
                                 CHAPTER V.
		 THE IMPAIRMENT OF THE OBLIGATION OF CONTRACTS.

 56. The prohibition affects only state laws.
 57. The term "law" defined.
 58. Judgments of state courts not conclusive either as to the
     non-existence or non-impairment of contracts.
 59. The obligation of a contract defined.
 60. Legislation as to remedies.
 61. The term "contracts" defined.
 62. State insolvent laws.
 63. Judgments as contracts.
 64. Municipal taxation.
 65. History of the prohibition.
 66. State grants.
 67. Express contracts of exemption from taxation.
 68. Express grants of peculiar privileges.
 69. Contracts between a state and its political subdivisions.
 70. Implied contracts in charters of incorporation.
 71. Implied corporate exemption from taxation.
 72. Implied grants of peculiar privileges.
 73. Exemption from the operation of the police power.
 74. Contracts as to matters of public concern.
 75. The withdrawal by a state of its consent to be sued.
 76. The force and effect of the prohibition as construed by the Supreme     
     Court.

The prohibition affects only state laws.
56. Section 10 of Article I of the Constitution declares that "no
state shall . . . pass any . . . law impairing the obligation of
contracts. This prohibition does not in terms affect the exercise of
legislative power by the government of the United States, and not
only is there not in the Constitution any similar prohibition with
regard to the United States, but by the grant of power to Congress,
"to establish uniform laws on the subject of bankruptcies throughout
the United States," (1) authority is expressly conferred to impair
the obligation of contracts between debtors and creditors; (2) and
under the doctrine of the implied powers, as construed by the court,
Congress may impair the obligation of contracts by authorizing the
issue of notes which shall be a legal tender in satisfaction of
antecedently contracted debts.(3) The constitutional prohibition is
likewise inoperative with regard to the acts of any political
organization which at the time of the adoption of the act in
question is not one of the United States; thus, the Constitution
having, under the resolution of the Convention of 1787 and the Act
of Congress of February, 1788, gone into effect on the first
Wednesday of March, 1789, a statute enacted by the state of Virginia
in 1788 was not affected by the constitutional prohibition.(4) So,
also, a statute enacted by the republic of Texas before its
admission into the United States as the state of Texas could not be
held to be void for repugnancy to this clause of the
Constitution.(5)

The term "law" defined.
57. The prohibition of the passage by a state of any "law impairing
the obligation of contracts," would, if strictly construed, include
under the word "law" only statutes enacted by state legislatures,
but it has been determined that the word "law " comprehends, in
addition to acts of legislation, state constitutions and
constitutional amendments;(6) judicial decisions of state courts of
last resort, rendered subsequently to the making of the contract in
question, and antecedently to the suit in which the court
determines the invalidity of the contract, and altering by
construction the constitution and statutes of the state in force
when the contract was made;(7) and, in general, any act or order,
from whatever source emanating, to which a state, by its enforcement
thereof, gives the force of a law; as, for instance, a by-law or
ordinance of a municipal corporation(8) or a statute enacted by the
congress of the Confederacy, and enforced during the war of the
rebellion by a court of a state within the insurgent lines.(9)
Obviously the law, which is alleged to have impaired the obligation
of the contract must have been enacted subsequently to the making of
the contract, for a law enacted antecedently to the making of the
contract can be said to have entered into, and become part of, the
contract.(10) The judgment of the state court in the cause,
determining the particular contract to be invalid, cannot be said to
be a law impairing the obligation of the contract, for otherwise the
federal court of last resort would be called upon to "re-examine
the judgments of the state courts in every case involving the
enforcement of contracts." As Harlan, J., said, in L. W. Co. v.
Easton,(11) "The state court may erroneously determine questions
arising under a contract, which constitute the basis of the suit
before it; it may hold a contract to be void, which, in our opinion,
is valid; it may adjudge a contract to be valid, which, in our
opinion, is void; or its interpretation of the contract may, in our
opinion, be radically wrong; but, in neither of such cases, would
the judgment be reviewable by this court under the clause of the
Constitution protecting the obligation of contracts against
impairment by state legislation, and under the existing statutes
defining and regulating its jurisdiction, unless that judgment in
terms, or by its necessary operation, gives effect to some provision
Of the state constitution, or some legislative enactment of the
state, which is claimed by the unsuccessful party to impair the
obligation of the particular contract in question." (12) It must,
therefore, appear in any cause in which it is sought to reverse in
the Supreme Court of the United States, a decree or judgment of a
state court for contravention of the constitutional prohibition of
the impairment of contracts, that in the particular case the state
court enforced to the prejudice of the plaintiff in error some act
of state, either in the form of a state constitution, or an act of
the state legislature, or a judgment of a court in another case, or
an act of an extrinsic authority to which the state by its adoption
thereof gave the force of law, and that the act of state, whatever
its form, was, as affecting the contract, put into operation
subsequently to the making of the contract.

Judgments of state courts not conclusive either as to the
non-existence or non-impairment of contracts.

58. In questions under this clause of the Constitution the courts of
the United States do not accept as conclusive upon them the judgment
of the state court either as to the non-existence of contracts or as
to their nonimpairment,(13) for, if the decision of the state court
were to be accepted without inquiry or examination, the
constitutional probibition would be nugatory.

The obligation of a contract defined.
59. The obligation of a contract is the duty of performance which
the law imposes on one, or other, or both, of the parties to the
contract.(14) As Marshall, C. J., said in the case cited, "Any law
which releases a part of this obligation must in the literal sense
of the word impair it." The application of the constitutional
prohibition is not dependent on the extent of the impairment of
vested rights."(15)

Legislation as to remedies.
60. A state may, without impairment of the obligation of a contract,
regulate, or even limit, the remedies for the enforcement of that
contract, provided that it does not take away all remedies therefor,
and that it leaves in force a substantial remedy.(16) Thus a state
may, in the case of a corporation whose charter requires that
service of process on the corporation shall be made only at its
principal office, provide by subsequent legislation that such
process may be served on any officer, clerk, or agent of the
corporation.(17) A state may abolish imprisonment for debt as a
remedy for breach of contract; (18) it may validate technically
defective Mortgages, (19) or conveyances by femes covert ;(20) it
may by statute grant new trials and create new tribunals to set
aside grants or reverse judgments alleged to be fraudulent;(21) it
may provide speedy and equitable methods for determining the title
to lands under patents granted by the state;(22) it may authorize at
the request of all parties in interest the discharge of testamentary
trustees of real estate ; (23) it may change the rate of interest to
be paid to the purchaser in the case of the redemption of mortgaged
premises sold under foreclosure; (24) it may repeal usury laws which
unrepealed would have avoided the contract; (25) it may prescribe a
scheme for the reorganization of an embarrassed corporation and
provide that creditors who have notice of, and do not dissent from,
the scheme shall be bound thereby;(26) it may reduce the limitation
of time for bringing suit provided that a reasonable limit elapses
after the enactment before the limitation bars a suit upon existing
contracts;(27) it may require registration as a prerequisite to the
legal enforcement of existing mortgages, provided that a reasonable
period be allowed before the law goes into effect; (28) it may
require holders of tax sale certificates to give notice to the
occupant of the land, if any there be, before taking a tax deed;
(29) it may require registration with municipal officials of
judgments against a municipality;(30) it may provide that a city
shall not be sued until the claim has been presented to the city
council and disallowed by it, and that, thereupon, an appeal to
court, if made, shall be made within a limited time;(31) it may free
shareholders of a corporation from individual liability for debts of
the corporation to an amount greater than their shares, for such
legislation does not impair the direct liability of the
corporation;(32) it may, after a state bank has obtained judgment
against a party, authorize that party to set off against the
judgment circulating notes of the bank procured by him after the
entry of the judgment;(33) it may, after judgment has been obtained,
reduce the rate of interest thereafter to accrue on that
judgment;(34) and, a disseised tenant for years being entitled to
sue on the landlord's covenant for quiet possession and also on a
statutory remedy for forcible entry and detainer, the state may take
away the statutory remedy, provided that the action on the covenant
be left unimpaired.(35) A state, having issued bonds, and having by
a subsequent statute provided for the funding of those bonds on
certain terms at a reduced rate of interest, may, by a later
statute, prohibit the funding of a specified class of those bonds
until by judicial decree their validity shall have been determined,
for the original remedy of the bondholder is not thereby impaired
.(36) So also, a state, which has contracted to receive its taxes in
the notes of a certain bank, may, by statute, provide that the only
remedy for taxpayers whose tender of such notes may be refused shall
be to pay in legal money and within a time limited to bring suit
against the tax collector, judgment against whom shall be a
preferred claim against the state. (37) So also where the laws of a
state permit coupons of state bonds to be received in payment of
state taxes, provided that in case of the refusal of such coupons
when tendered the holder thereof might enforce his rights under the
contract by suing out an alternative mandamus against the officer
refusing the coupons, and if judgment should be rendered in favour
of the holder of the coupons that he could then have forthwith a
peremptory writ of mandamus for the recovery of damages and costs,
the obligation of the contract was not impaired by a subsequent
statute which required, in case of the refusal of the tender of the
coupons, a payment of the state taxes in lawful money, and a lodging
of the coupons in a state court of competent jurisdiction, and the
subsequent framing of an issue to determine whether or not the
coupons were genuine and legally receivable for taxes, with a right
of appeal to the state court of last resort.(38)

         On the other hand, a state, in acting upon the remedy,
cannot take away all, or a substantial part, of the power for the
enforcement of a contract. It, therefore, cannot forbid its courts
to entertain jurisdiction of a suit to enforce, or obtain damages
for the breach of, a class of contracts legally valid when made;(39)
nor can a state forbid its courts, after the abolition of slavery,
to take jurisdiction of actions upon contracts made before that
abolition and the consideration for which was the of slaves; (40)
nor could a state, after the restoration of peace, declare void a
contract made between its citizens during the war of the rebellion
stipulating for payment in confederate notes;(41) nor can a state,
after the making of a contract, change to the prejudice of either
party the measure of damages for its breach;(42) nor can a state, by
subsequent legislation, impose as a condition precedent to the legal
enforcement of a contractual right, that he who seeks to enforce
that right shall prove an extrinsic and independent fact that has no
necessary connection with the right to be enforced, as, for
instance, that he never bore arms in support of, or never aided, the
rebellion against the United States;(43) or that he has paid certain
taxes; nor can it permit the defendant to set off damages not caused
by the plaintiff, as, for instance, the defendant's loss of property
resulting from the war of the rebellion;(44) nor can a state, after
a judgment has been enrolled, materially increase the debtor's
exemption;(45) nor can a state after the making of a mortgage
enlarge the period of time allowed for the redemption after
foreclosure; (46) nor forbid a sale in foreclosure at which less
than two-thirds of the value of the mortgaged premises as fixed by
appraisement shall be realized ;(47) nor take away the right to
compound interest, if given by the law existing at the time of the
making of the contract;(48) nor repeal a statute in force at the
time of making the contract which renders the stock of a shareholder
liable for the debts of the corporation;(49) nor materially change
the rules of evidence which were in existence when the contract was
made.(50)

The term "contracts" defined.
61. The term "contracts," as used in the constitutional prohibition,
includes both executory and executed contracts,(51) comprehending,
within the former class, promisory notes and bills of exchange,(52)
corporate bonds,(53) municipal bonds, (54) and municipal contracts
for the payment of the salaries of their employees (55) and,
generally, all legally enforcible contracts to do, or not to do, any
particular act; and, within the latter class, grants and judgements
founded upon contracts, (56) but not judgements founded upon
torts;(57) nor is marriage a contract which may not be impaired by
divorce legislation.(58) There can be no impairment of the
obligation of a contract which has not been legally made. (59) Thus
a vote of the majority of the qualified voters of a country at an
election held under a statute incorporating a railway and
authorizing an issue of the bonds of the county in payment for the
stock of the railway, if the qualified voters so decide it, does not
constitute a contract whose obligation would be impaired by an
amendment of the state constitution, (60) or by a repeal of the
statute,(61) before the subscription be made or the bonds issued.
So, also bonds which are fraudulently put into circulation by a
state treasurer after they have been declared void by the state
constitution cannot impose any liability upon the state.(62) And a
contract which is void because its execution is beyond the powers of
the municipality(63) or county (64) attempting its execution cannot
irrevocably bind the municipality or county. Moreover a state cannot
enter into an irrepealable contract by a conveyance of property in
disregard of a public trust under which it is bound to hold and
manage that property, as in the case of a conveyance of soil under
navigable waters.(65) On the same principle, a state statute which
is void by reason of repugnancy to the Constitution of the United
States cannot constitute a contract of exemption from state
taxation; as, for instance, a statute imposing taxation on national
banks to an extent not permitted by the National Banking Act, and,
therefore, a subsequent state statute imposing on national banks a
taxation which, though a heavier burden than that imposed by the
earlier statute, is yet within the limits permitted by the National
Banking Act, does not impair the obligation of any contract.(66) On
the same principle, statutory exemption from state taxation, if
granted in violation of the constitution of the state, does not bind
the state as a contract.(67)

State insolvent laws.
62. There was, for some time, a controversy as to the effect of the
constitutional prohibition upon state insolvent laws. In Sturges v.
Crowminshield,(68) the action being brought in a federal court
within the state of Massachusetts, and the plaintiff being a citizen
of Massachusetts, and the defendant a citizen of New York, it was
held that discharge under an insolvent law of New York, enacted
subsequently to the making within that state of a contract to be
performed within the state, was void as an impairment of the
obligation of that contract. In McMillan v. McNeill,(69) the action
being brought in a court of the state of Louisiana, the plaintiff
and defendant both being citizens of South Carolina, and the
contract having been made and stipulated to be performed in that
state, it was held that a discharge under an antecedently-enacted
law of Louisiana impaired the obligation of the contract, and as no
bar to its enforcement. In F. & M. Bank v. Smith (70) the action
being brought in a court of the state of Pennsylvania, and both
plaintiff and defendant being residents of that state, and the
contract having been made, and to be performed, in that state, it
was held that a discharge under a subsequently enacted insolvent law
of that state was no bar to the action. In Ogden v. Saunders(71) the
plaintiff being a Citizen of Kentucky and the defendant a citizen of
New York, the contract having been made in New York to be performed
in that state, action having been brought in a federal court in the
state of Louisiana, it was held that a discharge under an
antecedently-enacted insolvent law of the state of New York was no
bar to the action; and in Shaw v. Robbins,(72) the same ruling was
made, the action being brought in a court of the state of Ohio the
plaintiff being a citizen of Massachusetts, the defendant a citizen
of New York, and the discharge set up being one that had been
obtained under an antecedently-enacted insolvent law of the
last-mentioned state. In Boyle v. Zacharier(73) Story, J., said,
"The effect of the discharge under the insolvent act is of course
at rest, so far as it is covered by the antecedent decisions made by
this court. The ultimate opinion delivered by Mr. Justice Johnson in
the case of Ogden v. Saunders,(74) was concurred in and adopted by
judges, who were in the minority upon the the three general question
of the Constitutionality of state insolvent laws, so largely
discussed in that case, and(75) Marshall, C. J., expressed the same
view as to the effect of the judgment in Ogden v. Saunders. In
Sudyam v. Broadnax,(76) the action having been brought in a court of
the state of Alabama, the plaintiff being a citizen of New York, it
was held that a judicial declaration of the insolvency of a
decedent's estate under the terms of an antecedently-enacted statute
of Alabama was powerless to discharge a contract made by the
decedent in his lifetime in New York and stipulated to be performed
in that state. In Cook v. Moffat,(77) the action being brought in a
federal court in the state of Maryland, the plaintiff being a
citizen of New York and the defendant a citizen of Maryland, and the
contract having been made in New York to be performed in that state,
it was held that a discharge under an antecedently-enacted statute
of Maryland was no bar to the action. In Baldwin v. Hale,(78) the
action having been brought in a federal court in the state of
Massachusetts, the plaintiff being a citizen of Vermont and the
defendant a citizen of Massachusetts, and the contract having been
made in Massachusetts, to be performed in that state, it was held
that a discharge under an antecedently-enacted statute of
Massachusetts did not bar the action. The result of the cases is,
that a discharge under the insolvent laws of a state is not a bar to
an action on a contract for the payment of money, first: when the
law under which the discharge has been granted has been enacted
subsequently to the making of the contract;(79) second: when,
although the discharge has been granted under a law enacted
antecedently to the making of the contract, the contract was made
in another state to be performed in that other state; (80) third:
when, although the discharge has been granted under a law enacted
antecedently to the making of the contract, and although the
contract was made and to be performed in the state in which the
discharge has been granted, the action upon the contract is brought
in another state, by a party who is not a citizen of the state
granting the discharge, and who has not made himself a party to the
proceedings in insolvency; (81) and fourth, when, although the
discharge has been granted under a law enacted antecedently to the
making of the contract, and although the contract was made and to be
performed in the state in which the discharge has been granted, the
action upon the Contract is brought in the state granting the
discharge by one who is not a citizen of that state, and who has not
made himself a party to the proceedings in insolveney.(82) The
questions, as yet not concluded by the authority of the court, are
as to the effect of the discharge as regards creditors, who, though
not citizens of the state granting the discharge, voluntarily become
parties to the insolvency proceedings, or, who, being citizens of
the state granting the discharge, and being duly notified of the
insolvency proceedings, neglect or refuse to become parties thereto.

Judgments as contracts.
63. Contracts for the payment of money being within the protection
of the constitutional prohibition of the impairment of their
obligation, judgments upon such contracts are equally entitled to
protection.(83) Therefore, a judgment against a municipal
corporation founded upon a breach of contract is not affected by a
subsequent legislative abolition of the municipality's power to levy
taxes for the payment of its debts.(84) But the rights of a judgment
creditor are not impaired by a state statute reducing the rate of
interest thereafter to accrue upon existing judgments;(85) nor are
judgments founded upon torts contracts whose obligation will be
protected against subsequent legislation.(86)

Municipal taxation.
64. A state cannot take away from a municipality existing powers of
taxation so as to deprive of his compensation an officer who has
served his term.(87) County bonds issued by public officers under
authority of law either upon the subscription, or upon the agreement
to subscribe, to the stock of a railway constitute a contract
between the county and the bondholders, whose obligation cannot be
impaired by a subsequent legislative repeal of the statute
authorizing the subscription, or by a subsequent amendment to the
state constitution prohibiting such a subscription.(88) But where
public officers are by statute authorized to issue bonds in aid of
railway construction only upon the fulfilment of a condition
precedent which is not fulfilled before the adoption of an amended
state constitution prohibiting the issue of such bonds there is no
eontract whose obligation is impaired by the adoption of the state
constitution.(89) On the same principle, a statutory authorization
of borrowing of money by a municipality is not a contract between
the state and the municipal creditors whose obligation can be
impaired by the subsequent exercise by the state of the power of
modifying the rate of taxation or of exempting certain property from
taxation,(90) but a state cannot dissolve an existing municipal
corporation having a bonded debt, for 'Whose payment powers of
taxation have been granted and specifically pledged, for that
dissolution interferes with the exercise of such power of
taxation."' Nor can a state withdraw or restrict the taxing power
of a municipality so as to impair the obligation of contracts which
have been made on the pledge, express or implied, that that taxing
power shall be exercised for their fulfilment.(92) A statutory
prohibition of the issuing by the courts of the state of a mandamus
to compel the levying of a tax for the payment of the interest upon,
or the principal of, municipal bonds, whose issue had been legally
authorized, impairs the contract between the municipality and the
bondholder.(93) In general, the statutory authorization of the
contracting by a munieipality of an extraordinary debt by the issue
of negotiable securities therefor conclusively implies a power in
the municipality to levy taxes sufficient to pay the accruing
interest upon, and the matured principal of, the debt, unless the
statute conferring the authority, or the constitution of the state,
or some general law in force at the time, clearly manifests a
contrary legislative intent.(94)

History of the prohibition.
65. It has never been doubted that contracts between individuals
were protected by the constitutional provision, but it was formerly
a matter of grave doubt whether or not contracts to which a state
was a party were likewise entitled to protection. The history of the
Constitution shows clearly that the mischiefs which the framers of
the Constitution intended to remedy by this prohibition were,
primarily, those caused by state legislation enabling debtors to
discharge their debts otherwise than as stipulated in their
contracts, and that the prohibition was not intended by its
originators to interfere with the exercise of state sovereignty in
cases of other than private contracts. This restriction on the power
of the states is not to be found in either Mr. Pinckney's, Mr.
Hamilton's, or Mr. Paterson's projets as presented to the
convention, nor is it implied in Mr. Madison's resolutions, nor does
it appear in the draft reported by the Committee of Five on 6th
August, 1787; but when Article XIII of the report of that committee
was under consideration on 28th August, Mr. King "moved to add in
the words used in the ordiance of Congress establishing new states,
a prohibition on the states to interfere in private contracts," but,
on motion of Mr. Rutledge, as a substitute for Mr. King's
proposition, there was adopted a prohibition of state bills of
attainder and ex post facto laws.(95). The journal of the convention
mentions Mr. Rutledge's motion, but omits all reference to Mr.
King's proposition. Mr. Madison reports Mr. King's resolution, with
the mention of declarations of opinion in favour of it by Messrs.
Sherman, Wilson and Madison, and objections to it by Messrs.
Gouverneur Morris and Mason, on the ground that state laws limiting
the times within which actions might be brought necessarily
interfered with contracts, and ought not to be prohibited, and that
there might be other cases in which such interferences would be
proper. There does not seem to be any record of any other discussion
of this subject in the convention. The Committee of Revision
reported on 12th September, 1787, to the convention their revised
draft of the Constitution, in which Article 1, Section 10, declares
"No state shall . . . pass any . . . laws altering or impairing the
obligation of contracts." In convention on Friday, 14th September,
1787, the clause was finally amended and put into the form in which
it appears in the Constitution, there being, so far as is known, no
debate on the subject, save by Mr. Gerry, who "entered into
observations inculcating the importance of the public faith and the
propriety of the restraint put on the states from impairing the
obligation of contracts," and unavailingly endeavoured to obtain the
insertion in the Constitution of a similar restraint upon
congressional action. 6 Mr. Bancroft states,"' with reference to the
Committee of Revision's report, that "Gouverneur Morris retained the
clause forbidding ex post facto laws - and resolute not to
countenance the issue of paper money and the consequent violation of
contracts,' (98) he of himself added the words, "No state shall pass
laws altering or impairing the obligation of contracts."(99) Mr.
Bancroft also quotes from the official report to the Governor of
Connecticut made by Roger Sherman and Oliver Ellsworth, the deputies
from that state to the Federal Convention, wherein they say, "The
restraint on the legislatures of the several states respecting
emitting bills of credit, making anything but money a tender in
payment of debts, or impairing the obligation of contracts by ex
post facto laws, was thought necessary as a security to commerce, in
which the interest of foreigners, as well as of the citizens of
different states, may be affected." The clause does not appear to
have been made a subject of discussion in any of the state
conventions called to ratify the Constitution. Mr. Hamilton, when
Secretary of the Treasury, said in his memorandum of 28th May, 1790,
to President Washington on the subject of the resolutions of
Congress with regard to the arrears of pay due to certain soldiers
of the Revolution,(100) "The Constitution of the United States
interdicts the states individually from passing any law impairing
the obligation of contracts. This, to the more enlightened part of
the community, was not one of the least recommendations of that
Constitution. The too frequent intermeddlings of the state
legislatures, in relation to private contracts were extensively
felt, and seriously lamented; and a Constitution which promised a
prevention, was, by those who felt and thought in that manner,
eagerly embraced." Mr. Madison said in the Federalist,(101) "Bills
of attainder, ex post facto laws, and laws impairing the obligation
of contracts, are contrary to the first principles of the social,
compact, and to every principle of sound legislation. The two former
are expressly prohibited by the declarations prefixed to some of the
state constitutions, and all of them are prohibited by the spirit
and scope of these fundamental charters. Our own experience has
taught us, nevertheless, that additional fences against these
dangers ought not be omitted. Very properly, therefore, have the
convention added this constitutional bulwark in favour of personal
security and private rights; and I am much deceived, if they have
not, in so doing, as faithfully consulted the genuine sentiments as
the undoubted interests of their constituents. The sober people of
America are weary of the fluctuating policy which has directed the
public councils. They have seen with regret and with indignation,
that sudden changes, and legislative interferences, in cases
affecting personal rights, become jobs in the hands of enterprising
and influential speculators, and snares to the more industrious and
less informed part of the community. They have seen, too, that one
legislative interference is but the first link of a long chain of
repetitions; every subsequent interference being naturally produced
by the effects of the preceding. They very rightly infer, therefore,
that some thorough reform is wanting, which will banish speculations
on public measures, inspire a general prudence and industry, and
give a regular course to the business of society." In Sturges v.
Crowninshield,(102) Marshall, C. J., said "The fair, and, we think,
the necessary construction of the sentence requires that we should
give these words their full and obvious meaning. A general
dissatisfaction with that lax system of legislation which followed
the war of our revolution undoubtedly directed the mind of the
convention to this subject. It is probable that laws, such as those
which have been stated in argument, produced the loudest complaints,
were most immediately felt. The attention of the convention,
therefore, was particularly directed to paper money, and to acts
which enabled the debtor to discharge his debt otherwise than as
stipulated in the contract. Had nothing more been intended, nothing
would have been expressed. But, in the opinion of the convention,
much more remained to be done. The same mischief might be effected
by other means.

To restore public confidence completely, it was necessary not only
to prohibit the use of particular means by which it might be
effected, but to prohibit the use of any means by which the same
mischief might be produced. The convention appears to have intended
to establish a great principle, that contracts should be inviolable.
The Constitution, therefore, declares that no state shall pass 'any
law impairing the obligation of contracts.'"

State grants.
66. In 1810 the judgment in Fletcher v. Peck(103) established the
doctrine that contracts to which a state is a party are within the
protection of the constitutional prohibition. The facts in that case
were these: in 1795 the state of Georgia enacted a statute
authorizing the issue of a patent to "the Georgia Co." for a tract
of and in that state, and on 13th January, 1795, the patent was
issued. By sundry mesne conveyances before 1796 title in fee to a
part of the tract vested in Peck, who had purchased for value and
without notice of any matter which could invalidate the title of the
state's grantees. In 1796 the state of Georgia enacted a statute
repealing the Act of 1795 and annulling the patent to the Georgia
Co. On 14th May, 1803, Peck conveyed to Fletcher, covenanting, inter
alia, that his title had been "in no way constitutionally or legally
impaired by virtue of any subsequent act of any subsequent
legislature of the state of Georgia." Fletcher brought covenant sur
deed against Peck in the Circuit Court, declaring, inter alia, that
the statute of 1796 was enacted by reason of fraud practiced in
securing the enactment of the statute of 1795 and was an impairment
of Peck's title. Peck pleaded that he was a purchaser for value and
without notice, etc. Fletcher demurred, and the court entered
judgment thereon for Peck, which judgment was affirmed in the
Supreme Court on a writ of error, the ground of decision being, that
the constitutional prohibition comprehends contracts executed,
including grants, as well as contracts executory, and that the
states being prohibited from passing "any bill of attainder, ex post
facto law, or law impairing the obligation of contracts," and the
prohibition of bills of attainder and ex post facto laws being a
restraint upon governmental action, there is not to be implied "in
words which import a general prohibition to impair the obligation of
contracts, an exception in favour of the right to impair the
obligation of those contracts into which the state may enter. " It
has, therefore, since 1810, been settled that the term "contract-"
includes not only contracts between individuals, private and
corporate, but also contracts, executed and executory, between the
state and individuals, private and corporate. Following in the line
of Fletcher v. Peck, it has been held that, a grant of land by a
state to a railway corporation is a contract whose obligation is
impaired by a subsequent act resuming the land,(104) that a state
cannot deprive of his right to recover mesne profits from a
disseisor one whose title vested under a compact between that state
and another state, and who under that compact was entitled to
recover mesne profits,(105) and that a state cannot, by statute,
divest religious corporations of their title to land acquired under
colonial laws antecedently to the revolution.(106)

Express contracts of exemption from taxation.
67. When in I812 the case of New Jersey v. Wilson(107) came before
the Supreme Court, the doctrine of Fletcher v. Peck necessarily
required the eourt to hold that the state was bound by the express
contract contained in a statute which authorized the purchase of
certain land for the remnant of the tribe of Delaware Indians, and
which, in terms, declared that the land so purchased "shall not
hereafter be subject to any tax, and that that contract forbade the
subsequent taxation of such lands, after their sale to other
parties with the state consent. The legal inviolability of a
state's contract to exempt lands from state taxation having been
thus established, it followed that a similar contract with regard to
corporate franchises or assets was entitled to the like protection,
and that contracts of exemption from state taxation, contained in
corporate charters, or stipulated by subsequent agreement, if made
in express terms and supported by an adequate consideration,
constitute contracts so binding upon the state that their obligation
cannot be impaired by a subsequent repeal of the charter, or by an
imposition of a rate of taxation inconsistent with the state's
contract.(108) Thus, the line and rolling stock of a railway cannot
be taxed when its charter exempts from taxation its "property" and
"shares;"(109) nor can the shares of the capital stock of a
corporation be taxed in the hands of the shareholders, when the
charter requires the corporation to pay to the state a tax on each
share of the stock "in lieu of all other taxes;"(110) nor can the
gross receipts of a corporation be taxed when its charter exempts
the corporation from taxation;(111) nor can a corporation be taxed
in excess of the limits specifically designated in the charter,(112)
or other contract.(113) Nor can a municipal corporation, in the
exercise of authority delegated to it by statute, assess a street
railway for a new paving of a street, when the railway has
contracted with the municipality to keep the street in repair, for
the acceptance of that contract limits by necessary implication the
obligation of the railway to repairs, and relieves it from liability
for betterments;(114) nor can property held by a charitable
corporation as an investment be taxed, when its charter exempts from
taxation all property of whatever kind or description belonging to,
or owned by, the corporation.(115) An adequate consideration for a
charter exemption from taxation is to be found in the exercise by
the corporation of the powers conferred by the charter,(116), or,
in the case of corporations for charitable purposes, in the
contribution of funds to the corporation for the accomplisliment of
its benevolent purpose.(117) So also the building by a railway
corporation of its line, under the terms of a statute amendatory of
its charter and granting in express terms an exemption from
taxation, constitutes a consideration for the exemption, though the
original charter granted a power to the corporation, which it did
not exercise, to build the line.(118) Statutory exemptions from
state taxation not incorporated in charters and un-supported by a
consideration moving to the state, or from the exempted corporation,
do not constitute irrepealable contracts of exemption, but are
subject to modification repeal in the exercise of legislative
discretion; as, for instance, bounty laws offering such an exemption
as a inducement for the organization of corporations develop a
particular industry,(119) or voluntary grants exemption of the real
property of a charity from taxation.(120)

        If the constitution of a state prohibits legislative grants
of exemption from Estate taxation, such a grant, though accepted in
good faith by the exempted corporation, cannot constitute a contract
whose obligation is impaired by a subsequent imposition of
taxation.(121) Such a constutional prohibition operates to
extinguish an exemption made by contract in the case of a railway
which, havig been exempted before the adoption of the constitution
prohibition, had been after the adoption thereof so unde losure to
reorganize the corporation (122) the same principle, a statutory
consolidation of two railways works the dissolution of the original
corporation and subjects the consolidated corporation to the
operative of an amended state constitution, which took effect
subquently to the incorporation of the original corporation but
prior to their consolidation; and, therefore, the state legislature
may, without impairment of the obligation the contract, prescribe
rates for the transportation passengers by the consolidated
corporation, though one the original corporations was by charter
protected against such legislative regulation.(123) General
statutory prohibitions of the exemption of corporations from state
taxation are not binding on subsequent legislatures,(124) unless
referred to in, and incorporated with, subsequently granted
charters. (125) In the case of a statutory consolidation accepted by
two railways, each of whose charters contained a limited exemption
from taxation, a reservation by a general statute before the
enactment of the consolidating act and incorporated therewith,
operates to extinguish the limited exemption contained in the
original charters.(126) Of course, if the state in the charter
reserves the right to alter, modify, or repeal that charter, that
reservation authorizes any such amendment of the charter granted as
will not defeat nor substantially impair the obligation of the grant
or any rights that may (127) an be vested thereunder. The first
suggestion of any such reservation is to be found in the judgment
of Parsoms, C. J., in Wales v. Stetson,(128) which is cited by
Miller, J., in Greenwood v. Freight Co.(129) A provision in a
charter, or a general statute incorporated therewith, that that
charter shall not be alterable in any other manner than by an act of
the legislature, operates as a reserved power authorizing a
statutory amendment of the charter.(130) Express contracts of
exemption from state taxation are to be strictly construed.(131)
Thus a charter of a railway imposing an annual tax assessed on the
cost of the line, reserving the right to impose taxes on the gross
earnings of the corporation and stipulating that the above several
taxes shall be in lieu of other taxation, is not a contract whose
obligation is impaired by a subsequent statute taxing lands owned by
the railway and mortgaged as security for its bonded debt, but not
used in the construction or operation of its line.(132) So a
provision in the charter of a ferry company that it shall be subject
to the same taxes as are now or hereafter may be imposed on other
ferries," does not exempt the corporation from liability to pay an
annual license fee on each of its boats, under the requirements of a
municipal ordinance enacted under due legislative authority.(133) So
the charter of a street railway requiring the payment to the
municipality of semi-annual license as is now paid by other railway
companies, is to be construed to mean that the company shall not at
any future time be required to pay a greater license than that the n
required to be paid by other companies.(134) So a general exemption
of the property of a corporation from taxation is construed as
referring only to the property held for the transaction of the
business of the company.(135) And the exemption of the capital of a
corporation from taxation does not necessarily exempt its
stockholders from taxation on their shares of stock.(136) Nor does a
statute by which lands granted to a railway company are exempted
from taxation until such lands shall be sold and conveyed by that
company remain operative after the full equitable title has been
transferred by the railway.(137) A charter granting to a corporation
all the rights, powers, and privileges "granted by the charter" of
another corporation, confers an exemption from state taxation
contained, not in the charter to which reference is made, but in a
statute amendatory thereof, and the exemption thus conferred
constitutes a contract whose obligation cannot be impaired by a
subsequent repeal of the statute conferring by reference the right
of exemption.(138) So a state may make a contract conferring the
exclusive right of building a toll bridge by reference to a
previously enacted statute.(139) On the other hand, the
incorporation of a railway by a charter investing the company "for
the purpose of making and using the said road with all powers,
rights, and privileges, and subject to the disabilities and
restrictions that have been conferred and imposed upon" another
railway company, whose charter contained an express exemption from
taxation, does not confer that exemption on the former company.(140)
So in the case of the merger of a corporation having an exemption
from state taxation for a limited period with another corporation
having an unlimited exemption, the consolidating statute not
granting any exemption, the consolidated corporation cannot claim as
to property acquired from the first mentioned corporation any
exemption beyond the limits contained in the charter of that
corporation.(141) So also a grant of immunity from taxation will
not pass merely by a conveyance of the property and franchises of a
railroad company, although such company may hold its property exempt
from taxation.(142)

Express grants of peculiar privileges.
68. Express stipulations in a charter as to the privilege thereby
conferred on the corporation are also within the protection of the
constitutional prohibition; thus, a provision in the charter of a
toll bridge company that it shall not be lawful for any person to
erect another bridge within a specified distance of the bridge
thereby authorized, constitutes a contract binding the state not to
authorize the construction of such other bridge,(143) but the
authorization by the state of the construction of a rail way viaduct
does not impair the obligation of such a contract.(144) So, also, a
statute forbidding the transfer by any bank of any note, bill
receivable, or other evidence of debt, impairs the obligation of a
contract created by the grant in a charter of a bank of power to
receive, hold, and grant chattels and effects of what kind soever,
and to receive deposits and discount notes.(145) on the same
principle, a state is bound by its express contracts, not including
appointments to public-office, between th e state and an individual
for the performance of special services for a stipulated
compensation,(146) by its grants of franchises and exclusive
privileges, such as the privilege of supplying a municipality with
water,(147) or gas,(148), by its contracts conceeding peculiar
privileges to state obligations, as, for instance, stipulating that
coupons of state bonds should be receivable for taxes(149) or that
the circulating notes of a bank should be receivable in payment for
taxes,(150) or of other debts due to the state,(151) by contracts
made by a political subdivision of the state for the payment of the
principal of, or interest upon, the public debt of that sub-
division(152) and by the contracts of a corporation, whose sole
shareholder is the state, for the payinent of the corporate
debt.(153) Contracts between two or more states, under whicli
private rights have vested,(154) are so far protected that neither
state can annul or modify such contracts to the prejudice of the
private rights so vested.

Contracts between a state and its political subdivisions.
69. There can be no contract between a state and political
subdivision of a state, such as a municipality giving to the
municipality a vested right to property, for all such property
rights are held by the municipality in trust for the state, and are
subject to revocation at the state's pleasure" Therefore, a statute
imposing pecuniary penalty upon a railway, payable by it to county
of the state for its failure to locate the railway on a certain
line, does not constitute a contract between the county and the
railway whose obligation is impaired by subsequent repeal of the
statute.(156) On the same principle, a legislative charter of a
railway, granting to it power to appropriate public wharves erected
by a municipality under a prior legislative grant of authority, does
not impair the obligation of any contract, nor infringe upon the
rights of the municipality.(157) And a grant to a township of the
power of taxation is always subject to revocation, modification, and
control by the legislative authority of the state.(158)

Implied contracts in charters of incorporation.
70. The next mooted question under this clause of the Constitution
was whether or not a charter of incorporation granted by a state
constituted an implied contract on the part of the state, whose
obligation the state could not be permitted to impair by a
subsequent repeal or modification of the charter. The leading case
is Trustees of Dartmouth College v. Woodward,(159) judgment in which
was rendered in 1819, and the facts in which were that, in 1769, the
royal governor of the province of New Hampshire, acting in the name
of the king, granted to Dr. Wheelock and eleven other persons a
charter, whereby they were incorporated under the title of "The
Trustees of Dartmouth College," with perpetual succession, and with
"the whole power of governing the college, of appointing and
removing tutors, of fixing their salaries, of directing the course
of study to be pursued by the students, and of filling vacancies
created in their own body." After the charter had been granted to,
and accepted by, the corporation, "property both real and personal,
which had been contributed for the benefit of the college, was
conveyed to and vested in the corporate body." Acts of the
legislature of the state of New Hampshire, passed on 27th June, and
18th December, 1816, increased "the number of trustees to
twenty-one," gave "the appointment of the additional number to the
executive of the state," and created "a board of overseers, to
consist of twenty-five persons, of whom twenty-one are also
appointed by the executive of New Hampshire," with power to inspect
and control the most important acts of the trustees. Prior to the
enactment of these statutes, one Woodward was the secretary and
treasurer of the corporation, and, as such, he had in his possession
the charter, corporate seal, records, and certain chattels belonging
to the corporation; in 1816 the trustees removed him from office; in
1817 he was appointed secretary and treasurer of the now board of
trustees, which was organized under the statutes of 1816, and, as he
refused to surrender to the original corporation the property which
was in his hands, that corporation brought an action of trover in a
court of the state of New Hampshire against special verdict,
judgment was entered in favour of the defendant by the state court
of last resort, and the cause was removed by writ of error to the
Supreme Court of the United States, which reversed the judgment of
the state court, the ground of decision being that the college as
incorporated was a private eleemosynary corporation; that its
charter, in terms, and by force of the donations of funds made on
the faith of it, constituted a contract between the colonial
government and the corporation as the representative of the donors
of those funds; that it was an implied, but essential, condition of
that contract that that charter should not be so modified, without
the consent of the corporation, as to substitute governmental
control for the will of the donors; that, by the revolution, the
duties, as well as the powers, of government devolved on the people
of New Hampshire, and the obligations imposed by the charter were
the same under the state government as they had formerly been under
the colonial government; and that the effect of the statutes of was
to substitute the will of the state for the will of the donors, and,
to that extent, to impair the obligation of the contract between the
state and the corporation, as made by the charter. Marshall, C. J.,
in his judgment,(160) after accepting the suggestion, that "taken in
its broad, unlimited sense, the clause would be an unprofitable and
vexatious interference with the internal concerns of a state, would
unnecessarily and unwisely embarrass its legislation, and render
immutable those civil institutions, which were established for
purposes of internal government, and which, to subserve those
purposes, ought to vary with varying circumstances;" and "that as
the framers of the Constitution could never have intended to insert
in that instrument a provision so unnecessary, so mischievous, and
so repugnant to its general spirit the term 'contract' must be
understood in a more limited sense, "expressly conceded, that" the
framers of the Constitution did not intend to restrain the states
in the regulation of their civil institutions, adopted for internal
government, and that the instrument they have given us is not to be
so construed," and that "the provision of the Constitution never has
been understood to embrace other contracts, than those which respect
property, or some object of value, and confer rights which may be
asserted in a court of justice," put his judgment on the ground that
the charter of the college constituted a contract as hereinbefore
stated. Applying to the Dartmouth College Case, the test so clearly
stated by Marshall, C. J., in Ogden v. Saunders, (161) that "the
positive authority of a decision is coextensive with the facts on
which it is made," it is obvious that the case is an authority for
the proposition, that the grant by a state of a charter of
incorporation for private purposes unconnected with the
administration of government constitutes a contract between the
state and the corporation, whose obligation is not to be permitted
to be impaired by a material modification of the terms of the
charter, either expressed or implied, and that, in every such
charter it is an implied condition of the contract, that the state
shall not by subsequent legislation change either the purpose of the
corporation, or its system of administration.

Implied corporate exemption from taxation.
71. The later cases have narrowed the doctrine of the Dartmouth
College case with regard to the implied contracts created by
charters, and thereby made obligatory, on the states granting them.
In Providence Bank v. Billings,(162) it was decided, in 1830, that
the grant corporate privileges does not carry with it any implied
exemption of either the corporate franchise, or property, from
state taxation, and this principle has been re-asserted in the later
cases of M. G. Co. v. Shelby County,(163) N. M. R. v. Maguire,(164)
Bailey v. Maguire,(165) and Tucker v. Ferguson.(166) Following in
the same line, it has been held that the imposition in a charter of a
specific form or rate of taxation is not to be construed in the
absence an express contract of exemption from other taxation to
constitute an implied exemption from such other taxation;(167) and
that the grant to a corporation of the right to sell its franchises
does not entitle the vendee to exemption from taxation granted to
the vendor.(168)

Implied grants of peculiar privileges.
72. On the same principle, it has been held that legislative grants
of special or exclusive privileges are, in the interests of the
public, to be strictly construed, and do not vest in the grantee any
powers other than those expressly granted.(169) Thus, the charter of
a corporation by a state does not constitute a contract by the
state, either with the corporation or with the creditors thereof,
that the corporation shall not subsequently be dissolved after due
legal proceedings founded upon a forfeiture of the corporate
franchises either for misuser or for non-user.(170) So, also, the
creation of a corporation with the power to erect a toll bridge, or
to operate a ferry, does not impliedly bind the state not to license
the establishment of a competing bridge or ferry, either toll or
free.(171) The grant to a contractor of the sole privilege of
supplying a municipality with water -from a designated source is not
impaired by the grant to another party of the privilege of supplying
it with water from another source;(172) and a municipality which
has granted to a company the right to erect and operate an electric
lighting plant does not impair the obligation of the contract by
erecting a plant for itself.(173) Nor does the grant to a
quasi-public corporation of the right to sell its franchises by
implication extend to the vendee any exemption from rate regulation
which was possessed by its vendor;(174) nor may a vendee which is
exempt from such regulation claim exemption as to property which it
acquires from a company which was not exempt.(175)

Exemption from the operation of the police power.
73. There is no implied contract in a charter that the state will
exempt the corporate franchises and property from the operation of
such legislation as the state may deem necessary to secure the
welfare of its citizens.(176) The granting, therefore, of a charter
to an insurance company does not invalidate a subsequent statute
which requires that company to make a full return showing its
business condition to the proper officers of the state.(177) Nor can
a state surrender by implication the right to regulate by subsequent
legislation the location of railway, stations and the stoppage of
trains at those stations;(178) nor to require by such legislation
the fencing of all tracks used by railway companies within the
state.(179) Nor can a state by implication exempt a railway company
from liability in damages for fires caused by its locomotives,(180)
or for injury to property in the construction of its road.(181) On
the same principle, the grant of a franchise to a railway does not
preclude a municipality from making reasonable regulations as to
the use of its streets.(182) A state which, by charter, has
authorized a railroad to consolidate with other roads, may forbid
its future consolidation with competing roads.(183) A state may
place reasonable limitations upon the rates of fare and freight
charged by its railways.(184) It may, in the case of a railway whose
charter authorizes the company from time to time to fix, regulate
and receive tolls and charges, vest in a commission by a subsequent
statute the power of fixing those rates.(185) It may by statute
regulate the rates of a water corporation whose charter vested the
power of fixing the rates in a board of commissioners, some of whom
were appointed by the company.(186) And it has been said that where
a water company was organized under a statute which provided that
the commissioners should not reduce the rates below a given point,
the state may by subsequent statute authorize the commissioners to
reduce the rates below that point.(187) Indeed, while a state may,
by an express agreement,(188) bind itself not to regulate the rates
charged by a quasi-public corporation, such as a water-supply (189)
or street railway (190) company, a state cannot, even by an express
contract, bargain away its right to enact such legislation as may,
be necessary, to secure the safety or to protect the health or the
morals of its citizens. It may amend statutes which regulate the
construction of railroads within its limits.(191) It may forbid the
continued prosecution of their respective trades by corporations
chartered by it for the purpose of rendering dead animals into
fertilizers,(192) or manufacturing and selling liquors,(193) or
selling lottery tickets and drawing lotteries.(194) And, upon this
principle, it has also been held that a state may, in derogation of
a previous grant of the exclusive privilege of slaughtering cattle,
authorize others to conduct the same business.(195)

Contracts as to matters of public concern.
74. In Dartmouth College v. Woodward,96 Marshall, C. J., conceded
that "the framers of the Constitution did not intend to restrain a
state from the regulation of its civil institutions adopted for
internal government." On this principle, there can be no implied
contract on the part of a state that it will not amend its
constitution, in so far as that constitution deals with the
administration of the public concerns of the state. (197) Nor can a
state legislature bind subsequent legislatures as to the exercise
of the powers of sovereignty over the political subdivisions of the
state, and over its municipal corporations with regard to
subject-matters of public and not of private interest, as, for
instance, the location of a county seat,(198) or the boundaries of
its municipalities,(199) or the sale of property held by a
municipality for public purposes, such as water works,(200) or the
appropriation under state authority of municipal obligations by
their holders as a set-off against municipal claims against those
holders;(201) It nor does the appointment by the state of a public
officer for a fixed term for a stipulated compensation constitute a
contract between the state and the appointee whose obligation is
impaired by either the reduction of his compensation or his removal
from office,(202) but after the duties have been performed by the
appointee of a municipal corporation during the term of his office
there is a contract whose obligation is impaired by a subsequent
statute abolishing the power of taxation for the payment of his
compensation. (203) Of course, in the case of an officer appointed
under a statute which in terms defines the tenure of the office to
be according to law, a subsequent statute removing him is not an
impairment of the contract.(204)

The withdrawal by a state of its consent to be sued.
75. The state's consent to be sued being voluntary and of grace,
that consent does not constitute a contract whose obligation can be
impaired by a subsequent repeal of the statute permitting such
suit,(205) especially where the statute authorizing the suit has
provided no means for the enforcement of any judgment that may be
rendered against the state. Under such circumstances the state may,
by subsequent legislation, withdraw its consent to be sued.(206) In
this connection, that which was forcibly said by Mathews, J., in the
judgment of the court in the case of In re Ayers,(207) may well be
borne in mind. The learned judge said: "It cannot be doubted that
the XI Amendment to the Constitution operates to create an important
distinction between contracts of a state with individuals and
contracts between individual parties. In the case of contracts
between individuals, the remedies for their enforcement or breach,
in existence at the time they were entered into, are a part of the
agreement itself, and constitute a substantial part of its
obligation." That obligation ... cannot be impaired by any
subsequent legislation. Thus, not only the covenants and conditions
of the contract are preserved, but also the substance of the
original remedies for its enforcement. It is different with
contracts between individuals and a state. In respect to these, by
virtue of the XI Amendment to the Constitution, there being no
remedy by a suit against the state, the contract is substantially
without sanction, except that which arises out of the honour and
good faith of the state itself, and these are not subject to
coercion. Although the state may, at the inception of the contract,
have consented as one of its conditions to subject itself to suit,
it may subsequently withdraw that consent and resume its original
immunity, without any violation of the obligation of its contract in
the constitutional sense."(209) Yet, as was pointed out by Bradley,
J., in Hans v. Louisiana,'(210) 'where property or rights are
enjoyed under a grant or contract made by a state, they cannot
wantonly be invaded. Whilst the state cannot be compelled by suit to
perform its contracts, any attempt on its part to violate property
or rights acquired under its contracts may be judicially resisted;
and any law impairing the obligation of contracts, under which such
property or rights are held is void and powerless to affect their
enjoyment."

The force and effect of the prohibition as construed by the Supreme Court.
76. The force and effect of the prohibition, as construed by the
court, is, that a state may not, by any law or by any act to which
the state, by its enforcement thereof, gives the force of a law,
deprive a party of the legal right of enforcing, or obtaining
compensation for the breach of, an express contract, executed or
executory, between individuals, or between a state and individuals,
but a state may regulate or limit the remedies of the contracting
parties, provided that it leaves in force a substantial part of the
legal remedies which subsisted at the time of the making of the
contract.

(1) Article I, Section 9.

(2) Sturges v. Crowninshield, 4 Wheat. 122, 194. See also Hanover
Nat. Bank v. Moyses, 186 U. S. 181, 188; 30 Stat. 544, c. 541; 32
Stat. 797, c. 487.

(3) Supra, Chap. II.

(4) Owings v. Speed, 5 Wheat. 420.

(5) League v. De Young, 11 How. 185, 203. See also Scott v. Jones, 5
How. 343, 378.

(6) R. Co. v. McClure, 10 Wall. 511; White v. Hart, 13 id. 646; Gunn
v. Barry, 15 id. 610; County of Moultrie v. Rockingham T. C. S.
Bank, 92 U. S. 631; Edwards v. Kearzey, 96 id. 595; Keith v. Clark,
97 id. 454; N. 0. G. Co. v. L. L. Co., 115 id. 650; Fisk v.
Jeffersou Police Jury, 116 id. 131; Shreveport v. Cole, 129 id. 36;
Bier v. McGehee, 148 id. 137; Hanford v. Davies, 163 id. 273; H. &
T. C. Ry. v. Texas, 170 id. 243.

(7) Gelpcke v. Dubuque, 1 Wall. 175; Havemeyer v. Iowa Countv, 3 id.
294; Chicago v. Sheldon, 9 id. 50; The City v. Lamson, ibid. 477;
Olcott v. The Supervisors, 16 id. 678; Douglass v. County of Pike,
101 U. S. 677; County of Ralls v. Douglass, 105 id. 728; Pleasant
Township v. A. L. I. Co., 138 id. 67; Loeb v. Columbia Township
Trustees, 179 id. 472, 492; Wilkes County v. Coler, 180 id. 506.
This doctrine was first suggested by Taney, C. J., who said, in O.
L. I. & T. Co. v. Debolt, 16 How. 432: "The sound and true rule is,
that if the contract when made was valid by the laws of the state,
as then expounded by all the departments of its government and
administered in its courts of justice, its validity and obligation
cannot be impaired by any subsequent act of the legislature of the
state or decision of its courts, altering the construction of the
law;" and in Gelpcke v. Dubuque, 1 Wall. 206, Swayne, J., quoted the
dictum of Taney, C. J., and declared it to be "the law of this
court."

(8) Walla Walla v. W. W. W. Co., 172 U. S. 1; St. P. G. L. Co. v.
St. Paul, 181 id. 142; Detroit v. D. C. S. R.. 184 id. 368.

(9) Williams v. Bruffy, 96 U. S. 176; Ford v. Surget, 97 id. 594;
Stevens v. Griffith, Ill id. 48.

(10) L. W. Co. v. Easton, 121 U. S. 388, 391; Denny v. Bennett, 128
id. 489; Lake County v. Rollins, 130 id. 662; Pleasant Township v.
A. L. I. Co., 138 id. 67; Brown v. ;Smart, 145 id. 454; Bier v.
McGehee, 148 (13) State Bank v. Knopp, 16 How. 369; 0. L. 1. & T.
Co. v. Debolt, ibid. 416; Jefferson Branch Bank v. Skelly, 1 Bl.
436; Bridge Proprietors v. Hoboken Co., 1 Wall. 116; Delmas v. Ins.
Co., 14 id. 661; Wright v. Nagle, 101 U. S. 791; Willia ms v.
Louisiana, 103 id. 637; L. & N. R. v. Palmes, 109 id. 244; Pleasant
Township v. A. L. 1. Co., 138 id. 67; Bryan v. Board of Education, 1
51 id. 639; M. & 0. R. v. Tennessee, 153 id. 486; Shelby County v.
Union & Planters' Bank, 161 id. 149; Woodruff v. Mississippi, 162
id. 291; Douglas v. Kentucky, 168 id. 488; C., B. & Q. R. v.
Nebraska, 170 id. 57; McCullough v. Virginia, 172 id. 102; Walsh v.
C., H. V. & A. R., 176 id. 469; 1. C. R. v. Chicago, ibid. 646; H. &
T. C. R. v. Texas, 177 id. 66; Stearns v. Minnesota, 179 id. 223;
Board of Liquidation v. Louisiana, ibid. 622; F. W. Co. v. Freeport
City, 180 id. 587; St. P. G. L. Co. v. St. Paul, 181 id. 142; Wilson
v. Standefer, 184 id. 399; cf. Wagonner v. Flack, 188 id. 595. id.
137; P. I. Co. v. Tennessee, 161 id. 193; G. & S. 1. R. v. Hewes,
183 id. 66; Pinney v. Nelson, ibid. 144; D. G. Co. v. U. S. G. Co.,
187 id. 611; 0. W. Co. v. Oshkosh, 187 id. 437; Blackstone v.
Miller, 188 id. 189. See also C., M. & St. P. Ry. v. Solan, 169 id.
133; K. W. Co. v. Knoxville, 189 id. 434.

(11) 121 U. S. 388, 392.

(12) See also R. Co. v. Rock, 4 Wall. 177, 181; R. Co. v. McClure,
10 id. 511, 515; Knox. v. Exchange Bank, 12 id. 379, 383; Delmas v.
Ins. Co., 14 id. 661, 665; University v. People, 99 U. S. 309, 319;
C. L. I. Co. v. Needles, 113 id. 574; N. 0. W. W. v. L. S. Co., 125
id. 18; Kreiger v. Shelby R., ibid. 39; H. Bridge Co. v. Henderson
City, 141 id. 679; St. P., M. & M. Ry. v. Todd County, 142 id. 282;
Missouri v. Harris, 144 id. 210; Wood v. Brady, 150 id. 18; C. L.
Co. v. Laidley, 159 id. 103; Hanford v. Davies, 163 id. 273; Turner
v. Wilkes County Comrs., 173 id. 461; Wilkes County v. Coler, 180
id. 506; G. & S. 1. R. v. Hewes, 183 id. 66; N. 0. W. Co. v.
Louisiana, 185 id. 336; N. M. B. & L. Assn. v. Brahan, 193 id. 635.

(14) Sturges v. Crowninshield, 4 VV-heat. 197. See also Bedford v. E.
B. & L. Assn., 181 U. S. 227, 241.

(15) Green v. Biddle, 8 Wheat. 1. But where a charter authorizing
the consolidation of railways was modified by a statute prohibiting
the consolidation of competing roads before such consolidation had
been attempted, the court said: "Where the charter authorizes the
company in sweeping terms to do certain things which are unecessary
to the main object of the grant, and not directly and immediately
within the contemplation of the parties thereto, the power so
conferred, so long as it is unexecuted, is within the control of the
legislature and may be treated as a license, and may be revoked, if
a possible exercise of such power is found to conflict with the
interests of the public." "We cannot recognize a vested right to do
a manifest wrong:" Pearsall v. CG. N. Ry., 161 U. S. 646, 673, 675.
See also A. Ry. v. New York, 176 id. 335, 345.

(16) And it may, of course, grant an additional remedy: N. 0. C. &
L. R. v. New Orleans, 157 U. S. 219 ; Wagonner v. Flack, 188 id.
595. See also Wilson v. Standefer, 184 id. 399.

(17) R. Co. v. Hecht, 95 U. S. 168; C. M. L. I. Co. v. Spratley, 172
ia. 602.

(18) Mason v. Haile, 12 Wheat. 370; Penniman's ('age, 103 U. S. 714.

(19) Gross v. U. S. Mtge. Co., 108 U. S. 477.

(20) Randall v. Kreiger, 23 Wall. 137.

(21) League v. De Young, 11 How. 185.

(22) Jackson v. Lamphire, 3 Pet. 280.

(23) Williamson v. Suydam, 6 Wall. 723.

(24) C. M. L. 1. Co. v. Cushman, 108 U. S. 51; Hooker v. Burr, 194
id. 415.

(25) Ewell v. Daggs, 108 U. S. 143.

(26) Gilfillan v. U. C. Co., 109 U. S. 401.

(27) Terry v. Anderson, 95 U. S. 628; Barrett v. Holmes, 102 id.
651; Koshkonong v. Burton, 104 id. 668; In re Brown, 135 id. 701;
Wheeler v. Jackson, 137 id. 245. See also Wilson v. Iseminger, 185
id. 55; 0. W. Co. v. Oshkosh, 187 id. 437.

(28) Vance v. Vance, 108 U. S. 514.

(29) Curtis v. Whitney, 13 Wall. 68.

(30) Louisiana v. New Orleans, 102 U. S. 203.

(31) 0. W. Co. v. Oshkosh, 187 U. S. 437.

(32) Ochiltree v. R. Co., 21 Wall. 249.

(33) Blount v. Windley, 95 U. S. 173.

(34) Morley v. L. S. & M. S. Ry., 146 U. S. 162.

(35) Drehman v. Stifle, 8 Wall. 595.

(36) Guarantee Co. v. Board of Liquidation, 105 U. S. 622.

(37) Tennessee v. Sneed, 96 U. S. 69.

(38) Antoni v. Greenhow, 107 U. S. 769; Moore v. Greenhow, 114 id. 338.

(39) Van Hoffman v. Quincy, 4 Wall. 552.

(40) White v. Hart, 13 Wall. 646.

(41) Delmas v. Insurance Co., 14 Wall. 661-

(42) Effinger v. Kenney, 115 U. S. 566; W. & W. R. v. King, 91 id. 3.

(43) Pierce v. Carskadon, 16 Wall. 234.

(44) Walker v. Whitehead, 16 Wall. 314.

(45) Guinn v. Barry, 15 Wall. 610.

(46) Barnitz v. Beverly, 163 U. S. 118. See also Bradley v.
Lightcap, 195 id. 1; of. Hooker v. Burr, 194 id. 415.

(47) Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 id. 608;
Gantly v. Ewing, 3 id. 707.

(48) Koshkonong v. Burton, 104 U. S. 668 ; cf. Morley v. L. S. & M.
S. Ry., 146 id. 162.

(49) Hawthorne v. Calef, 2 Wall. 10.

(50) Bryan v. Virginia, 135 U. S. 685.

(51) "Contract" is, as Field, J., said in Louisiana v. Mayor of
New Orleans, 09 U. S. 285, 288, "used in the Constitution in its
ordinary sense as signifying the agreement of two or more minds for
consideration proceeding from one to the other to do or not to do
certain acts." In Sturges v. Crowninshield, 4 Wheat. 122, 197,
Marshall, C. J., said: "A contract is an agreement in which a party
undertakes to do or not to do a particular thing." Marshall, C. J.,
said, in Fletcher v. Peek, 6 Cr. 87, 136: "A contract is a compact
between two or more parties, and is either executory or executed. An
executory contract is one in which a party binds himself to do, or
not to do, a particular thing....A contract executed is one in which
the object of contract is performed, and this, says Blackstone,
differs in nothing from a grant....Since then, in fact, a grant is a
contract executed, the obligation of which still continues, and
since the Constitution uses the general term 'contracts,' without
distinguishing between those which are executory and those which are
executed, it must be construed to comprehend the latter as well as
the former." In Dartmouth College v. Woodward, 4 Wheat. 629,
Marshall, C. J., said: "The provision of the Constitution never has
been understood to embrace other contracts than those which respect
property or some object of value and confer rights which may be
asserted in a court of justice." Daniel, J., said, in Butler v.
Pennsylvania, 10 How. 402, 416: "The contracts designed to be
protected...are contracts by which perfect, certain, definite,
fixed, private rights of property are vested."

(52) Sturges v. Crowninshield, 4 Wheat. 122; McMillan v. McNeill,
ibid. 209; Farmers & Mechanics' Bank v. Smith, 6 id. 131; Ogden v.
Saunders, 12 id. 213; Boyle v. Zacharie, 6 Pet. 635; Suydam v.
Broadnax, 14 id. 67; Cook v. Moffat, 5 How. 295; Baldwin v. Hale, 1
Wall. 223.

(53) State Tax on Foreign-held Bonds Case, 15 Wall. 300.

(54) County of Moultrie v. Rockingham T.C.S. Bank, 92 U.S. 631;
Mobile v. Watson, 116 id. 289. But see Meriwether v. Garrett,102 id.
472.

(55) Fisk v. Jefferson Police Jury, 116 U.S. 131.

(56)Blount v. Windley, 95 U.S. 173; Memphis v. U.S., 97 id. 293;
Wolff v. New Orleans, 103 id. 358; Louisiana v. Pilsbury, 105 id
278; Ralls County Court v. U.S. ifid. 733; Nelson v. St. Martin's
Parish, 111 id. 716; Mobile v. Watson, 116 id. 289; cf. Morley v.
L.S.& M.S. Ry., 146 id. 162.

(57) Louisiana v. New Orleans, 109 U.S. 285; Freeland v. Williams,
131 id. 405.

(58) Hunt v. Hunt, 131 U.S. clxv; Maynard v. Hill, 125 id. 1990.

(59) Aspinwall v. Daviess County, 22 How. 364; Morgan v. Louisiana,
93 U. S. 217; Wadsworth v. Supervisors, 102 id. 534; Norton v. Board
of Comrs. of Brownsville, 129 id. 479; Lake County v. Rollins, 130
id. 662; Lake County v. Graham, ibid. 674; Campbell v. Wade, 132 id.
34; Pleasant Township v. A. L. 1. Co., 138 id. 67; New Orleans v. N.
0. W. W., 142 id. 79; H. G. L. Co. v. Hamilton City, 146 id. 258; 1.
C. R. v. Illinois, ibid. 387; Bier v. McGehee, 148 id. 137;
Citizens' S. & L. Assn., v. Perry County, 156 id. 692; Woodruff v.
Mississippi, 162 id. 291; C. M. L. 1. Co. v. Spratley, 172 id. 602 ;
Los Angeles v. L. A. W. Co., 177 id. 558; Weber v. Rogan, 188 id.
10; Zane v. Hamilton County, 189 id. 370; U. R. v. City of New York,
193 id. 416; cf. C., M. & St. P. Ry. v. Solan, 169 id. 133; Gunnison
County Comrs. v. Rollins, 173 id. 255; H. & T. C. R. v. Texas, 177
id. 66; Waite v. Santa Cruz, 184 id.

(60) Aspinwall Daviess County, 22 How. 364. 

(61) Wadsworth v. Supervisors, 102 U.S.534; cf. Campbell v. Wade,
132 id. 34.

(62) Bier v. McGehee, 148 U. S. 137. S. 479; Pleasant

(63) Norton v. Board of Comrs. of Brownsville, 129 U.S. 479;
Pleasant Township v. A. L. I. Co., 138 id. 67.

(64) Lake County v. Rollins, 130 County, 189 id. 370; cf. Gunnison
County Comrs. v. Rollins, 173 id. 255; H.& T. C. R. v. Texas, 177
id. 66.

(65) I. C. R. v. Illinois, 146 U. S. 387, 460. Two justices took no
part in the decision and three justices dissented. See also I. C. R.
v. Illinois, 184 id. 77; M. T. Co. v. Mobile, 187 id 479; In
Pearsall v. G.N.Ry., 161 id. 646, where a charter authorizing the
consolidation of railways was modified by a statute prohibiting the
consolidation of competing roads, before any such consolidation had
been attempted, the court said: "We cannot recognize a vested right
to do a manifest wrong." And see L.& N.R. v. Kentucky, 183 id. 503, 518.

(66) People v. Commissioners of Taxes, 94 U. S. 415.

(67) Trask v. Maguire, 18 Wall. 391; Morgan v. Louisiana, 93 U. S.
217; Shields v. Ohio, 95 id. 319; R. Cos. v. Gaines, 97 id. 697; K.
& W. R. v. Missouri, 152 id. 301; P. I. Co. v. Tennessee, 161 id.
193; G. & S. 1. R. v. Hewes, 183 id. 66; cf. Lake County v. Graham,
130 id. 674.

(68) 4 Wheat. 122.

(69) 4 Wheat. 209.

(70) 6 Wheat. 131.

(71) 12 Wheat. 213.

(72) 12 Wheat. 369, note.

(73) 6 pet. 643.

(74) 12 Wheat. 213, 358.

(75) P. 635.

(76) 14 Pet. 67.

(77) 5 How. 295.

(78) 1 Wall. 223.

(79) Sturges v. Crowninshield, 4 Wheat. 122; F. & M. Bank v. Smith,
6 d. 131.

(80) McMillan v. McNeill, 4 Wheat. 209; Cook v. Moffat, 5 How. 295.

(81) Ogden v. Saunders, 12 Wheat. 213; Shaw v. Robbins, ibid. 369,
note. See also Denny v. Bennett, 128 U. S. 489.

(82) Baldwin v. Hale, 1 Wall. 223.

(83) Blount v. Windley, 95 U. S. 173.

(84) Memphis v. U. S., 97 U. S. 293; Wolff v. New Orleans, 103 id.
358; Louisiana v. Pilsbury, 105 id 278; Ralls county court v. U. S.,
ibid. 733; Nelson v. St. Martin's Parish, Ill id. 716; Mobile v.
Watson, 116 id. 289; Scotland County Court v. U. S., 140 id. 41.

(85) Morley v. L. S. & M. S. Ry., 146 U. S. 162.

(86) Louisiana v. New Orleans, 109 U. S. 285; Freeland v. Williams,
131 id. 405.

(87) Fisk v. Jefferson Police Jury, 116 U. S. 131.

(88) County of Moultrie v. Rockingham T. C. S. Bank, 92 U. S. 631.

(89) R. Co. v. Pale-oner, 103 U. S. 821.

(90) Gilman v. Sheboygan, 2 Bl. 510.

(91) Mobile v. Watson, 116 U. S. 289. But see Meriwether v. Garrett,
102 id. 472.

(92) Memphis v. U.S., 97 U. S. 293; Wolff v. New Orleans, 103 id.
358; Ralls County Court v. U.S., 105 id. 733; Nelson v. St. Martin's
Parish, 111 id. 716; Seibert v. Lewis, 122 id. 284; Scotland County
Court v. U. S., 140 id. 41.

(93) Louisiana v. Pilsbury, 105 U. S. 278.

(94) Ralls County Court v. U. S. 105

(96) Madison Papers, 5 Elliot's Debates, 546.

(97) Hist. of the Constitution, 214.

(98) G. Morris, by Sparks, III, 323.

(99) Gilpin,1552, 1581.

(100) Works of Hamilton, Lodge's Edition, Vol. II, p. IL47.

(101) No. XLIV, Lodge's Edition.

(102) 4 Wheat.205.

(103) 6 Cr. 87.

(104) Davis v. Gray, 16 Wall. 203; H. & T. C. Ry. v. Texas, 170 U.
S. 243; cf. A. Ry. v. New York, 176 id. 335.

(105) Green v. Biddle, 8 Wheat. 1.

(106) Terrett v. Taylor, 9 Cr. 43.

(107) 7 Cr.164

(108) Jefferson Branch Bank v. Skelly, 1 Bl. 436; Chicago v.
Sheldon, 9 Wall. 50; W. & R. R. v. Reid, 13 id. 264; R. & G. R. v.
Reid, ibid. 269; Humphrey v. Pegues, 16 id. 244; P. R. v. Maguire,
20 id. 36; New Jersey v. Yard, 95 U. S. 104; University v. People,
99 id. 309; Asylum v. New Orleans, 105 id. 362; W. & W. R. v.
Alsbrook, 146 id. 279; M. & 0. R. v. Tennessee, 153 id. 486; Shelby
County v. Union & Planters' Bank, 161 id. 149; Stearns v. Minnesota,
179 id. 223; Citizens' Bank v. Parker, 192 id. 73; ef. G. & S. I. R.
v. Hewes, 183 id. 66.

(109) W.& R.R. v. Reid, 13 Wall. 264; C. R. & B. Co. v. Wright, 164
U. S. 327.

(110) Farrington v. Tennessee, 95 U. S. 679; Bank of Commerce v.
Tennessee, 161 id. 134 , 163 id. 416; Shelby County v. Union &
Planters' Bank, 161 i& 149.

(111) P. R. v. Maguire, 20 Wall 36.

(112) R. & G. R. v. Reid, 13 Wall. 269.

(113) New Jersey v. Yard, 95 U. S. 104.

(114) Chicago v. Sheldon, 9 Wall. 50.

(115) University v. People, 99 U. S. 309; Asylum v. New Orleans, 105
id. 362.

(116) C. Ry. v. C. S. R., 166 U. S. 557.

(117) University v. People, 99 U. S. 309; Asylum v. New Orleans, 105
id. 362.

(118) Humphrey v. Pegues, 16 Wall.244.

(119) Salt Co. v. East Saginaw, 13 Wall. 373; Welch v. Cook, 97 U.
S. 5 W. & M. Ry. v. Powers, I 91 id. 379.

(120) Christ Church v. Philadelphia, 24 How. 300; Grand Lodge v.
Orleans, 166 U. S. 143.

(121) R. COL v. Gaines, 97 U. S. 697; G. & S. 1. R. Co. v. Hewes,
183 53; N. C. Ry. v. Mary 66; cf. Stearns v. Minnesota, 179 id. 223,
2 187 id. 258.

(122) Trask v. Maguire, 18 Wall. 391; Morgan v. Louisiana 93 U. S.
217; People v. Cook, 148id. 397. See also Memphis city Bank v.
Tennessee, 161 id.186;P. Ins. Co. v. Tennessee, ibid. 193.

(123) Shields v. Ohio,(95) U. S. 319.

(124) New Jersey v. Yard, 95 U. S. 104.

(125) Greenwood v. Freight Co., 105 U. S. 13; Tomlinson v. Jessup,
15 Wall. 454.

(126) R. Co. v. Georgia, 98 U. S. 359.

(127) Close v. Glenwood Cemetery, 107 U. S. 466; S. C. S. Ry. v.
Sioux City, 138 id. 98; L. W. Co. v. Clark, 143 id. 1; H. G. L. Co.
v. Hamilton City, 146 id. 258; People v. Cook, 148 id. 397; N. Y. &
N. E. IR. v. Bristol, 151 id. 556; Bryan v. Board of Education,
ibid. 639; C. Ry. v. C. S. R. 166 id. 557; Covington v. Kentucky,
173 id. 231; Citizens' Savings Bank v. Owensboro, ibid. 636; Looker
v. Maynard, 179 id. 46; G. & S. 1. R. v. Hewes, 183 id. 66; B. W. S.
Co. v. Mobile, 186 id. 212; cf. Stearns v. Minnesota, 179 id. 223,
239. See also Pearsall v. G. N. Ry., 161 id. 646; N. C. Ry. v.
Maryland, 187 id. 258; Wright v. M. M. L. I. Co., 193 id. 657.

(128) 2 Mass. 146.

(129) 105 U.S. 13, 19.

(130) Pennsylvania college Cases, 13 wall. 19o; Miller v. State, 15
id. 478; Holyoke Company v. Lymarn, ibid. 500.

(131) Tucker v. Ferguson, 22 Wall. 527; R. Cos. v. Gaines, 97 U. S.
697; RY. Co. v. Philadelphia, 101 id. 528; Picard v. E. T., V. & G.
R., 130 id. 637; Y. & M. V. R. v. Thomas, 132 id. 174; W. & W. R. v.
Albrook, 146 id. 279; W. & St. P. L. Co. v. Minnesota, 159 id., 526;
P. F. & M. I. Co. v. Tennessee, 161 id. 174; Central R. & B. Co. v.
Wright, 164 id. 327; Pord v. D. & P. L. Co., ibid. 662; Citizens'
Savings Bank v. Owensboro, 173 id. 636; Wells v. Savannah, 181 id.
531; Orr v. Gilman, 183 id. 278; Chicago Theological Seminary v.
Illinois, 188 id. 662; of. Citizens, Bank v. Parker, 192 id. 73.

(132) Tucker v. Ferguson, 22 Wall. 527. See also Ford v. D. & P. L.
Co., 164 U. S. 662.

(133) W. P. Co. v. East St. Louis, 107 U. S. 365,

(134) Ry. Co. v. Philadelphia, 101 U. S. 528.

(135) Ford v. D. & P. L. Co., 164 U. S. 662.

(136) New Orleans v. Citizens' Bank, 167 U. S. 371; cf. Shelby
County v. Union & Planters' Bank, 161 id. 149.

(137) W. & St. P. L. Co. v. Minnesota, 159 U. S. 526.

(138) Humphrey v. Pegues, 16 Wall. 244.

(139) Binghamton Bridge, 3 Wall. 51.

(140) R. Cos. v. Gaines, 97 U. S. 697. See also G. & S. I. R. v.
Hewes, 183

(141) Tomlinson v. Branach, 15 Wall. 460; W. & W. R. v. Alsbrook,
146 U. S. 279. See also P. G. & C. Co. v. Chicago, 194 id. 1.

(142) Picard v. E. T., V. & G. R., 130 U. S. 637; People v. Cook,
148 id. 397; N. C. Ry. v. Maryland, 187 id. 258. See aw N. & W. R.
v. Pendleton, 156 id. 667; C. & L. T. R. Co. v. Sandford, 164 id.
578.

(143) Bridge Proprietors v. Hoboken Co., 1 Wall. 116; Binghamton
Bridge, 3 id. 51; cf. Williams v. Wingo, 177 U. S. 601.

(144) Bridge Proprietors v. Hoboken Co., 1 Wall.116.

(145) Planters' Bank v. Sharp, 6 How. 301.

(146) Hall v. Wisconsin, 103 U. S. 5; cf. Missouri v. Walker, 125
id. 339.

(147) N. 0. W. W. v. Rivers, 115 U. S. 674; St. T. W. W. v. N. 0. W.
W ., 120 id. 64; Walla Walla v. W. W. W. Co., 172 id. 1. See also
Los Angeles v. L. A. W. Co., 177 id. 558; F. W. Co. v. Freeport, 180
id. 587; S. W. W. Co. v. Skaneateles, 184 id. 354.

(148) N.0.G. Co. v. L.L.Co., 115 U.S. 650; L.G.Co. v. C.G.Co., ibid.
683.

(149) Hartman v. Greenbow, 102 U. S. 672; Virginia Coupon Cases, 114
id. 270; Royall v. Virginia, 116 id. 572, 121 id. 102; McGahey v.
Virginia, 135 id. 662; McCullough v. Virginia, 172 id. 102.

(150) Furman v. Nichol, 8 Wall. 44; Keith v. Clark, 97 U. S. 454.

(151) Woodruff v. Trapnall, 10 How. 190; Paup v. Drew, ibid. 218;
Trigg v. Drew, ibid. 224.

(152) Murray v. Charleston, 96 U. S. 432.

(153) Curran v. Arkansas, 15 H-ow. 304; Barings v. Dabney, 19 Wall. 1.

(154) Green v. Biddle, 8 Wheat. 1; C. & C. Bridge Co. Kentucky, 154

(155) Maryland v. B. & 0. R., 3 How. 534; East Hartford v. H. Bridge
Co., 10 id. 511; R. Co. v. Ellerman, 105 U. S. 166; New Orleans v.
N. 0. W. W., 142 id. 79; cf. Essex Pub. Road Board v. Skinkle, 140
id. 334.

(156) Maryland v. B. & 0. R., 3 How. 534.

(157) R. Co. v. Ellerman, 105 U. S. 166.

(158) Williamson v. New Jersey, 130 U. S. 189.

(159) 4 Wheat. 518.

(160) Wheat. pp.628, 629.

(161) 12 Wheat. 333.

(162) 4 Pet. 514.

(163) 109 U. S. 398.

(164) 20 Wall. 46.

(165) 22 Wall. 215.

(166) 22 Wall. 527.

(167) License Tax Cases, 5 Wall. 462; Delaware R. Tax, 18 id. 206;
Eri Ry. v. Pennsylvania, 21 id. 492; Home Ins. Co. v. Augusta, 93 U.
S. 116 S. C. S. Ry. v. Sioux City, 138 id. 98; N. 0. C. & L. R. v.
New Orleans 143 id. 192; W. & W. R. v. Alsbrook, 146 id. 279; Shelby
Co. v. Union Planters' Bank, 161 id. 149; New Orleans v. Citizens'
Bank, 167 id. 371.

(168) People v. Cook, 148 U. S. 39 7; Picard v. East T., V. & G. R.,
130 id. 637; K. & W. R. v. Missouri, 152 id. 301; N. C. Ry. v.
Maryland, 187 id 258. Bee also Shields v. Ohio, 95 id. 319; St. L. &
S. F. Ry. v. Gill, 156 id 649; N. & W. R. v. Pendleton, ibid. 667;
P. F. & M. 1. Co. v. Tennessee 161 id. 174; Memphis City Bank v.
Tennessee, ibid. 186; P. I. Co. v. Tennessee, ibid. 193; C. & L. T.
R. Co. v. Sandford, 164 id. 578; G. R. & I. Ry. v. Osborn, 193 id.
17.

(169) Rice v. R. Co., 1 Bl. 358; Charles River Bridge v. Warren
Bridge, 11 Pet. 544; Mills v. St. Clair County, 8 How. 581; Perrine
v. C. & D. C. Co., 9 id. 172; R. & P. R. v. L. R., 13 id. 81; 0. L.
I. & T. Co. v. Debolt, 16 id. 416; Jefferso Branch Bank v. Skelly, 1
Bl. 436; The Binghamton Bridge, 3 Wall. 51, 75; G. R. & B. Co. v.
Smith, 128 U. S. 174; Stein v. B. W. S. Co., 141 id. 6 7; H. G. L.
Co. v. Hamilton City, 146 id. 258; M. & St. L. Ry. v. Gardner, 177
id. 332; L. & N. R. v. Kentucky, 183 id. 503; Joplin v. S. M. L.
Co., 191 id. 150; Stanislaus County v. S. J. & K. R. C. & I. Co.,
192 id. 201; Shaw v. Covington, 194 id. 5 93. See also Owensboro v.
0. W. S. Co., 191 id. 358.

(170) Mumma v. The Potomac Co., 8 Pet. 281, 286; C. L. 1. Co. v.
Needles, 113 U. S. 574, 584.

(171) Panning v. Gregoire, 16 How. 524; Turnpike Co. v. State, 3
Wall. 210; Wright v. Nagle, 101 U. S. 791; W. & B. Bridge Co. v. W.
B. Co., 138 id. 287; Williams v. Wingo, 177 id. 601.

(172) Stein v. B. W. S. Co., 141 U. S. 67.

(173) Joplin v. S. M. L. Co., 191 U. S. 150. See also N. W. Co. v.
Newburyport, 193 id. 561.

(174) Shields v. Ohio, 95 U. S. 319; St. L. & S. F. Ry. v. Gill, 156
id. 6 49;

(175) P. G. & C. Co. v. Chicago, 194 U. S. 1.

(176) C., B. & Q. R. v. Iowa, 94 U. S. 155; Peik v. C. & N. W. Ry.,
ibid. 164; W. & St. P. R. v. Blake, ibid. 180; Boyd v. Alabama,
ibid. 645; Beer Co. v. Massachusetts, 97 id. 25; Fertilizing Co. v.
Hyde Park, ibid. 659; Ruggles v. Illinois, 108 id. 526; Stone v. P.
L. & T. Co., 116 id. 307; G. R. & B. Co. v. Smith, 128 id. 174; P.
R. v. Miller, 132 id. 75; C., M. & St. P. Ry. v. Minnesota, 134 id.
418; W. & B. Bridge Co. v. W. Bridge Co., 138 id. 287; New York v.
Squire, 145 id. 175; M. & St. L. Ry. v. Emmons, 149 id. 364; E. I.
Co. v. Ohio, 153 id. 446; N. & W. R. v. Pendleton, 156 id. 667;
Pearsall v. G. N. Ry., 161 id. 646; L. & N. R. v. Kentucky, ibid.
677; St. L. & S. F. Ry. v. Mathews, 165 id. 1; C., B. &. Q. R. v.
Chicago, 166 id. 226; L. I. W. Co. v. Brooklyn, ibid. 685; W.R. v.
Defiance, 167 id. 88; C., B. & Q. R. v. Nebraska, 170 id. 57; A. Ry.
v. New York, 176 id. 335; F.W.Co. v. Freeport, 180 id. 587; K. 1.
Co. v. Harbison, 183 id. 13; L. & N. R. v. Kentucky, ibid. 503;
Stanislaus County v. S. J. & K. R. C. & 1. Co., 192 id. 201; cf. N.
Y., L. E. & W. R. v. Pennsylvania, 153 id. 628; C. M. L. 1. Co. v.
Spratley, 172 id. 602.

(177) E. 1. Co. v. Ohio, 153 U. S. 446.

(178) R. Co. v. Hamersley, 104 U. S. 1.

(179) M. & St. L. Ry. v. Tennessee, 149 U.S. 364.

(180) St. L. & S. F. Ry. v. Mathews, 165 U. S. 1.

(181) P. R. v. Mille 132 U. S. 75.

(182) Baltimore v. B. T. Co., 166 U. S. 673; W. R. v. Defiance, 167
id. 88. See also C., B. & Q. P.. v. Nebraska, 170 id. 57; L. G. L.
Co. v. Murphy, ibid. 78.

(183) Pearsall v. G. N. Ry., 161 U. S. 646.

(184) C., B. & Q. R. v. Iowa, 94 U. S. 155; Ruggles v. Illinois, 109
id. 526; G. R. & B. Co. v. Smith, 128 id. 174; M. E. Ry. v.
Minnesota, 134 id. 467; L. & N. R. v. Kentucky, 183 id. 503. In
Reagan v. F. L. & T. Co., 154 id. 362, 393, after admitting that a
state has the general power to regulate rates, the court suggested,
but did not decide, that 'there might be an implied grant to the
railway of the right to reasonable tolls.'

(185) Stone v. F. L. & T. Co., 116 U. S. 307; Stone v. 1. C. R.,
ibid. 347; C., M. & St. P. Ry. v. Minnesota, 134 id. 418. See also
Owensboro v. 0. W. Co., 191 id. 358.

(186) S. V. W. W. v. Schottler, 110 U. S. 347; cf. F. W. Co. v.
Freeport,

(187) Stanislaus County v. S. J. & K. R. C. & I. Co., 192 U. S. 201.
In this case, however, the state constitution had reserved to the
legislature the power to amend or repeal the law in question.

(188) Even an express grant of exemption from regulation does not by
implication extend to a purchaser from the grantee: Shields v. Ohio,
95 U. S. 319; St. L. & S. F. Ry. v. Gill, 156 id. 649; N. & W. R v.
Pendleton, ibid. 667; C. & L. T. R. Co. v. Sandford, 164 id. 578; G.
R. & I. Ry. v. Osborn, 193 id. 17; and see P. G. & C. Co. v.
Chicago, 194 id. 1.

(189) Los Angeles v. L. A. W. Co., 177 U. S. 558; cf. K. W. Co. v.
Knoxville, 189 id. 434.

(190) Detroit v. D. C. S. Ry., 184 U. S. 368; Cleveland v. C. C.
Ry., 194 id. 517; Cleveland v. C. E. Ry., ibid. 538; of. F. W. Co.
v. Freeport, 180 id.587; L. & N. R. v. Kentucky, 183 id. 503, 518.

(191) C., B. & Q. R. v. Nebraska., 170 U. S. 57.

(192) Fertilizing Co. v. Hyde Park, 97 U. S. 659.

(193) Beer Co. v. M usetts, 97 U. S. 25.

(194) Stone v. M ppi, 101 U. S. 814; Douglas v. Kentucky, 168 id.
488.

(195) Butchers' Union v. C. C. Co., Ill U. S. 746.

(196) 4 Wheat. 629.

(197) Church v. Kelsey, 121 U. S. 282.

(198) Newton v. Commissioners, 100 U. S. 548.

(199) U. S. 'v. Memphis, 97 U. S. 284.

(200) New Orleans v. Morris, 105 U. S. 600.

(201) Amy v. Shelby County, 114 U. S. 387.

(202) Butler v. Pennsylvania, 10 How. 402; cf. Crenshaw v. U.S., 134
U.S. 99; Pennie v. Reis, 132 id. 464.

(203) Fisk v. Jefferson Police Jury, 116 U.S. 131.

(204) Head v. University, 19 Wall. 526.

(205) Beers v. Arkansas, 20 I-low. 527; Bank of Washington v.
Arkansas, ibid. 530.

(206) R. Co. v. Tennessee, 10 1 U. S. 337; R. Co. v. Alabama, ibid.
832; Baltzer v. North Carolina, 1 61 id. 240.

(207) 123 U. S. 504.

(208) Louisiana v. New Orleans, 102 U.S. 203.

(209) Beer v. Arkansas 20 How. 527; R. Co. v. Tennessee, 101 U. S.
337.

(210) 134 U.S. 1. See also McGahey v. Virginia, 135 id. 662.


				 CHAPTER VI.
		 EX POST FACTO LAWS AND BILLS OF ATTAINDER.

 77. The constitutional provisions.
 78. The distinction between retrospective and ex post facto laws.
 79. Ex post facto laws defined.
 80. Illustrations of ex post facto Iaws.
 81. Illustrations of laws which are not ex post facto.
 82. Bills of attainder and bills of pains and penalties.

The constitutional provisions.
77. Section 10 of Article I of the Constitution declares that "no
state shall ... pass any bill of attainder or ex post facto law."
Section 9 of Article I of the Constitution, restricting the powers
of Congress, declares that no bill of attainder or ex post facto law
shall be passed."

The distinction between retrospective and ex post facto laws.
78. Ex post facto laws relate to criminal, and not to civil,
procedure.(1) They are necessarily retrospective, but all
retrospective laws are not ex post facto.(2) State laws which
operate retrospectively, or which divest antecedently vested rights
of property, are not prohibited by the Constitution of the United
States, if they are not ex post facto laws, and if they do not
impair the obligation of contracts.(3) A state legislature, unless
restrained by the constitution of the state, may, therefore, enact
statutes setting aside a decree of a court of probate, refusing to
allow probate of a will, and granting a rehearing by the court of
probate with liberty of appeal therefrom, after the time limited by
existing laws for an appeal has passed;(4) declaring that the
relation of landlord and tenant exists between parties as to whom
the courts of the state have decided that that relation does not
exist;(5) curing defective acknowledgments of deeds by femes
covert;(6) construing by a declaratory statute, after the death of
a decedent, existing tax laws so as to subject to a collateral
inheritance tax the distributive shares of nonresident
distributees;(7) directing a county court to set aside an
inquisition condemning certain land for the use of a railway and to
order a new inquisition;(8) directing the imposition of a tax
according to an assessment theretofore made; (9) authorizing the
sale of lands on which the state has a lien for debts due to it;
(10) and establishing new remedies for the collection of taxes
already delinquent.(11) Upon the same principle, Congress having
passed an act for the admission of a territory as a state, and
having in that act omitted to provide for the disposal of causes
pending in the Supreme Court of the United States on appeal from the
territorial courts, may by a subsequent act properly make provision
for such causes, for such legislation is remedial; (12) and it may
provide for a review of the actions of a commission created by it,
by a transfer of its proceedings and decisions to judicial
tribunals for examination and determination de novo.(13) So also
Conngress may by statute impose a tax retrospectively.(14)'

Ex Post facto laws defined.
79. ln Fletcher v. Peck,(15) in Marshall, C. J., defines an Ex Post
facto law to be one "which renders an act punishable in a manner in
which it was not punishable when it was committed." in Cummings v.
Missouri,(16) Field, J., defines an ex post facto law, as one which
imposes a punishment for an act which was not punishable at the time
it was committed; or imposes additional punishment to that then
prescribed; or changes the rules of evidence by which less or
different testimony is sufficient to convict than was required." In
Calder v. Bull,(17) Chase, J., classified ex post facto laws as
follows:-"first, those that make an action, done before the passing
of a law, and which was innocent when done, criminal, and punish
such action; second, those that aggravate a crime, or make it
greater than it was when committed; third, those that change the
punishment and inflict greater punishment than the law annexed to
the crime when committed; and, fourth, those that alter the legal
rules of evidence and receive less or different testimony to
convict the offender than that required at the time of the
commission of the offense." That classification has been repeatedly
quoted with approval.(18)

Illustrations of ex post facto laws.
80. Laws have been held to be ex post facto, which, after the
commission of an act, alter the situation of the accused to his
disadvantage, as, for instance, by providing that the plea of
autrefois convict should not at a second trial be a defense in the
case of a prisoner convicted of murder in the second degree under an
indictment charging murder in the first degree, the law having been
at the time of the commission of the crime that such a plea was a
defense; (19) or by requiring a clergyman,(20) or a lawyer (21) as
a condition precedent to the practice of his profession, to take an
oath that he has not done an act, for the doing of which, when done,
deprivation of office was not a legal penalty; or by requiring one
who applies to a court to open a judgment rendered against him in
absentia, to take oath, as a condition precedent to his obtaining
the desired relief, that he has not done an act for the doing of
which the deprivation of the right to sue in courts of justice was
not by law antecedently imposed as a penalty;(22) or by adding to
the death penalty for murders already committed, the witholding from
the convict of all knowledge as to the date of his execution and the
keeping of him in solitary eonfinement until that time;(23) or by
reducing from twelve to eight the number of jurors necessary for the
trial of felonies committed before the enactment of the law.(24) In
the case last cited it was pointed out that while, as a general
rule, the accused has no vested rights in particular modes of
procedure, yet he cannot be deprived of any right that was regarded,
at the time of the adoption of the Constitution, as vital for the
protection of life and liberty, and which he enjoyed at the time of
the commission of the offense charged against him.(25) So also,
Congress cannot provide, by statute, that an act, which is not an
offense against the law at the time of its doing, may become such by
a subsequent independent act with which it has no necessary
connection; as, for instance, that subsequent bankruptcy, either
voluntary or involuntary, shall render criminal and punishable by
imprisonment the obtaining of goods with intent to defraud at any
time within three months before the commission of the act of
bankruptcy.(26)

Illustrations of laws which are not ex post facto.
81. On the other hand, a law changing the venue in a criminal case,
though passed subsequently to the Commission of the offense, is not
ex post facto; 27 nor is a law open to that objection, which, though
passed after the commission of an offense, requires that the persons
selected for jury service shall possess good intelligence, sound
judgment and fair character,(28) or which enlarges the class of
persons who may be competent to testify as witnesses at the trial,
as, for instance, by repealing a statutory prohibition of the
admission of the testimony of convicted felons,(29) or which
provides that "comparison of a disputed writing with any writing
proved to the satisfaction of the judge to be genuine, shall be
permitted to be made by witnesses, and such writings and the
evidence of witnesses respecting the same may be submitted to the
court and jury as evidence of the genuineness or otherwise of the
writing in dispute,"(30) or which allows to the prosecution an
appeal from the superior to the supreme court of the state,(31) or
which lessens the number of judges in the appellate court,(32) or
which limits the number of spectators at executions for murder;(33)
nor is a law ex post facto whicb denies the exercise of the right of
franchise to bigamists, or polygamists, for "the disfranchisement
operates upon the existing state and condition of the person, and
not upon a past offense;" (34) nor is a law unconstitutional which
prohibits the continuance of the practice of medicine by those who
do not register themselves in accordance with its provisions,(35)
or which excludes from the practice of medicine those who have been
convicted of felonies prior to its enactment; (36) nor can
constitutional objection be raised to a law which provides that
whoever has been twice convicted of crime shall, upon conviction of
a felony committed after the passage of the act, be deemed to be an
habitual criminal, and be punished by imprisonment for twenty-five
years.(37) While a law which endeavors to reach acts already
committed and which provides a like punishment for the same act in
the future is void in so far as it is retrospective, it is, however,
valid as to offenses which are committed after its passage.(38)

Bills of attainder and bills of pains and penalties.
82. A bill of attainder is defined by Field, J., in Cummings v.
Missouri,(39) as "a legislative act which inflicts punishment
without a judicial trial, and he adds, "If the punishment be less
than death, the act is termed a bill of pains and penalties. Within
the meaning of the Constitution, bills of attainder include bills of
pains and penalties." It has been held that a state constitution
requiring clergymen, as a condition precedent to the exercise of
their profession, to take oath that they had not committed certain
designated acts, some of which were at the time offenses subject to
legal penalties, and others of which were innocent acts,(40) and
that a state statute requiring one who applied to a court to open a
judgment rendered against him in absentia, to take oath that he had
not committed certain designated public offenses,(41) and that an
act of Congress requiring a lawyer, as a condition precedent to the
exercise of his profession, to take an oath that he had not
voluntarily borne arms against the United States, etc.,(42)
constituted in each case a bill of pains and penalties and was,
therefore, subject to the constitutional prohibition against bills
of attainder, inasmuch as, by legislative action, and without
judicial investigation, the statute imposed a punishment for an act
done before the enactment of the statute, the oath being offered to
the party incriminated as a means of compelling an admission of
guilt.

(1) Calder v. Bull, 3 Dall. 386; Watson v. Mercer, 8 Pet. 88, 110;
Carpenter v. Pennsylvania, 17 How. 456; League v. Texas, 184 U. S.
156.

(2) Calder v. Bull, 3 Dall. 386.

(3) Calder v. Bull, 3 Dall.386; Fletcher v. Peck, 6 Cr.138;Ogden
v. Saunders, 12 Wheat. 266; 'Satterlee v. Matthewson, 2 Pet. 380;
Watson v. Mercer, 8 Pet. 88, 110; Carpenter v. Pennsylvania, 17 How.
456; B. & S. R. v. Nesbit, 10 How. 395; Livingston v. Moore, 7 Pet.
469; League v. Texas, 184 U. S. 156.

(4) Calder v. Bull, 3 Dall. 386.

(5) Satterlee v. Matthewson, 2 Pet. 380.

(6) Watson v. Mercer, 8 Pet. 88.

(7) Carpenter v. Pennsylvania, 17 How. 456.

(8) B. & S. R. v. Nesbit, 10 How. 395.

(9) Locke v. New Orleaas, 4 Wall. 172.

(10) Livingston v. Moore, 7 Pet. 469.

(11) League v. Texas, 184 U. S. 156.

(12) Freeborn v. Smith, 2 Wall. 160.

(13) Stephens v. Cherokee Nation, 174 U. S. 445.

(14) Stockdale v. 1. Cos., 20 Wall. 323.

(15) 6 Cr. 138.

(16) 4 Wail. 325.

(17) 3 Wall. 386.

(18) Kring v. Missouri, 107 U. S. 221; Duncan v. Missouri, 152 id.
377; Gibson v. Mississippi, 162 id. 565; Mallett v. North Carolina,
181 id. 589.

(19) Kring v. Missouri, 107 U. S. 221.

(20) Cummings v. Missouri, 4 Wall. 277.

(21) Ex parte Garland, 4 Wall. 333. But see Hawker v. New York, 170
U. S. 189.

(22) Pierce v. Carskadon, 16 Wall. 234.

(23) Medley, Petitioner, 134 U. S. 160.

(24) Thompson v. Utah 170 U. S. 343.

(25) P. 352.

(26) U. S. v. Fox, 95 U. S. 670.

(27) Gut v. The State, 9 Wall. 35 ; Cook v. U. S., 138 U. S. 157.

(28) Gibson v. Mississippi, 162 U. S. 565.

(29) Hopt v. Utah, 110 U. S. 574.

(30) Thompson v. Missouri, 171 U. S. 380.

(31) Mallett v. North Carolina, 181 U. S. 589.

(32) Duncan v. Missouri, 152 U. S. 377.

(33) Holden v. Minnesota, 137 U. S. 483.

(34) Murphy v. Ramsey, 114 U. S. 15.

(35) Reetz v. Michigan, 188 U. S. 505.

(36) Hawker v. New York, 170 U. S. 189.

(37) McDonald v. Massachusetts, 180 U. S. 311.

(38) Jaehne v. New York, 128 U. S. 189.

(40) Cummings v. Missouri, 4 Wall. 277.

(41) Pierce v. Carskadon, 16 Wall. 234.

(42) Ex parte Garland, 4 Wall. 333.


				 CHAPTER VII.
		 THE PROHIBITION OF STATE BILLS OF CREDIT.

83. Bills of credit defined.
84. What are, and what are not, bills of credit.

Bills of credit defined.
83. Section 10 of Article I of the Constitution declares that "no
state shall .... emit bills of credit." Bills of Credit within the
meaning of this constitutional provision are promissory notes issued
by a state government on its credit "intended to circulate
throughout the community, for its ordinary purposes as money," and
redeemable on demand, or at a day certain in the future.(1)

What are, and what are not, bills of credit.
84. A state, therefore, may not issue interest-bearing certificates
in denominations "not exceeding $10, nor less than 50 cents"
receivable by the state in payment of taxes, and of debts due to the
state, and payable to officers of the state in discharge of salaries
and fees of office, and redeemable by the state under an
arrangement that there shall be withdrawn "annually from circulation
one-tenth part of the certificates." (2) Nevertheless, a state may
incorporate a bank, of which that state shall be the sole
shareholder, and it may authorize that bank to issue notes as
circulation, without contravening the constitutional prohibition,
the distinction being that such notes are issued, not on the credit
of the state, but on the credit of the capital and assets of the
bank.(3) Coupons of state bonds, though negotiable and receivable
for taxes due to the state,(4) and warrants drawn in payment of
appropriations made by the legislature, payable upon presentation if
there be funds in the treasury, and issued to individuals in payment
of debts due to them,(5) cannot properly be called bills of credit,
for they are not intended to circulate as money.

(1) Craig v. Missouri, 4 Pet- 411; Byrne v. Missouri, 8 id. 40;
Briscoe V. Bank of Kentucky, 11 id. 257.

(2) Craig v. Missouri 4 Pet. 410 - B e i v. Missouri 8 id. 40.

(3) Briscoe v. Bank of Kentuay, 11 Pet. 257; Darrington V. The Bank
of Alabama, 13 How. 12.

(4) Virginia Coupons Case, 114 U. S. 269, 284.

(5) H. & T. C. R. v. Texas, 177 U. S. 66, 89.


				 CHAPTER VIII.
				STATE COMPACTS.

85. What compacts are permitted, and what are forbidden.

What compacts are permitted, and what are forbidden.
85. Section 10 of Article I of the Constitution declares that "no
state shall enter into any treaty, alliance, or confederation ....
No state shall, without the consent of Congress .... enter into any
agreement or compact with another state." This constitutional
prohibition forbids compacts between a state and foreign nations,
and also compacts between states of the United States, to which the
assent of Congress has not been given. It is, therefore, decisive
against the validity of the confederation entered into by the
insurgent states in 1861.(1) It also forbids a governor of a state
to enter into an agreement with a foreign government for the
extradition of a prisoner.(2) But states may, with the consent of
Congress, enter into agreements touching conflicting boundaries,(3)
and, in such cases, the consent of Congress does not necessarily
have to be given by congressional legislation expressly assenting to
each of the stipulations of the agreement between the states, but
that consent may be inferred from the legislation of Congress
touching the subject-matter of the agreement.(4) The prohibition of
state compacts does not invalidate agreements entered into before
the adoption of the Constitution.(5)

(1) Withams v. Bruffy, 96 U. S. 176; Sprott V. U. S., 20 Wall. 459;
Ford v. Surget, 97 U. S. 594; U. S. v. Keehler, 9 Wan. 83.

(2) Holmes v. Jennison, 14 Pet. 540.

(3) Rhode Island v. Massachusetts, 12 Pet. 724; Missouri v. Iowa, 7
How. 660; Florida v. Georgia, 17 id. 478; Alabama v. Georgia, 23 id.
505; Virginia v. West Virginia, 11 Wall. 39; Poole v.  Fleeger 11
Pet. 185.

(4) Virginia v. West Virginia, 11 wall. 39; Virginia v. Tennessee,
148 U. S. 503; cf. St. L. & S. P. Ry. V. James, 16, id. 545, 562.

(5) Wharton v. Wise, 153 U. S. 155.


				 CHAPTER IX.
			    FUGITIVES FROM JUSTICE.

86. The Constitutional provision.
87. The concurrent jurisdiction of the federal and state courts.

The constitutional provision.
86. Section 2 of Article IV of the Constitution declares that a
person charged in any state with treason, felony, or other crime,
who shall flee from justice and be found in another state, shall on
demand of the executive authority of the state from which he fled,
be delivered up, to be removed to the state having jurisdiction of
the crime." The words "treason, felony, or other crime," as Taney,
C.J., said in Kentucky v. Dennison,(1) "in their plain and obvious
import, as well as in their legal and technical sense, embrace
every act forbidden and made punishable by a law of the state. The
word 'crime' of itself includes every offense, from the highest to
the lowest in the grade of offenses, and includes what are called
'misdemeanors,' as well as treason and felony."(2) This
constitutional provision imposes on the executive of the state in
which the fugitive has taken refuge the duty of surrendering the
fugitive upon demand made by the executive of the state from which
the fugitive has fled, and upon proof made that he has been legally
charged with crime, and this duty has been recognized by the act of
Congress of 12th February, 1793,(3) but if the governor of the state
to which the fugitive has fled refuses to deliver him up to justice,
"there is no power delegated to the general government, either
through the judicial department or any other department, to use any
coercive means to compel him."(4) The Supreme Court of the United
States, therefore, will not issue a mandamus to compel the
performance by a governor of a state of his constitutional duty of
surrendering to another state a fugitive from the justice of that
state.(5) This provision of the Constitution does not give to the
person extradited any constitutional right to insist that he shall
not be tried for any offense other than that set forth in the
requisition papers without first having an opportunity to return to
the state from which he was extradited.(6) And a fugitive from
justice who has been abducted from the state to which he fled may
thereafter be tried in the state to which he has been forcibly
carried, without violating any right or immunity secured to the
accused by the Constitution of the United States.(7)

The concurrent jurisdiction of the federal and state courts.
87. An alleged fugitive from justice may petition a court of the
United States for a writ of habeas corpus to inquire into the
legality of his detention, but as the responsibility of determining
whether or not the alleged fugitive from justice be in fact a
fugitive from justice, rests upon the executive of the state to
which the fugitive has fled, a court of the United States will not
discharge the fugitive upon the hearing of the writ of habeas corpus
because, in its judgment the proof that the prisoner is a fugitive
from justice is, though satisfactory to the executive, not as
complete as might have been required.(8) When, however, it is shown
conclusively that the accused was not within the state at the time
the crime was committed, he will be discharged upon the hearing of
the writ.(9) The alleged fugitive may also apply, by petition for a
writ of habeas corpus, to a court of the state within which he is
detained in custody of the purpose of being delivered to the justice
of another state, for the jurisdiction of the courts of the United
States over such petitions for writs of habeas corpus is not
exclusive of the jurisdiction of the courts of the states in such
cases, and the agent of the state demanding the surrender of the
alleged fugitive is in no sense an officer of the United States, nor
otherwise exempt from the process of the courts of the states.(10)

(1) 24 How. 99.

(2) See also Ex parte Reggel, 114 U. S. 642.

(3) I Stat. 302; Rev. Stat ., secs. 5278, 5279.

(4) Per Taney, C. J., in Kentucky v. DeniLison, 24 How. 109.

(5) Kentucky v. De@n, 24 How. 66.

(6) Lascelles v. Georgia, 148 U. S. 537; cf. Cosgrove v. WixLney,
174 i& 64.

(7) Mahon v. Justice, 127 U. S. 700.

(8) Ex parte Reggel, 114 -[T. S. 642; Roberts v. Reilly, 116 id.
80; Whitten v. Tomlinson, 160 id. 231- See also Cook v. Hart, 146
id. 183; Pearce v. Texas, 155 id. 311.

(9) Hyatt v. People, 188 U. S. 691.

(10) Robb v. Connolly, Ill U. S. 624.


