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 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 devest settled rights of property, and to take the property of one individual or corporation and transfer it to another." This reasoning is of course to be understood in the light of the particular case before the court; that is to say, a case in which the contract was to do something not within the ordinary functions of local government. See the case explained and defended by the same eminent judge in Mills v. Charlton, 29 Wis. 413. Compare Fisk v. Kenosha, 26 Wis. 26, 33, Knapp v. Grant, 27 Wis. 147, and Single v. Supervisors of Marathon, 38 Wis. 363, in which the right to validate a contract which might originally have been authorized was fully affirmed. And see Marshall v. Silliman, 61 Ill. 218, 225, opinion by Chief Justice Lawrence, in which, after referring to Harward v. St. Clair, &c. Drainage Co., 51 Ill. 130, People v. Mayor of Chicago, 51 Ill. 30, Hessler v. Drainage Com'rs, 53 Ill. 105, and Loving. ston v. Wider, 53 Ill. 302, it is said, "These cases show it to be the settled doctrine of this court, that, under the constitution of .1848, the legislature could not compel a municipal corporation to incur a debt for merely local purposes, against its own wishes, and this doctrine, as already remarked, has received the sanction of express enactment in our existing constitution. That was the effect of the curative act under consideration, and it was therefore void." 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 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. 408; People v. Mitchell, 35 N. Y. 551; Barbour v. Camden, 51 Me. 608; Weister v. Hade, 52 Penn. St. 474; State v. Sullivan, 43 Ill. 413; Johnson v. Campbell, 49 Ill. 316. 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 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. We have expressed doubts of the correctness of this decision, ante, pp. *230*231, note, where a number of cases are cited, bearing upon the point. 1 Bacon v. Callender, 6 Mass. 309: Butler v. Palmer, 1 Hill, 324; Cowgill v. Long, 15 Ill. 203; Miller *. Graham, 17 Ohio, N. s. 1; State v. Squires, 26 Iowa, 340; Patterson v. Philbrook, 9 Mass. 151. 2 Watson v. Mercer, 8 Pet. 88: Mather v. Chapman, 6 Conn. 54; Bristol v. Supervisors, &c., 20 Mich. 93; Satterlee v. Mathewson, 16 S. & R. 169, and 2 Pet. 380. 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; State c. Manning, 11 Tex. 402. 2 Rich v. Flanders, 39 N. H. 304. 3 State v. Norwood, 12 Md. 195. In Eaton 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, then, after the expiration or repeal of the law, no penalty could be enforced or punishment inflicted for a violation of the law committed while it was in force, unless some special provision of statute was made for that purpose. See also Schoouer 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; Union Iron Co. v. Pierce, 4 Biss. 327; Norris v. Crocker, 13 How. 129; Insurance Co. v. Ritchie, 5 Wall. 511; Ex parte McCardle, 7 Wall. 506; United States v. Tyner, 11 Wall. 88; Engle v. Shurtz, 1 Mich. 150. In the McCardle case the appellate jurisdiction of the United States Supreme Court in certain cases was taken away while a case was pending. Per Chase, Ch. J.: "Jurisdiction is power to declare the law; and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. This is not less clear upon authority than upon principle." But where a State has jurisdiction of a subject, e. g. pilotage, until Congress establishes regulations, and penalties are incurred under a State act, and afterwards Congress legislates on the subject, this does not repeal, but only suspends the State law; and a penalty previously incurred may still be collected. Sturgis v. Spofford, 45 N. Y. 446. 4 Kimball v. Rosenthal, (Sup. Ct. 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 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, 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 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 irregu larities. 2 Beach v. Walker, 6 Conn. 197 Booth v. Booth, 7 Conn. 350. And see Mather v. Chapman, 6 Cons 54; Norton v. Pettibone, 7 Conn. 313 Welch v. Wadsworth, 30 Conn. 115 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 o. Merchand's Ex'rs, 7 S. & R. 20; 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, 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. |