Retrospective Laws.

Regarding the circumstances under which a man may be said to have a vested right to a defence against a demand made by another, it is somewhat difficult to lay down a comprehensive rule which the authorities will justify. It is certain that he who has satisfied a demand cannot have it revived against him, and he who has become released from a demand by the operation of the statute of limitations is equally protected. In both cases the demand is gone, and to restore it would be to create a new contract for the parties, a thing quite beyond the power of legislation. So he who was never bound, either legally or equitably, cannot have a demand created against him by mere legislative enactment. But there are many cases in which, by existing laws, defences based upon mere informalities are allowed in suits upon contracts, or in respect to legal proceedings, in some of which a regard to substantial justice would warrant the legislature in interfering to take away the defence if it possesses the power to do so.

In regard to these cases, we think investigation of the authorities will show that a party has no vested right in a defence based upon an informality not affecting his substantial equities. And this brings us to a particular examination of a class of statutes which is constantly coming under the consideration of the courts, and which are known as retrospective laws, by reason of their reaching back to and giving to a previous transaction some different legal effect from that which it had under the law when it took place.

1 Ante, p. 448, note, and cases cited. 2 Albertson v. Landon, 42 Conn. 209. 8 In Medford v. Learned, 16 Mass. 215, it was held that where a pauper had received support from the parish, to which by law he was entitled, a subsequent legislative act could not make him liable by suit to refund the cost of the support. This case was approved and followed in People v. Supervisors of Columbia, 43 N. Y. 130. See ante, p. 444 and note; Towle v. Eastern R. R., 18 N. H. 547. A right of action may not be given against a husband to a creditor of the wife upon her contract. Addoms v. Marx, 50 N. J. L. 253. A railroad company cannot be made responsible for the coroner's inquest and burial of persons dying on the cars, or killed by collision or other accident occurring to the cars, &c., irrespective of any wrong or negligence of the company or

its servants. Ohio & M. R. R. Co. v. Lackey, 78 Ill. 55. Absolute liability, irrespective of negligence, cannot be imposed on a railroad company for stock killing. Cottrel ». Union Pac. Ry. Co., 21 Pac. Rep. 416 (Idaho); Bielenberg v. Montana N. Ry. Co., 20 Pac. Rep. 314 (Mont.). In Atchison, &c. R. R. Co. v. Baty, 6 Neb. 37; s. c. 29 Am. Rep. 356, it is held incompetent to make a railroad company liable to double the value of stock accidentally injured or destroyed on the railroad track. But the contrary was held in Missouri Pac. Ry. Co. v. Humes, 115 U. S. 512. In such cases attorney's fees may be allowed. Peoria, D. & E. Ry. Co. v. Duggan, 109 Ill. 537. But see Wilder v. Chicago & W. M. Ry. Co., 38 N. W. Rep. 289 (Mich). See cases on above points, post, 713, note, 1.

There are numerous cases which hold that retrospective laws are not obnoxious to constitutional objection, while in others they have been held to be void. The different decisions have been based upon diversities in the facts which make different principles applicable. There is no doubt of the right of the legislature to pass statutes which reach back to and change or modify the effect of prior transactions, provided retrospective laws are not forbidden, eo nomine, by the State constitution, and provided further that no other objection exists to them than their retrospective character.1 Nevertheless, legislation of this character is exceedingly liable to abuse; and it is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively. And some of the States have deemed it just and wise to forbid such laws altogether by their constitutions.3

1 Thornton v. McGrath, 1 Duvall, 349; Aldridge v. Railroad Co., 2 Stew. & Port. 199; s. c. 23 Am. Dec. 307; State v. Squires, 26 Iowa, 340; Beach v. Walker, 6 Conn. 190; Schenley v. Commonwealth, 36 Pa. St. 57; Shonk v. Brown, 61 Pa. 320; Lane v. Nelson, 79 Pa. St. 407.

2 Dash v. Van Kleeck, 7 Johns. 477; s. c. 5 Am. Dec. 291; Sayre v. Wisner, 8 Wend. 661; Watkins v. Haight, 18 Johns. 138; Bay v. Gage, 36 Barb. 447; Norris v. Beyea, 13 N. Y. 273; Drake v. Gilmore, 52 N. Y. 389; Quackenbush v. Danks, 1 Denio, 128 Hapgood v. Whitman, 13 Mass. 464; Medford v. Learned, 16 Mass. 215; Gerry v. Stoneham, 1 Allen, 319; Kelley v. Boston, &c. R. R. Co., 135 Mass. 448; Perkins v. Perkins, 7 Conn. 558; s. c. 18 Am. Dec. 120; Plumb v. Sawyer, 21 Conn. 351; Hubbard v. Brainerd, 35 Conn. 563; Sturgis v. Hull, 48 Vt. 302; Briggs v. Hubbard, 19 Vt. 86; Hastings v. Lane, 15 Me. 134; Torrey v. Corliss, 32 Me. 333; Atkinson v. Dunlop, 50 Me. 111; Rogers v. Greenbush, 58 Me. 395; Guard v. Rowan, 3 Ill. 499; Garrett v. Doe, 2 Ill. 335; Thompson v. Alexander, 11 Ill. 54; Conway v. Cable, 37 Ill. 82; In re Tuller, 79 Ill. 99; Knight v. Begole, 56 Ill. 122; McHaney v. Trustees of Schools, 68 Ill. 140: Hatcher v. Toledo, &c. R. R. Co., 62 Ill. 477; Harrison v. Metz, 17 Mich. 377; Thomas v. Collins, 58 Mich 64; Danville v. Pace, 25 Gratt. 1; Cumberland, &c. R. R. Co. v. Washington Co. Court, 10 Bush, 564; State v. Barbee, 3 Ind. 258; State v. Atwood, 11

Wis. 422; Bartruff v. Remey, 15 Iowa, 257; Knoulton v. Redenbaugh, 40 Iowa, 114; Allbyer v. State, 10 Ohio St. 588; Colony v. Dublin, 32 N. H. 432; Ex parte Graham, 13 Rich. 277; Garrett v. Beaumont, 24 Miss. 377; Clark v. Baltimore, 29 Md. 277; Williams v. Johnson, 30 Md. 500; State v. The Auditor, 41 Mo. 25; State v. Ferguson, 62 Mo. 77; Merwin v. Ballard, 66 N. C. 398; Tyson v. School Directors, 51 Pa. St. 9; Haley v. Philadelphia, 68 Pa. St. 45; s. c. 8 Am. Rep. 153; Baldwin v. Newark, 38 N. J. 158; Warshung v. Hunt, 47 N. J. L. 256; McGeehan v. State Treasurer, 37 La. Ann. 156; State v. Pinckney, 22 S. C. 484; Richmond v. Supervisors, 83 Va. 204. This doctrine applies to amendments of statutes. Ely v. Holton, 15 N. Y. 595. If no vested right is disturbed, a retroactive effect may be given a statute, though the language does not render it necessary, provided such is the clear intent. People v. Spicer, 99 N. Y. 225.

3 See the provision in the Constitution of New Hampshire, considered in Woart v. Winnick, 3 N. H. 473; s. c. 14 Am. Dec. 384; Clark v. Clark, 10 N. H. 380; Willard v. Harvey, 24 N. H. 344; Rich v. Flanders, 39 N. H. 304; and Simpson v. Savings Bank, 56 N. H. 466; and that in the Constitution of Texas, in De Cordova v. Galveston, 4 Tex. 470; and that in the Constitution of Missouri, in State v. Hernan, 70 Mo. 441; State v. Greer, 78 Mo. 188. The provision covers only civil, not criminal cases. State v. Johnson, 81 Mo.

A retrospective statute curing defects in legal proceedings where they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on constitutional grounds, unless expressly forbidden. Of this class are the statutes to cure irregularities in the assessment of property for taxation and the levy of taxes thereon; irregularities in the

organization or elections of corporations; irregularities in the votes or other action by municipal corporations, or the like, where a statutory power has failed of due and regular execution through the carelessness of officers, or other cause; 2 irregular proceedings in courts, &c.3

The rule applicable to cases of this description is substantially the following: If the thing wanting or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.

A few of the decided cases will illustrate this principle. In Kearney v. Taylor a sale of real estate belonging to infant tenants in common had been made by order of court in a partition 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 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

of course, if the vice is in the nature of the tax itself, it will continue and be fatal, however often the process of assessment may be repeated. See post, p. 470.

1 Syracuse Bank v. Davis, 16 Barb. 188; Mitchell v. Deeds, 49 Ill. 416; People v. Plank Road Co., 86 N. Y. 1.

2 See Menges v. Wertman, 1 Pa. St. 218; Yost's Report, 17 Pa. St. 524; Bennett v. Fisher, 26 Iowa, 497; Allen v. Archer, 49 Me. 346; Commonwealth v. Marshall, 69 Pa. St. 328; State v. Union, 33 N. J. 350; State v. Guttenberg, 38 N. J. 419; Mut. Ben. Life Ins. Co. v. Elizabeth, 42 N. J. 235; Rogers v. Stephens, 86 N. Y. 623; Unity v. Burrage, 103

U. S. 447. By the Constitution of Missouri, the legislature is forbidden to legalize the unauthorized or invalid acts of any officer or agent of the State, or of any county or municipality. Art. 4 § 53.

3 Lane v. Nelson, 79 Pa. St. 407; Tilton v. Swift, 40 Iowa, 78; Supervisors Wisconsin Cent. R. R. Co., 121 Mass. 460 ; Cookerly v. Duncan, 87 Ind. 332; Muncie Nat. Bank v. Miller, 91 Ind. 441; Johnson v. Com'rs Wells Co., 107 Ind. 15. See cases post, 471, note 2.

4 15 How. 494. And see Boyce v. Sinclair, 3 Bush, 261; Weed v. Donovan, 114 Mass. 181.

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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 unaffected. In the leading case the court say: "The law, undoubtedly, 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 consequence they are eminently just, and so is the act confirming the levies. A law, although it be retrospective, if conformable to entire justice, this court has repeatedly decided is to be recognized and enforced." 2

In another Connecticut case it appeared that certain marriages had been celebrated by persons in the ministry who were not empowered by the State law to perform that ceremony, 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 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

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 irregularities.

2 Beach v. Walker, 6 Conn. 190, 197. See Booth v. Booth, 7 Conn. 350; Mather

2. Chapman, 6 Conn. 54; Norton v. Pettibone, 7 Conn. 319; Welch v. Wadsworth, 30 Conn. 149; Smith v. Merchand's Ex'rs, 7 S. & R. 260; Underwood v. Lilly, 10 S. & R. 97; Bleakney ». Bank of Greencastle, 17 S. & R. 64; Menges v. Wertman, 1 Pa. St. 218; Weister ». Hade, 52 Pa. St. 474; Ahl v. Gleim, 52 Pa. St. 432; Selsby v. Redlon, 19 Wis. 17; Parmelee c. Lawrence, 48 Ill. 331.