intended that the statute should operate in that manner; but if the intention to have the statute apply to such cases is established, judged by the principles of constitutional construction previously deduced, there can be no doubt that the statute can be made to apply to such cases, even when its application will have the effect of depriving the widow of her dower, at common law, without succeeding in vesting in her the greater estate, intended by the statute to take the place of the dower at common law. But a statute, which simply provided for the enlargement of the dower at common law into an estate in fee could not be construed, when applied to estates that have been granted away, so as to deprive the wife of her common-law dower; for the dower at common law would be abolished inferentially from the enlargement of the estate by the operation of the statute; and since the statute cannot apply to such cases, because it would infringe upon the vested rights of the purchaser, the wife's dower in the lands of the husband's purchaser would remain unchanged at common law. It is probable that the Indiana court was in error in not placing this construction upon the statute in question.

In all of the Western States, the public domain, either of the United States or of the respective States, is offered for sale and settlement, under general statutes, containing more or less minute provision for its survey, location, and the issue of certificates of purchase and of patents. Until an intending purchaser has had the land, which he has selected for his purchase, surveyed and located, and has received his certificate of purchase, he has acquired no vested rights in the lands; and a law which withdraws from sale the lands which he has selected, would, under these circumstances, constitute no interference with vested rights.1

1 Looney v. Bagley (Tex.), 7 S. W. 360; State v. Cunningham, 88 Wis. 81.

But every future interest in property is not an interest in expectancy. A vested estate of future enjoyment is as much a vested right as an estate in possession.1 Vested remainders and reversions are, therefore, vested rights, and cannot be changed or abolished by statute. We have already discussed the character of a remainder or reversion after an estate tail, and have concluded that they are vested rights, not subject to legislative change or modification.' If the remainder or reversionary interest were contingent, the conclusion would possibly be different.3

But is a contingent remainder, a contingent use or a conditional limitation, so far an interest in expectancy, that it may be defeated by subsequent legislation? In those cases in which the interest is contingent, because the person who is to take the contingent estate is not yet born, it may be reasonable enough to claim that the interest is not a vested right. Until one is born, or at least conceived, he cannot be considered as the subject of rights under the law. He certainly cannot have a vested right in or to anything. A statute might very properly destroy such a contingent interest. This class of cases may possibly include also those, in which the contingency arises from an uncertainty as to which of two or more living persons shall be entitled to take, as where the limitation is to the heirs of a living person. No man's heirs can be ascertained until his death, although one may be the presumptive or apparent heir of another. The heir presumptive or apparent cannot be said to have a vested right to such an estate, in the sense in which the term "vested right" is employed in the law of real property; but the same may be

1 Cooley Const. Lim. 440. See ante, § 184.

See ante, § 184.

• See to that effect, Varble v. Phillips (Ky.), 20 S. W. 306.

• The term "conditional limitation" is here employed as a general term, including shifting uses and executory devises. See Tiedeman on Real Prop., §§ 281, 398, 418, 536, 537.

said of any contingent interest, whether it be a remainder, a use, or a conditional limitation. The person, who is to take the estate upon the happening of the contingency, can in none of these cases claim to have a vested estate in the land; but may not the expectant owner of the contingent interest claim to have a vested, indefeasible right to the estate, whenever the contingency happens? Even in the law of real property, where the term "vested estate" is used in an extremely technical sense, the contingent remainderman, as well as the expectant owner of a shifting use or executory devise, is deemed to be so far possessed of vested rights in the estate as to be able, at least in equity, to make a valid assignment of the interest.1 It would seem, therefore, that the interest in such cases would be so far a vested right that it would be beyond the reach of legislative interference. Another reason may be assigned why a statute could not operate to destroy such contingent interests, viz.: that, being created by act of the owner of the property instead of arising by operation of law, its subsequent taking effect in possession does not depend upon the continuance of the present laws. A change in the law can only operate to defeat the contingent estate, by imposing upon the owner a prohibition against doing with the estate what he could. do without the aid of law. In all the common examples of interests in expectancy, which have been changed or abolished by statute, the interest is the creature of positive law, and does not vest upon any act of disposition of the owner of the land. Its taking effect in possession must consequently depend upon the continued existence of the law, which authorizes and creates it. The repeal of the law, before it vests, does not operate retrospectively, in defeating the inchoate estate. But a law would most certainly operate retrospectively, making that unlawful or impossible which was possible and lawful when it was done, which

1 Tiedeman on Real Prop., §§ 411, 530.

changes or destroys the interest of a contingent remainderman, or executory devisee. Being retrospective, it will be void if it infringes any vested right, even though it does not amount to a "vested estate," as the term is understood in the law of real property. It has been held recently by the Supreme Court of South Carolina, that a statute, which prohibits the destruction of contingent remainders and uses by the employment of the common law feoffment and livery of seisin was not void, as interfering with any vested right, if the statute operated to protect from destruction the continued estates which were in existence at the time that the statute was enacted.1

Another interesting question is, how far powers of appointment may be changed or abolished by statute. A law would act retrospectively, if it were made to avoid the deed or grant of a power of appointment, and, if it interfered with vested rights, would be unconstitutional. A special power of appointment to appoint the estate to certain persons, under certain conditions and in accordance with directions given, would give to these beneficiaries a vested right to the exercise of the power in their favor, within the restrictions and limitations imposed by the donor; and the donee of the power cannot suspend or extinguish the power by a release.2 It would be reasonable to claim that no statute could be so framed as to change or destroy such a power, because it would interfere with vested rights. But where the power was general, the donee having the power to appoint to whom he pleases, there is certainly no vested right to the exercise of the power in the person or persons to whom he might ultimately appoint the estate. But he would have an absolute right to the exercise of the power, either for himself or in trust for others; and this vested right would be violated by a statute, which either took away the power, or imposed upon its exer

1 People's Loan & Exchange Bank v. Garlington, 54 S. C. 413. 2 Tiedeman on Real Prop., § 561.

cise limitations that did not exist at the time when the power was created, and which have the effect of materially reducing the value of the power. Such a statute would consequently be unconstitutional and void.

§ 136. Limitation of the right of acquisition. - One of the incidental rights of private property in lands is the right to acquire land. Land being the free gift of nature, the regulation of it by the government must be directed in the interest of all, and as everyone is guaranteed by the constitution the equal protection of the law, and inequality or partiality in the bestowal of privileges is prohibited, everyone may be said to have an indefeasible right to acquire land, by complying with the general laws, which have been enacted for regulating its disposition. As long as there is a public domain, everyone has a right to buy of the government, if he pays the price asked for the land. But where all the public lands have been taken up, the only way left open for the subsequent acquisition of land is by purchase from other private owners. If no one is willing to sell, one's right to acquire lands has in no way been violated. But if a seller can be found, any law which would interfere with the purchase, that is, prohibit a particular person or class of persons from acquiring any property in land whatever, would be an unconstitutional violation of a right which belongs to every citizen. Thus an ordinance was held to be unconstitutional by the Supreme Court of Texas, which absolutely prohibited any prostitute or lewd woman from residing in, or inhabiting any room, house, or place in the city, and forbade the leasing of any such premises to such a person. Even a chronic breaker of the laws has a right to possess a lodging-house. He has no right to purchase or lease a house for the purpose of prosecuting his criminal or nefarious trade; but even though

1 Milliken v. City Council, 54 Texas, 388 (38 Am. Rep. 629).