Here, it will be perceived, the corporation was compelled to assume an obligation which it had not even attempted to incur, but which private persons, for considerations which seemed to them sufficient, had taken upon their own shoulders. And while we think the case of Hasbrouck v. Milwaukee is not in harmony with the current of authority on this point, we also think the case of Thomas v. Leland may be considered as going to the opposite extreme.

1 Bacon v. Callender, 6 Mass. 309; Butler v. Palmer, 1 Hill, 324.

2 Watson v. Mercer, 8 Pet. 88; Mather v. Chapman, 6 Conn. 54. State v. Manning, 11 Texas, 402.

Rich v. Flanders, 39 N. H. 304.

5 State v. Norwood, 12 Md. 195. But see Hedger v. Rennaker, 3 Met. (Ky.) 255. In Yeaton v. United States, 5 Cranch, 281, a vessel had been condemned in admiralty, and, pending an appeal, the act under which the condemnation was declared was repealed. The court held that the cause must be considered as if no sentence had been pronounced; and if no sentence had been pronounced, it has long been settled on general principles that, after the expiration or repeal of a law, no penalty can be enforced nor punishment inflicted for violation of the law committed while it was in force, unless some special provision be made for that purpose by statute. See also Schooner Rachel v. United States, 6 Cranch, 329; Commonwealth v. Duane, 1 Binney, 601; United States v. Passmore, 4 Dall. 372; Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v. Kimball, 21 Pick. 373; Hartung v. People, 22 N. Y. 100. See also People v. Seymour, 16 Cal. 332, for a decision sustaining a law which precluded parties from taking advantage of informalities in a tax.

It cannot make good retrospectively acts which it had previously no power to permit. There lies before us at this time a volume of statutes of one of the States, in which are contained laws 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; a failure in the supervisor to sign the certificate attached to the roll; a failure in the voters of the township to designate, as required by law, in a certain vote by which they had assumed the payment of bounty moneys, whether they should be raised by tax or loan; corrections made in the roll by the supervisor after it had been delivered to the collector; the including by the supervisor of a sum to be raised for township purposes without the previous vote of the township, as required by law; adding to the roll a sum to be raised which could not be lawfully levied by taxation without previous legislative authority; the failure of the supervisor to make out the roll within the time required by law; and the accidental omission of a parcel of land which should have been embraced by the roll. In each of these cases, except the last, the act required by law which failed to be performed might by previous legislation have been dispensed with; and perhaps in the last case there might be question whether the roll was avoided by the omission referred to, and, if it was, whether the subsequent act could cure it.1 But if township officers should assume to do acts under the power of taxation which could not lawfully be justified as an exercise of that power, no subsequent legislation could make them good. If a part of the property or persons of a township were assessed at one rate and a part at another, there would be no such apportionment as is essential to taxation, and the roll would be beyond the reach of a curative act. And if persons or property were assessed for tax

1 See Billings v. Detten, 15 Ill. 218, and Thames Manufacturing Co. v. Lathrop, 7 Conn. 550, for cases where curative statutes were held not effectual to reach defects in tax proceedings. As to what defects may and what may not be cured by subsequent legislation, see Allen v. Armstrong, 16 Iowa, 508, and Smith v. Cleveland, 17 Wis. 556. In Tallman v. Janesville, 17 Wis. 71, the constitutional authority of the legislature to cause an irregular tax to be reassessed in a subsequent year, where the rights of bona fide purchasers had intervened, was disputed ; but the court sustained the authority as "a salutary and highly beneficial feature of our systems of taxation," and "not to be abandoned because in some instances it produces individual hardships."