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A strong instance in illustration of legislative control over evidence will be found in the laws of some of the States in regard to conveyances of lands upon sales to satisfy delinquent taxes. Independent of special statutory rule on the subject, such conveyances would not be evidence of title. They are executed under a statutory power; and it devolves upon the claimant under them to show that the steps prescribed by statute have been regularly taken. But it cannot be doubted that this rule may be so changed as to make the deed prima facie evidence that all the proceedings have been regular, and that the purchaser has thereby acquired a complete title.1 The burden of proof is thereby changed from one party to the other; the legal presumption which the statute creates in favor of the purchaser being sufficient, in connection with the deed, in the absence of countervailing testimony, to establish his case. Statutes making defective records evidence of valid conveyances are of a similar character, and these usually, perhaps always, have reference to records before made, and provide for making them competent evidence where before they were in law merely void.2 But they divest no title, and are not even retrospective. They establish what the legislature regard as a reasonable and just rule for the presentation by the parties of their rights before the courts in the future.

But there are fixed bounds to the power of the legislature over this subject, which must not be exceeded. As to what shall be evidence, and who shall assume the burden of proof, its power is unrestricted, so long as its rules are impartial and uniform; but it has no power to establish rules which, under pretence of regulating evidence, altogether preclude a party from exhibiting his rights. Except in those cases which fall within the familiar doctrine of estoppel at the common law, or other cases resting upon similar reasons, it would not be in the power of the legislature to declare that a particular item of evidence should preclude a party from establishing his rights in opposition to it. In judicial investigations, the law of the land requires a trial; and there

Allen v.

1 Hand v. Ballou, 12 N. Y. 543; Delaplaine v. Cook, 7 Wis. 54; Armstrong, 16 Iowa, 508; Adams v. Beale, 19 Iowa, 61; Amberg v. Rogers, 9 Mich. 332; Lumsden v. Cross, 10 Wis. 289; Lacey v. Davis, 4 Mich. 140; Wright v. Dunham, 13 Mich. 414. The rule once established may be repealed, even as to existing deeds. Hickox v. Tallman, 38 Barb. 608.

2 Webb v. Den, 17 How. 577.

is no trial if only one party is suffered to produce his evidence. A statute making a tax deed conclusive evidence of a complete title, and precluding the original owner from showing its invalidity, would therefore be void as not a law regulating evidence, but an unconstitutional confiscation of property. And a law which should make the opinion of an officer conclusive evidence of the illegality of an existing contract would be equally nugatory,2 though perhaps, if parties should enter into a contract while such a law was in force, its provisions might properly be regarded as assented to and binding upon them.

Retrospective Laws.

As to the circumstances under which a man may be said to have a vested right to a defence, it is somewhat difficult to lay down a comprehensive rule. 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 right 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 under existing laws where defences are allowed upon contracts, or in respect to legal proceedings, which are based upon mere informalities, and where strict justice would sometimes justify the legislature in interfering to take away the defence, if it has the power to do

So.

1 Groesbeck v. Seeley, 13 Mich. 329; Case v. Dean, 16 Mich. 13; White v. Flynn, 23 Ind. 46. As to how far the legislature may make the tax deed conclusive evidence that mere irregularities have not intervened in the proceedings, see Smith v. Cleveland, 17 Wis. 556; and Allen v. Armstrong, 16 Iowa, 508. Undoubtedly the legislature may dispense with mere matters of form in the proceedings, as well after they have been taken as before; but this is quite a different thing from making tax deeds conclusive upon points material to the interest of the property owner. See, further, Wantlan v. White, 19 Ind. 470; People v. Mitchell, 45 Barb. 212.

"Young v. Beardsley, 11 Paige, 93.

Medford v. Learned, 16 Mass. 215. In this case it was held that where a pauper had received support from the parish, to which under the law he was entitled, a subsequent legislative act could not make him liable by suit to refund the cost of the support.

In regard to these cases, we think investigation will show that a party has no vested right in a defence based upon an informality not affecting his substantial interests. And this brings us to a more particular examination of a class of statutes which are constantly coming under the consideration of the courts, and which are known as retrospective laws.

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 facts making the different rulings applicable. There is no doubt of the right of the legislature to make laws 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 than their retrospective character. But legislation of this description is exceedingly liable to abuse; and it is a sound rule of construction to give a statute a prospective operation only, unless its terms show a legislative intent that it should have retrospective effect.1 And some of the States have deemed it important to forbid such laws altogether by their constitutions.2

1 Dash v. Vankleek, 7 Johns. 477; Norris v. Beyea, 13 N. Y. 273; Plumb v. Sawyer, 21 Conn. 351; Whitman v. Hapgood, 13 Mass. 464; Medford v. Learned, 16 Mass. 215; Ray v. Gage, 36 Barb. 447; Watkins v. Haight, 18 Johns. 138; Garrett v. Beaumont, 24 Miss. 377; Briggs v. Hubbard, 19 Vt. 86; Perkins v. Perkins, 7 Conn. 558; Hastings v. Lane, 3 Shep. 134; Guard v. Rowan, 2 Scam. 499; Sayre v. Wisner, 8 Wend. 661; Quackenbos v. Danks, 1 Denio, 128; Garrett v. Doe, 1 Scam. 335; Thompson v. Alexander, 11 Ill. 54; State v. Barbee, 3 Ind. 258; Allbyer v. State, 10 Ohio, N. S. 588; State v. Atwood, 11 Wis. 422; Bartruff v. Remey, 15 Iowa, 257; Tyson v. School Directors, 51 Penn. St. 9. And see Broom's Maxims, p. 33, and cases cited; Atkinson v. Dunlap, 50 Me. 111; Smith on Stat. & Const. Construction, ch. 7.

2 See the provision in the constitution of New Hampshire, considered in Woart v. Winnick, 3 N. H. 481; Clark v. Clark, 10 N. H. 386; and Rich v. Flanders, 39 N. H. 304; and that in the constitution of Texas, in De Cordova v. Galveston, 4 Texas, 470. The constitution of Ohio provides that "the General Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; provided, however, that the General Assembly may, by general laws, authorize the courts to carry into effect the manifest intention of parties and officers, by curing omissions, defects, and errors in instruments and proceedings, arising out of their want of conformity with the laws of this State, and upon such terms as shall be just and equitable." Under this clause it was held competent for the General Assembly to pass an act authorizing the courts to correct mistakes in deeds of married women previously executed, whereby they were rendered

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A retrospective statute curing defects in legal proceedings, where they are of the nature of irregularities only, and do not extend to matters of jurisdiction, is not void on constitutional grounds. 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; 2 irregularities in the votes or other action by municipal corporations, or the like, where a statutory power has failed of due execution, through carelessness of officers or other cause; irregular sessions of courts, &c.

We know of no better rule to apply to cases of this description than this: If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something which the legislature might have dispensed with the necessity of by prior statute, then a subsequent statute dispensing with it retrospectively must be sustained. And so if the defect consists in doing something which the legislature might have made immaterial by prior law, it may also be made immaterial by subsequent law.

In Kearney v. Taylor,3 a sale of real estate belonging to infant tenants in common was 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 then 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, ineffectual. Goshorn v. Purcell, 11 Ohio, N. S. 641. The constitution of Tennessee provides that no retrospective law shall be passed. It was held that a law authorizing a bill to be filed by slaves, by their next friend, to emancipate them, although it applied to cases which arose before its passage, was not a retrospective law within the meaning of this clause. Fisher's Negroes v. Dobbs, 6 Yerg.

119.

1 Butler v. Toledo, 5 Ohio, N. S. 225; Strauch v. Shoemaker, 1 W. & S. 175; McCoy v. Michew, 7 W. & S. 390; Montgomery v. Meredith, 17 Penn. St. 42; Dunden v. Snodgrass, 18 Penn. St. 151; Williston v. Colkett, 9 Penn. St. 38; Boardman v. Beckwith, 18 Iowa, 292. And see Walter v. Bacon, 8 Mass. 472; Locke v. Dane, 9 Mass. 360; Patterson v. Philbrook, 9 Mass. 153; Trustees v. McCaughy, 2 Ohio, N. S. 152.

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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. The act was conceded to be unobjectionable, and it cannot be doubted that a prior statute, authorizing the deed to be made to one of the purchasers for the benefit of all, and with their assent, would have been open to no objection.1

In certain Connecticut cases, transfers of real estate on execution were assailed as void, because the officer had included in his return several small items of fees not allowed by law. Subsequently the legislature passed an act providing that no levy should be deemed void by reason of the officer having included in his return 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 to perform that ceremony by the State law, and that the marriages were consequently void. The legislature 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, which it clearly was not as, it purported to settle no controversies, but merely to give effect to the desire of the parties, which they had already attempted to carry out through the invalid ceremony. And while it was admitted that the act might be valid to effectu1 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.

Beach v. Walker, 6 Conn. 197; Booth v. Booth, 7 Conn. 350. And see Mather v. Chapman, 6 Conn. 54; Norton v. Pettibone, 7 Conn. 319; Welch v. Wadsworth, 30 Conn. 149. See also Underwood v. Lilly, 10 S. & R. 97; Bleakney v. Bank of Greencastle, 17 S. & R. 64; Weister v. Hade, 52 Penn. St. 474; Ahl v. Gleim, 52 Penn. St. 432.

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