LECTURE XIX.

OP CONSTITUTIONAL RESTRICTIONS ON THE POWERS OF THE SEVERAL

STATES.

WE proceed to consider the extent and effect of certain constitutional restrictions on the authority of the separate states. As the Constitution of the United States was ordained and established by the people of the United States, for their own government as a nation, and not for the government of the individual states, the powers conferred, and the limitations on power contained in that instrument, are applicable to the government of the United States, and the limitations do not apply to the state governments unless expressed in terms.1 Thus, for instance, the provision in the Constitution that private property shall not be taken for public use without just compensation, was intended solely as a limitation on the exercise of power by the government of the United States, and does not apply to the state governments, (a) The people of the respective states are left to create such restrictions on the exercise of the power of their particular governments as they may think proper; and restrictions by the Constitution of the United States, on the exercise of power by the individual states, in cases not consistent with the objects and policy of the powers vested in the Union, are expressly enumerated.

"No state," says the Constitution, (b) "shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but

(a) Barron v. The Mayor and City Council of Baltimore, 7 Peters, 243. See also In the matter of Smith, 10 Wendell, 449. (b) Art. 1, sec. 10.

1 Twitchell v. The Commonwealth, 7 Wall. 321; Pervear v. The Commonwealth, 5 Wall. 475; Withers v. Buckley, 20 How. 84; Smith v. Maryland, 18 How.

71; Fox v. Ohio, 5 How. 411. See The Justices v. Murray, 9 Wall. 274, 278; ante, 326, n. 1.

gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility. No state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, nor lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."

Most of these prohibitions would seem to speak for themselves, and not to stand in need of exposition. I shall confine myself to those cases in which the interpretation and extent of some of these restrictions have been made the subject of judicial investigation.

1. Of Bills of Credit.Bills of Credit, within the purview of the Constitution of the United States, prohibiting the emission of them, are declared {408} to mean promissory notes or bills issued by a state government, exclusively on the credit of the state, and intended to circulate through the community for its ordinary purposes as money redeemable at a future day, and for the payment of which the faith of the state is pledged. (a) (x) The prohibition does not therefore apply to the

(a) Craig v. The State of Missouri, 4 Peters, 410. In the case of Briscoe v. The Bank of Kentucky, 11 Peters, 257, the question what were bills of credit, of which the emission was prohibited to the states, was extensively discussed. They were defined to be paper issued by the authority of a state on the faith of the state, and designed to circulate as money; and under this definition it was adjudged that a bank of the State of Kentucky, established in the name and on behalf of the state, under the direction of a president and twelve directors chosen by the legislature, and the bank exclusively the property of the state, and with a capital of two millions, and with authority to issue notes payable to bearer on demand, and receive deposits and make loans; and the notes of which bank, by a subsequent act, were to be received on executions by plaintiff, and if refused, further proceedings to be delayed on the judgment for two years, was not within the prohibition in the Constitution of the United States against the emission of bills of credit. Mr. Justice Story dissented from this decision, and said that the late Chief Justice Marshall was of opinion with him, when the same case was before the court, and argued at a preceding term; and he further said that he would not distinguish the case in principle from that of Craig v. The State of Missouri. It appears to me, with great submission to the Supreme Court, that this decision

(x) Coupons upon bonds issued by a State, which are receivable for taxes and negotiable, but which are not intended to

circulate as money, are not "bills of credit." Virginia Coupon Cases (Poindexter v. Greenhow), 114 U. S. 270

notes of a state bank, drawn on the credit of a particular fund set apart for the purpose. (b) Through all our colonial history, paper money was much in use; and from the era of our independence down to the date of the Constitution, bills of credit, issued under the authority of the confederation Congress, or of the individual states, and intended for circulation from hand to hand, were universally denominated paper money; and it was to bar the governmental issues of such a delusive and pernicious substitute for cash, that the constitutional prohibition was introduced. The issuing of such bills by the State of Missouri, under the denomination of certificates, was adjudged to be unconstitutional, though they were not made generally a legal tender, but they were, nevertheless, made receivable in payment of taxes, and by all civil and military officers in discharge of salaries and fees of office. Instruments, however, issued by or on behalf of a state, binding it to pay money at a future day, for services actually received, or for money borrowed for present use, were declared not to be bills of credit, within the meaning of the Constitution. (c)1

essentially overrules the case of Craig, and greatly impairs the force and value of the constitutional prohibition. In the case of Linn v. State Bank of Illinois, 1 Scam. 87, decided by the Supreme Court of that state in 1833, it appeared that the State Bank of Illinois was owned by the state, and authorized to issue notes or bills in small sums from twenty dollars to one dollar, drawing interest, and receivable in payment of debts due to the state; and that the legislature were pledged to redeem the bills, and creditors were stayed from collecting their debts for three years, unless they would receive the bills in payment. The court held that the analogy was so striking between that institution and the Missouri loan office, as to render the decision in Craig v. The State of Missouri in point, and binding on the states; and, consequently, it was adjudged that the act establishing the State Bank of Illinois was unconstitutional, and its notes void. And in the case of McFarland v. The State Bank, 4 Ark. 44, the Supreme Court of Arkansas held itself bound and concluded by the decision in Briscoe v. The Bank of Kentucky, though it was admitted to be inconsistent with the doctrine and decision in the prior case of Craig v. The State of Missouri. The court evidently regretted that the case of Craig had been overruled, as it contained the sound and true constitutional doctrine. The Bank of Arkansas stood on the same ground, and had the same essential qualities, and its notes were bills of credit within the decision of Craig, and not bills of credit within the decision of Briscoe, and the latter decision they held themselves bound to obey.

(b) Billis ads. The State, 2 M'Cord, 12.

(c) Craig v. The State of Missouri, ubi supra. Mr. Justice Story, in his Commentaries on the Constitution, iii. p. 19, seems to be of opinion, that, independent of long-

1 See further, as to what are not bills of credit, McCoy v. Washington County,

3 Wall. Jr. 381; Bailey v. Milner, 1 Abbott, U. S. 261; 35 Ga. 330; Darrington v.

2. Ex post Facto Laws. — In Calder v. Bull, (d) the question on the meaning of an ex post facto law, within the prohibition of the Constitution, was extensively discussed.

The legislature of Connecticut had, by a resolution or law, set aside a decree of the court of probates, rejecting a will, and directed a new hearing before the court of probates, and the point was, whether that resolution was an ex post facto law prohibited by the Constitution of the United States.

It was held that the words ex post facto laws were technical expressions, and meant every law that made an act done before the passing of the law, and which was innocent when {409} done, criminal; or which aggravated a crime, and made it greater than it was when committed; or which changed the punishment, and inflicted a greater punishment than the law annexed to the crime when committed; or which altered the legal rules of evidence, and received less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender. The Supreme Court concluded that the

continued practice from the time of the adoption of the Constitution, the states would not, upon a sound construction of the Constitution, if the question was res integra, be authorized to incorporate banks, with a power to circulate bank paper as currency, inasmuch as they are expressly prohibited from coining money. He cites the opinions of Mr. Webster, of the Senate of the United States, and of Mr. Dexter, formerly Secretary of War, on the same side. But the equal, if not the greater authority of Mr. Hamilton, the earliest Secretary of the Treasury, may be cited in support of a different opinion, and the contemporary sense and uniform practice of the nation are decisive on the question. Bank paper, like checks and negotiable notes, circulates entirely upon private credit, and is not a coercive circulation. It is at every person's option to receive or reject it. The Constitution evidently had in view bills of credit issued by law, in the name and on the credit of the state, and intended for circulation from hand to hand as money, and of which our history furnished so many pernicious examples. The words of the Constitution are, that no state shall emit bills of credit. The prohibition does not extend to bills emitted by individuals, singly or collectively, whether associated under a private agreement for banking purposes, as was the case with the Bank of New York prior to its earliest charter, in the winter of 1791, or acting under a charter of incorporation, so long as the state lends not its credit, or obligation, or coercion, to sustain the circulation. In the case of Briscoe v. The Bank of the Commonwealth of Kentucky, this question was put at rest, by the opinion of the court that there was no limitation in the Constitution on the power of the states to incorporate banks, and their notes were not intended to be inhibited, nor were considered as bills of credit. 11 Peters, 257, 345, 349. (d) 3 Dallas, 386.

Bank of Ala., 13 How. 12 (same principle as Briscoe v. Bank of Ky.); as to

what are, City N. Bank v. Mahan, 2 La. Ann. 751.

law or resolution of Connecticut was not within the letter or intention of the prohibition, and was, therefore, lawful. (a) Afterwards, in Fletcher v. Peck, (b) it was observed that an ex post facto law was one which rendered an act punishable in a manner in which it was not punishable when it was committed. This definition is distinguished for its comprehensive brevity and precision, and it extends to laws passed after the act, and affecting a person by way of punishment of that act, either in his person or estate. Ex post facto laws relate to penal and criminal proceedings, which impose punishments or forfeitures, and not to civil proceedings, which affect private rights retrospectively.1 Retro-

(a) Strong v. The State, 1 Blackf. (Ind.) 193, S. P.

(b) 6 Cranch, 138.

1Ex post Facto Laws. — This is one of the great constitutional questions which has been reopened and much discussed in cases arising out of the rebellion.

An act of Congress provided that no one should be admitted as an attorney or counsellor to the bar of any United States court, or should be allowed to appear by virtue of any previous admission, unless he should have first taken an oath that he had not done certain acts of treason against the United States, had not held office under, or yielded voluntary support to, any authority hostile to them, and would support and bear true allegiance to the Constitution. It was held that this act, which was, of course, directed at those who had taken part in the rebellion, was both a bill of attainder and an ex post facto law, and therefore unconstitutional. Ex parte Garland, 4 Wall. 333. See Ex parte Law, 35 Ga. 285. So, in Cummings v. Missouri, 4 Wall. 277, a provision in a state constitution that no clergyman should be permitted to teach, preach, or solemnize marriage, unless he should first take an oath that he had not done certain specified acts, some of which at the time of doing them were not criminal, was held void for like reasons. See, however, the very able dissenting opinion of Mr. Justice Miller, in which the Chief Justice and

Swayne and Davis, JJ., concurred, p. 382. But these were both cases of persons who had previously been admitted to their respective callings; and Mr. Pomeroy (Const. Law, § 532) thinks that as to future applicants the requirement of the test oath was constitutional, and cites Ex parte Magruder, Supreme Ct. D. C., to that effect, § 534. Further cases on the subject are Ex parte Law, 35 Ga. 285; The Murphy & Glover Test Oath Cases, 41 Mo. 339.

But in several cases it has been held that those who had taken part in the rebellion might be constitutionally deprived of the right to vote. Anderson v. Baker, 23 Md. 531; Ridley v. Sherbrook, 3 Coldw. 569; Blairw. Ridgely, 41 Mo. 63. And it is very clear that an act exempting all persons from prosecution for acts done by virtue of military authority of the United States or of the state during the late war, and made pleadable in bar of all actions then instituted or thereafter to be against any person for such acts, was constitutional. Drehman v. Stifle, 8 Wall. 595.

A law imposing a less penalty than a former law which it repeals is not ex post facto as to offences committed before its passage. Commonwealth v. Wyman, 12 Cush. 237; State v. Arlin, 39 N. H. 179, 180. As to the general question, what is

spective laws and state laws, devesting vested rights, unless ex post facto, or impairing the obligation of contracts, do not fall within the prohibition contained in the Constitution of the United States, however repugnant they may be to the principles of sound legislation. (c) (x)

(c) Calder v. Bull, 3 Dallas, 386: Satterlee v. Matthewson, 2 Peters, 413; Watson v. Mercer, 8 id. 88.

an ex post facto law, see Hartung v. People, 22 N. Y. 95; State v. Sullivan, 14 Rich. (S. C.) 281; State v. Paul, 5 R. I. 185; Lord v. Chadbourne, 42 Me. 429; Coffin v. Rich, 45 Me. 507; Rich v. Flanders, 39 N. H. 304; Gut v. The State, 9 Wall. 35. [A statute removing the bar of the statute of limitations where it has already run is ex post facto. Moore v. State, 43 N. J. L. 203, overruling S. C. 42 N. J. L. 208; Dinckerlocker v. Marsh, 75 Ind. 548. Held contra, as to an extension of the time allowed by the statute where it has not yet run. Com. v. Duffy, 96 Pa. St.

506; People v. Lord, 12 Hun, 282. A law requiring less evidence to convict than when the act was committed is ex post facto. United States v. Hughes, 8 Ben. 29. In Kring v. Missouri, 107 U. S. 221, a person was convicted of murder in the second degree; and the conviction was set aside on his appeal, which operated as an acquittal of the crime of murder in the first degree. Held, that a statute changing the effect of such reversal was ex post facto. Though the change may be one of procedure, it affects a substantial right of defendant, and this is the test. — B.]

(x) See The Energia, 66 Fed. Rep. 604; Sears v. Mahoney, id. 860; United States v. 64 Barrels of Spirits, 3 Cliff. 308; Kille v. Reading Iron Works, 134 Penn. St. 225; Mitchell v. Campbell, 19 Oregon, 198; McLane v. Bonn, 70 Iowa, 752; Demoville v. Davidson County, 87 Tenn. 214; Stetson v. Hall, 86 Maine, 110; Foster v. Police Commissioners, 102 Cal. 483; Re Wright, 3 Wyom. 478; People v. Spicer, 99 N. Y. 225; People v. Hayes (140 N. Y. 484), 37 Am. St. Rep. 572, and note; Pepole v. Maxwell, 83 Hun, 157; People v. Hawkins, 31 N. Y. S. 115. It is competent for Congress to impose taxes retrospectively. Stockdale v. Ins. Cos., 20 Wall. 323. A statute which, after annual settlements, authorized county auditors in Ohio to extend back, for four years, inquiries as to property returnable for taxation, was held constitutional. Sturges v. Carter, 114 U. S. 511. But penalties added for such previous years are within a constitutional

prohibition against retroactive laws. Gager v. Prout, 48 Ohio St. 89; Metz v. Hagerty (Ohio), 38 N. E. Rep. 11; Ryan v. State, 5 Neb. 276. So penalties which have accrued for non-payment of a tax, but which have been swept away by a repeal of the tax law, cannot be revived by new legislation. State v. Jersey City, 37 N. J. L. 39. An additional penalty may lawfully be prescribed for an act previously unlawful. Mackey v. Holmes, 52 Fed. Rep. 722.

An act which imposes an increased punishment or penalty is ex post, facto as to offences committed before its enactment. In re Medley, 134 U. S. 160; In re Savage, id. 176; see Fourth Nat. Bank v. Francklyn, 120 U. S. 747; Holden v. Minnesota, 137 U. S. 483; People v. McNulty, 93 Cal. 427; Ex parte Hunt, 28 Tex. App. 361. An habitual criminal Act, made applicable to previous and subsequent offences, does not violate constitutional prohibitions against both ex post

3. The States cannot control the Exercise of Federal Power. — The

state legislatures cannot annul the judgments, nor determine the extent of the jurisdiction, of the courts of the Union. This was attempted by the legislature of Pennsylvania, and declared to be inoperative and void by the Supreme Court of the United States, in the case of The United States v. Peters. (d) Such a power, as we have heretofore seen, necessarily resides in the supreme judicial tribunal {410} of the nation. It has also been adjudged that no state court has authority or jurisdiction to enjoin a judgment of the Circuit Court of the United States, or to stay proceedings under it. This was attempted by a state court in Kentucky, and declared to be of no validity by the Supreme Court of the United States, in M'Kim v. Voorhies. (a)l

(d) 5 Cranch, 115. (a) 7 Cranch, 279.

1 Riggs v. Johnson County, 6 Wall. 166, stated ante, 322, n. 1; The Mayor v. Lord, 9 Wall. 409; Supervisors v. Durant, ib. 415; Amy v. The Supervisors of Des Moines, 11 Wall. 136; ante, 401, n. 1.

The last statement in the text of this page (*410) has been twice referred to and denied to be law by the Supreme

Court. Freeman v. Howe, 24 How. 450, 458; Buck v. Colbath, 3 Wall. 334, 341. The rule now laid down is, "that whenever property has been seized by an officer of the court, by virtue of its process, the property is to be considered as in the custody of the court, and under its control for the time being; and that no other

facto and retroactive laws. Blackburn v. State, 50 Ohio St. 428; Com'th v. Graves, 155 Mass. 163; Sturtevant v. Com'th, 158 Mass. 598. A State statute providing that every colored child previously born shall be the legitimate child of his colored father, if acknowledged by him, though retrospective in conferring a privilege, is not invalid as an ex post facto law or as impairing the obligation of contracts. Callahan v. Callahan, 36 S. C. 454. Vested rights under contracts cannot be impaired by new enactments. Koshkonong v. Burton, 104 U. S. 668; Stetson v. Hall, 86 Maine, 110. A constitutional amendment making changes in the trial court after the crime was committed is not an ex post facto law: Duncan v. Missouri, 152 U. S. 377; nor is one passed after a crime was committed, and before trial, enlarging the capacity of witnesses: Hopt

v. Utah, 110 U. S. 574; nor is a law changing the trial court: State v. Welch, 65 Vt. 50; State v. Cooler, 30 S. C. 105; or the place of trial: Cook v. United States, 138 U. S. 157; or the parties necessary to suits upon contracts: Tompkins v. Forrestal, 54 Minn. 119; or one partially doing away with grand juries: State v. Hoyt, 4 Wash. St. 818; Lybarger v. State, 2 id. 552; see People v. Tisdale, 57 Cal. 104; or one affecting only the remedy. Drake v. Jordan, 73 Iowa, 707. Curative statutes are not objectionable on this ground when the defect is not in matter of substance. Smith v. Hard, 59 Vt. 13; Bartlett v. Wilson, id. 23; Johnson v. Wells County Com'rs, 107 Ind. 15; Coles v. Washington County, 35 Minn. 124; Thweatt v. Hopkinsville Bank, 81 Ky. 1.

No state tribunal can interfere with seizures of property made by revenue officers, under the laws of the United States; nor interrupt, by process of replevin, injunction, or otherwise, the exercise of the authority of the federal officers; and any intervention of state authority for that purpose is unlawful. This was so declared by the Supreme Court in Slocum v. Mayberry. (b) Nor can a state court issue a mandamus to an officer of the United States. This decision was made in the case of M'Cluny v. Silliman, (c) and it arose in consequence of the Supreme Court in Ohio sustaining a jurisdiction over the register of the land office of the United States, in respect to his ministerial acts as register, and claiming a right to award a mandamus to that officer to compel him to issue a final certificate of purchase. The principle declared by the Supreme Court was, that the official conduct of an officer of the government of the United States can only be controlled by the power that created him.

If the officer of the United States who seizes, or the court which awards the process to seize, has jurisdiction of the subject-matter, then the inquiry into the validity of the seizure belongs exclusively to the federal courts. But if there be no jurisdiction in the instance in which it is asserted, as if a marshal of the United

(b) 2 Wheaton, 1. Any restraint by state authority on state officers in the execution of the process of their courts is altogether inoperative upon the officers of the United States in the execution of the mandates which issue to them. Baldwin, J., in McNutt v. Bland, 2 How. 17.

(c) 6 Wheaton, 598.

court has a right to interfere with that possession, unless it be some court which may have a direct supervisory control over the court whose process has first taken possession, or some superior jurisdiction in the premises," Miller, J., in Buck v. Colbath, supra. See Biggs v. Johnson County, 6 Wall. 166, 196; Taylor v. Carry), 20 How. 583, 595. On this principle it was held that replevin did not lie in a state court against a marshal of the United States for property attached by him on mesne process from a United States court against a third person. Freeman v. Howe, supra (reversing S. C. 14 Gray, 566); Munson v. Harroun, 34 Ill. 422. See also Taylor v. Carryl, supra. But on the

other hand it has been decided, qualifying some expressions in Freeman v. Howe, that trespass does lie in a state court against a marshal for taking goods under a writ of attachment from a United States court, which did not belong to the defendant in the attachment suit. Buck v. Colbath, supra; Ward v. Henry, 19 Wis. 76; Booth v. Ableman, 18 Wis. 495.

Trover will lie in the state courts against a postmaster for improperly detaining a newspaper, although such detention is under color of the laws of the United States, and the regulations of the post-office department. Teall v. Felton, 12 How. 284; affirming S. C. 1 Comst. 537.

States, under an execution in favor of the United States against A, should seize the person or property of B, (d) then the state courts have jurisdiction to protect the person and the property so illegally invaded; and it is to be observed that the jurisdiction of the state courts in Rhode Island was admitted by {411} the Supreme Court of the United States, in Slocum v. Mayberry, upon that very ground.

In the case of The United States v. Barney, (a) the district judge of Maryland carried to a great extent the exemption from state control of officers or persons in the service of the United States, and employed in the transportation of the mail. He held that an innkeeper had no lien on the horses which he had fed, and which were employed in the transportation of the mail. The act of Congress of March, 1790, prohibited all wilful obstruction of the passage of the mail; and a claim for debt would not justify the stopping of the mail, or the means necessary to transport it, either upon principles of common law, or upon the statute. The judge stated, in this case, that even a stolen horse found in the mail stage could not be seized; nor could the driver, being in debt, or having committed an offence, be arrested, in such a way as to obstruct the passage of the mail. But in a subsequent case in the Circuit Court of Pennsylvania, (b) it was held that the act of Congress was not to be so construed as to endanger the public peace and safety. The carrier of the mail, driving through a populous city with dangerous rapidity, and contrary to a municipal ordinance, may be stopped, and the mail temporarily detained by an officer of the city. So, if the officer had a warrant against a felon in the stage, or if the driver should commit murder in the street, and then place himself on the mail stage box, he would not be protected from arrest, though a temporary stoppage of the mail might be the consequence.1 The public safety in one case is of more moment than the public inconvenience which it might produce in the other. (c)

(d) Bruen v. Ogden, 6 Halst. 370; Dunn v. Vail, 7 Martin (La.), 416.

(a) 3 Hall's Law Journal, 128.

(b) United States v. Hart, 1 Peters, C. C. 390.

(c) A toll-gate keeper, on a national road passing through a state, cannot stop the coach carrying the United States mail, for a refusal to pay toll. The remedy, if any, is by action against the contractor. Hopkins v. Stockton, 2 Watts & Serg. 163.

1 United States v. Kirby, 7 Wall. 482.

But while all interference on the part of the state authorities with the exercise of the lawful powers of the national government has been in most cases denied, there is one case in which any control by the federal over the state {412} courts, other than by means of the established appellate jurisdiction, has equally been prevented. In Diggs and Keith v. Wolcott, (a) it was decided generally, that a court of the United States could not enjoin proceedings in a state court; and a decree of the Circuit Court of the United States for the District of Connecticut was reversed, because it had enjoined the parties from proceeding at law in a state court. So in Ex parte Cabrera, (b) it was declared that the circuit courts of the United States could not interfere with the jurisdiction of the courts of a state. These decisions are not to be contested; and yet the district judge of the Northern District of New York, in the spring of 1823, in the case of Lansing and Thayer v. The North River Steamboat Company, enjoined the defendants from seeking in the state courts, under the acts of the state legislature, the remedies which those acts gave them. This would appear to have been an assumption of the power of control over the jurisdiction of the state courts, in hostility to the doctrine of the Supreme Court of the United States. (c) In the case of Kennedy v. Earl of Cassillis, (d) an injunction had been unwarily granted, in the English Court of Chancery, to restrain a party from proceeding in a suit in the Court of Sessions in Scotland, where the parties were domiciled. It was admitted that the Court of Sessions was a court of compe-

(a) 4 Cranch, 179. S. P. in Kittredge v. Emerson, [15 N. H. 227,] and in Dudley's Case, C. C. U. S. for Pennsylvania, 1 Pennsylvania Law Journal, 302; Carrell v. F. & M. Bank, Har. (Mich.) Ch. 197. Neither the United States nor the state courts can interfere or control the operations of each other. The courts of the United States can only interfere by their appellate jurisdiction, and the state courts have no power to interfere by injunction. 3 Story's Comm. on the Const. 624, 625.

(b) 1 Wash. 232; United States v. French, 1 Gall. 1, S. P.

(c) The assumed jurisdiction was not afterwards sustained; and a bill in equity in a state court for an injunction, though against an alien or citizen of another state, was held not to be such a suit as was removable to a circuit court of the United States. 1 Paige, 183.

(d) 2 Swanst. 313. But in the subsequent case of Bushby v. Munday, 5 Mad. 297, the Vice-Chancellor granted an injunction, under special circumstances, to restrain proceedings in the Court of Sessions in Scotland. The New York Court of Chancery has disclaimed any such jurisdiction, in respect to a foreign suit previously commenced, though it was in possession of jurisdiction over the person of the party. Mead v. Merritt, 2 Paige, 402.

tent jurisdiction, and an independent foreign tribunal, though subject to an appeal, like the Court of Chancery, to the House of Lords. If the Court of Chancery could in that way restrain proceedings in the Court of Sessions, the Sessions might equally enjoin proceedings in chancery, and thus stop all proceedings in either court. Lord Eldon said he never meant to go further with the injunction than the property in England; and he, on motion, dissolved it in toto. (e)

{413} 4. The States cannot impair the Obligation of Contracts.1 (x) — We come next to a prohibition of great moment,

(e) It has been assumed and asserted by official authority, that the judicial power of the United States had no power to enjoin the executive branch of the government from the execution of a constitutional duty or of a constitutional law, any more than they could arrest the legislature itself in passing the law. Opinions of the Attorneys-General, i. 507, 508; [ante 296, n. 1; 323, n. 1.]

1Post, 419, n. 1.

(x) The following impair the obligation of contracts: Legislation affecting the previous exemption of a railroad from taxation until its net earnings equal a certain per cent: Com'th v. Philadelphia & E. R. Co., 164 Penn. St. 252; Barnes v. Kornegay, 62 Fed. Rep. 671; Williamson v. New Jersey, 130 U. S. 189; see Louisville Water Co. v. Clark, 143 U. S. 1; New Orleans City & L. R. Co. v. New Orleans, id. 192; St. Paul, M. & M. Ry. Co. v. Todd County, 142 U. S. 282.; Justices' Opinion, 58 N. H. 623; a law decreasing the legal rate of interest, as to prior contracts: Getto v. Friend, 46 Kansas, 24, 31; Butler v. Rockwell, 17 Col. 290; Robertson v. Van Cleave, 129 Ind. 217; or taking away the right to foreclose previous mortgages: O'Brien v. Krenz, 36 Minn. 136; see Edwards v. Johnson, 105 Ind. 594; a law abolishing a private corporation, like the State board of agriculture, and transferring its property to another institution: Downing v. State Board, 129 Ind. 443; see Essex Public Road Board v. Skinkle, 140 U. S. 334; Tammany Water Works v. New Orleans Water Works, 120 U. S. 64; Stein v. Bienville W. S. Co., 141

U. S. 67; Citizens' Water Co. v. Bridgeport Hydraulic Co., 55 Conn. 1; a law changing the scheme of a public charitable bequest without the consent of all parties in interest: Gary Library v. Bliss, 151 Mass. 364; an act transferring the right to fix water or gas rates from the water or gas company to the city or town: New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; New Orleans Water Works Co. v. Rivers, id. 674; Santa Anna Water Co. v. San Buenaventura, 56 Fed. Rep. 339; see Walla Walla Water Co. v. Walla Walla, 60 id. 957; a law impairing the State's own contracts: Georgia Pen. Co. v. Nelms, 71 Ga. 301; or materially altering unconditional corporation charters: Bryan v. Board of Education, 151 U. S. 639; Eagle Ins. Co. v. State, 153 U. S. 446; Machias Boom Proprietors v. Sullivan, 85 Maine, 343; In re Brooklyn, 143 N. Y. 596; Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361; Barnes v. Kornegay, 62 Fed. Rep. 671; Smith v. Atchison, &c., R. Co., 64 id. 272; Virginia Dev. Co. v. Crozer I. Co., 90 Va. 126; Shields v. Clifton H. L. Co., 94 Tenn.123. A State constitution is a law within

and affecting extensively and deeply the legislative authority of the states. There is no prohibitory clause in the Constitution

the meaning of this clause of the Federal constitution, and a State can no more impair the obligation of a contract by her organic law than by her statutes. New Orleans Gas Co. v. Louisiana Light Co, 115 U. S. 650, 672, Sheehan v. Treasurer, 33 N. Y. S. 428. When a foreign railroad corporation is empowered by a State statute to construct and operate its road through the State on payment of a certain annual sum and other conditions, which it fulfils, the contract is impaired by a later Act which requires it to deduct from interest on its bonds, payable in the State of its creation, and pay to the State, a tax imposed on the bonds owned by residents of the State New York, L. E. & W. R. Co. v Pennsylvania, 153 U. S. 628.

See also Shreveport v Cole, 129 U. S. 36, McGahey v. Virginia, 135 U. S. 662, People v. Squire, 145 U. S. 175; Brown v. Smart, id. 454; Hamilton Gas Co v. Hamilton, 146 U. S. 258; People v. Cook, 148 U. S. 397, Bier v. McGehee, id. 137, Bryan v. Board of Education, 151 U. S. 639, New York, L. E. & W. R. Co. v. Pennsylvania, 153 U. S. 628, Baltimore Trust Co v. Baltimore, 64 Fed Rep. 153, Tuttle v. Block, 104 Cal. 443; Dowell v. Talbot Paving Co., 138 Ind. 675

The obligation of contracts is not impaired by the repeal of a lottery franchise Stone v. Mississippi, 101 U. S. 814, Commonwealth v. Douglass (Ky ), 24 S. W. Rep. 233, by a State statute admittedly valid, but construed erroneously Central Land Co. v. Lardley, 159 U. S. 103; by a change in a State constitution, restricting the payment of claims against the State Baltzer v. State, 109 N. C. 187; 104 N. C. 265, by an insolvent law discharging prior debts Pomeroy v. Gregory, 66 Cal 574, Porter v. Imus, 79 Cal 183, Chicago Life Ins. Co. v. Needles, 113 U. S. 574; Sloane v. Chiniquy, 22 Fed. Rep. 213, Keating v. Vaughn, 61

Texas, 518, by a law reducing the rate of interest on judgments upon contracts which do not provide for interest . Morley v. Like Shore & M. S. Ry. Co., 146 U. S. 162, by laws requiring insurance companies already chartered to make annual statements of its condition. Eagle Ins. Co. v. Ohio, 153 U. S. 446; by a change in the laws relating to marriage State v. Tutty, 41 Fed. Rep. 753, by a law authorizing the abolition of grade crossings at large expense New York & N. E. R. Co. v. Bristol, 151 U. S. 556, or requiring a railroad to be fenced Minneapolis & St. L. Ry. Co. v. Emmons, 149 U. S. 364; an act changing the salaries of public officers: Commonwealth v. Bailey, 81 Ky. 395, Harvey v. Rush County Commissioners, 32 Kansas, 159, by laws affecting municipal corporations New Orleans v. New Orleans Water-works, 142 U. S. 79, see Citizens' St. R. Co. v. City Ry. Co., 56 Fed. Rep. 746, Baltimore T. & G. Co. v. Baltimore, 64 id. 153, or exercising the right of eminent domain Atlanta Uni. v. Atlanta, 93 Ga. 468; Baltimore & F. T. Road v. Baltimore, &c. Co. (Md ), 31 Atl. Rep 854; or enlarging mechanics' liens Albnght v. Smith, 2 S. D. 577, 587, by a change in decisions of the courts upon the faith of which con tracts have been made Springer v Citizens Natural Gas Co. 145 Penn. St. 430; Allen v. Allen, 95 Cal. 184, see Wood v. Brady, 150 U. S. 18, by the abolition of dower Hamilton v. Wirsch, 2 Wash 223, by a change of remedies, or in the rules of evidence Davies H. L. Co. v. Gottschalk, 81 Cal 641, State v. New Orleans City & L. R. Co., 42 La Ann 550, Ward v. Hubbard, 62 Texas, 559, People v. Common Council, 140 N. Y. 300, Henry v. Henry, 31 S. C. 1, Texas Mex. Ry. Co. v. Locke, 74 Texas, 370, Biddle v. Hooven, 120 Penn. St. 221, Reid v. Hart, 45 Ark. 41; Stockwell v. Robinson, 9 Houst (Del ), 313. The contract, to raise a Federal ques-

which has given rise to more various and able discussions, or more protracted litigation, than that which denies to any state the light to pass any law impairing the obligation of contracts. I shall endeavor to give a full and accurate view of the judicial decisions defining and enforcing this prohibition.

The case of Fletcher v. Peck (a) first brought this prohibitory clause into direct discussion. The legislature of Georgia, by an act of 7th of January, 1795, authorized the sale of a large tract of wild land, and a grant was made, by letters-patent, in pursuance of the act, to a number of individuals, under the name of the Georgia Company. Fletcher held a deed from Peck for a part of this land, under a title derived from the patent; and in the deed Peck had covenanted that the State of Georgia was lawfully seised when the act was passed, and had good right to sell, and that the letters-patent were lawfully issued, and the title has not since been legally impaired. The action was for breach of covenant; and the breach assigned was, that the letters-patent were void, for that the legislature of Georgia, by act of 13th February, 1796, declared the preceding act to be null and void, as being founded in fraud and corruption. One of the questions presented to the Supreme Court upon the case was, whether the legislature of Georgia could constitutionally repeal the act of 1795, and rescind the sale made under it.

{414} The court declared, that when a law was in its nature a contract, and absolute rights have vested under that cou-

(a) 6 Cranch, 87.

tion, must be a valid one, capable of being impaired. New Orleans v. New Orleans Water-works, 142 U. S. 79 A judgment for a tort is not a contract under this constitutional restriction Freeland v. Williams, 131 U. S. 405, McAfee v. Covington, 71 Ga. 272 Statutes which limit the creditor's right to enforce his claim against the debtor's property are part of all subsequent contracts and do not impair their obligation Denny v. Bennett, 128 U. S. 489. A subsequent legislature may revoke a contract or grant made by a previous one when not within the limits of the powers possessed by the State. Coxe

v. State, 144 N. Y. 396. Modes of procedure in the courts of a state are so far within its control that a particular remedy, existing at the time of the making of a contract, may be abrogated altogether without impairing the obligation of the contract, if another and equally adequate remedy for the enforcement of that obligation remains or is substituted for the one taken away. Conn. Life Ins. Co. v. Cushman, 108 U. S. 51, 64, McGahey v. Virginia, 135 U. S. 662, 693, New Orleans, &c, R. Co. v. New Orleans, 157 U. S. 219, 224, Walker v. Glenn (Kansas), 40 Pac. Rep. 316.

tract, a repeal of the law could not devest those rights, nor annihilate or impair the title so acquired. A grant was a contract within the meaning of the Constitution. The words of the Constitution were construed to comprehend equally executory and executed contracts, for each of them contains obligations binding on the parties. A grant is a contract executed, and a party is always estopped by his own grant. A party cannot pronounce his own deed invalid, whatever cause may be assigned for its invalidity, and though that party be the legislature of a state. A grant amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A grant from a state is as much protected by the operation of the provision of the Constitution, as a grant from one individual to another; and the state is as much inhibited from impairing its own contracts, or a contract to which it is a party, as it is from impairing the obligation of contracts between two individuals. It was accordingly declared that the estate held under the act of 1795, having passed into the hands of a bona fide purchaser for a valuable consideration, the State of Georgia was constitutionally disabled from passing any law whereby the estate of the plaintiff could be legally impaired and rendered void.

The next case that brought this provision in review before the Supreme Court was that of The State of New Jersey v. Wilson. (a) It was there held, that if the legislature should declare by law that certain lands, to be thereafter purchased for the use of the Indians, should not be subject to any tax, such a legislative act amounted to a contract, which could not be rescinded by a subsequent legislature. In that case, the colonial legislature of New

(a) 7 Cranch, 164. In Brewster v. Hough, 10 N. H. 138, it was held that the legislature of a state could not effectually devest itself of the power of taxation, for it was essentially a power of sovereignty or eminent domain, and the court considered the case of New Jersey v. Wilson might be sustained on the ground that it was in the nature of a treaty with the Indians. Ch. J. Marshall, in the case of Providence Bank v. Billings, 4 Peters, 561, considered that it was not to be inferred, without positive stipulation, that a state had agreed to relinquish its power of taxation. But in Gordon v. Appeal Tax Court, 3 How. 133, it was adjudged that the legislature of a state might make a binding contract not to be impaired, to refrain from imposing any tax upon a bank or its stockholders. This would seem to remove the doubt suggested in the case in New Hampshire, and to show that a state may, in relation to any particular subject, and for reasons of public policy or consideration, contract that the sovereign power shall not be exercised. This point is ably discussed in the American Law Magazine for January, 1846, art. 4.

Jersey, in 1758, authorized the purchase of lands for the Delaware {415} Indians, and made that stipulation. Lands were accordingly purchased, and conveyed to trustees for the use of the Indians, and the Indians released their claim to other lands, as a consideration for this purchase. The Indians occupied these lands until 1803, when they were sold to individuals under the authority of an act of the legislature, and, in 1804, the legislature repealed the act of 1758, exempting those lands from taxation. The act of 1758 was held to be a contract, and the act of 1804 was held to be a breach of that contract, and void under the Constitution of the United States.1

The Supreme Court went again, and more largely, into the consideration of this delicate and interesting constitutional doctrine, in the case of Terret v. Taylor. (a) It was there held that a legislative grant, competently made, vested an indefeasible and irrevocable title. There is no authority or principle which could support the doctrine that a legislative grant was revocable in its own nature, and held only durante bene placito. Nor can the legislature repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal vest the property in others, without the consent or default of the corporators. Such a proceeding would be repugnant to the letter and spirit of the Constitution, and to the principles of natural justice.

But it was in the great case of Dartmouth College v. Woodward, (b) (x) that the inhibition upon the states to impair by law the obligation of contracts received the most elaborate discussion, and the most efficient and instructive application. It was there held that the charter granted by the British crown to the trustees of Dartmouth College in 1769 was a contract within the meaning of the Constitution, and protected by it; and that the college was a private charitable institution not liable to the control of the legislature; {416} and that the act of the legislature of New Hampshire, altering the charter in a material respect, without the consent of the corporation, was an

(a) 9 Cranch, 43.

(b) 4 Wheaton, 518.

1Post, 419, n. 1.

(x) See the reviews of this case in 27 Am. L. Rev. 71, 525; 28 id. 356, 440; 6 Harv. L. Rev. 161, 213.

act impairing the obligation of the charter, and consequently unconstitutional and void.1

The chief justice, in delivering the opinion of the court, observed, that the provision in the Constitution never had 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. Dartmouth College was a private eleemosynary institution, endowed with a capacity to take property for objects unconnected with government, and its funds were bestowed by individuals on the faith of the charter, and those funds consisted entirely of private donations. The corporation was not invested with any portion of political power, nor did it partake, in any degree, in the administration of civil government. It was the institution of a private corporation for general charity. The charter was a contract to which the donors, the trustees of the corporation, and the crown, were the original parties, and it was made on a valuable consideration, for the security and disposition of property. The legal interest, in every literary and charitable institution, is in trustees, and to be asserted by them, and they claim or defend in behalf of the religion, charity, and education, for which the corporation was created, and the private donations made. Contracts of this kind, creating these charitable institutions, are most reasonably within the purview and protection of the Constitution. This contract remained unchanged by the Revolution; and the duties, as well as the powers, of the government devolved on the people of New Hampshire; but the act of that state which was complained of transferred the whole power of governing the college from trustees appointed according to the will of the founder expressed in the charter, to the executive of New Hampshire. The will of the state was substituted for the will of the donors, in every essential operation of the college. The charter was reorganized in such a manner as {417} to convert a literary institution, moulded according to the will of its founders, and placed under the control of private literary men, into a machine entirely subservient to the will of government. This was, consequently, subversive of that contract, on the faith of which the donors invested their property; and the act of the legislature

1Post, 419, n. 1.

of New Hampshire was therefore held to be repugnant to the Constitution of the United States.

The same course of reasoning, and leading to the same conclusion, was adopted and expressed by some of the other judges.

In the opinion given by Judge Story, he added some new and interesting views of the nature of the contracts which the Constitution intended to protect. He denied the power of the legislature to dissolve even the contract of marriage, without a breach on either side, and against the wishes of the parties. A dissolution of the marriage obligation, without any default or assent of the parties, may as well fall within the prohibition of the Constitution, as any other contract for a valuable consideration. A man has as good a right to his wife as to the property acquired under a marriage contract; and to devest him of that right without his default, and against his will, would be as flagrant a violation of the principles of justice as the confiscation of his estate, (a) The prohibitory clause he also considered to extend to other contracts besides those where the parties took for their own private benefit. A grant to a private trustee, for the benefit of a particular cestui que trust, or for any special, private, or public charity, cannot be the less a contract, because the trustee takes nothing for his own benefit. Nor does a private donation, vested in a trustee for objects of a general nature, thereby become a public trust, which the government may, at its pleasure, take from the trustee. Government cannot revoke a grant even of its own funds, when given to a private person, or to a corporation, for special uses. It has no other remaining authority, but what is judicial, to enforce the proper administration of the trust. Nor {418} is a grant less a contract, though no beneficial interest accrues to the possessor. Many a franchise, whether corporate or not, may, in point of fact, be of no exchangeable value to the owners, and yet they are grants within the meaning and protection of the Constitution. All incorporeal

(a) In Maguire v. Maguire, 7 Dana, 184, Ch. J. Robertson considered the contract of marriage to be sui generis, and unlike ordinary or commercial contracts. It was publici juris, and created by the public law, subject to the public will, and not to that of the parties, who could not dissolve it by mutual consent. It was much more than a contract. It established fundamental domestic relations, and he did not think it was embraced by the constitutional interdiction of legislative acts impairing the obligation of contracts. This appears to be the soundest construction of the constitutional provision alluded to. [Green v. The State, 58 Ala. 190.]

hereditaments, as immunities, dignities, offices, and franchises, are rights deemed valuable in law, and whenever they are the subject of a contract or grant, they are just as much within the reach of the Constitution as any other grant. All corporate franchises are legal estates. They are powers coupled with an interest, and corporators have vested rights in their character as corporators. Upon this doctrine it was insisted that the trustees of Dartmouth College had rights and privileges under the charter, of which they could not be devested by the legislature without their consent.

The act of the legislature did impair their rights, and vitally affect the interest of the college under the charter. If a grant of franchise be made to A, in trust for a special purpose, the grant cannot be revoked, and a new grant made to A, B, and C, for the same purpose, without violating the obligation of the first grant. If property be vested by grant in A and B, for the use of a general charity, or private eleemosynary foundation, the obligation of the grant is impaired when the estate is taken from their exclusive management, and vested in them in common with ten other persons.

I have thus stated the substance of the argument of the Supreme Court in this celebrated case, and it contains one of the most full and elaborate expositions of the constitutional sanctity of contracts to be met with in any of the reports. The decision in that case did more than any other single act, proceeding from the authority of the United States, to throw an impregnable barrier around all rights and franchises derived from the grant of government; and to give solidity and inviolability to the literary, charitable, religious, and commercial institutions of our

country.

{419} The same prohibitory clause in the Constitution came again under discussion in the case of Green v. Biddle. (a) It was observed by the court, that the objection to a law, on the ground of its impairing the obligation of contracts, could never depend upon the extent of the change which the law effects in it. Any deviation from its terms, by postponing or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with the performance

(a) 8 Wheaton, 1; 4 Miller (La.), 94, S. P. See also Bronson v. Kinzie, 1 How. 811, and infra, iv. 434, S. P.

of those which are expressed, however minute or apparently immaterial in their effect upon the contract, or upon any part or parcel of it, impairs its obligation. To deny any remedy under a contract, or by burdening the remedy with new conditions and restrictions, to make it useless or hardly worth pursuing, is equally a violation of the Constitution. (b) Upon this principle it is that if a creditor agrees with his debtor to postpone the day

(b) It seemed to be admitted, in the case of Bronson v. Kinzie, that there might be legitimate alterations of the remedy, if they did not seriously impair the remedy. Something to the same extent was said by Ch. J. Marshall, in Sturges v. Crowninshield; but the admission is rather dangerous, from its liability to misconstruction and abuse; and still more so is the language of the court in the case of Evans v. Montgomery, 4 Watts & Serg. 218. In the case of Woodfin v. Hooper, 4 Humph. (Tenn.) 13, it was held that the right of the creditor to imprison a debtor, existing at the time of the formation of the contract, was no part of the contract, and that remedy might afterwards be repealed, and the defendant even discharged from prison, under an execution upon the contract. But to take away by legislative act the existing remedies for enforcing the obligation of the contract, so as to leave the creditor without redress, would be a mockery of justice, and repugnant to the Constitution of the United States. The courts do not undertake to go so far, nor do they undertake to draw the line between remedies that may and remedies that may not be taken away. The danger is, that the permission may be used so as to abolish all efficient remedies — Utor permisso — et demo unum, demo etiam unum, dum cadat. It is unfortunate that the loose language, in some cases, of the Supreme Court of the United States has encouraged the state legislatures to deal in discretion with lawful remedies existing when contracts were made. The better doctrine is, that all effectual remedies affecting the interests and rights of the owner, existing when the contract was made, become an essential ingredient in it, and are parcel of the creditor's right, and ought not to be disturbed. The constitution of New Jersey of 1844 (art. 4, see. 7), declares that the legislature shall not deprive a party of any remedy for enforcing a contract which existed when the contract was made. This is a wise provision, giving additional and material securities to the sanctity and efficacy of contracts. All suspension by statute of remedies, or any part thereof, existing when the contract was made, is more or less impairing its obligation. The true doctrine of the Constitution on this subject is to be found in Bronson v. Kinzie, McCracken v. Haywood, and Lancaster Saving Institution v. Reizart, infra, iv. 434, n. (c). In the case of Chadwick v. Moore, 8 Watts & Serg. 49, it was held that a statute of Pennsylvania, in 1842, suspending for a year a sale on execution for less than two thirds of the appraised value, was not unconstitutional. Mr. Ch. J. Gibson, who delivered the opinion of the court, seemed to hold that a temporary restraint on the remedy, when not to an unreasonable degree, was within the sound discretion of the legislature, and he preferred such a qualified doctrine to one that went for the absolute integrity of the constitutional principle in the entire existing remedy. Vide infra, 455, 456. And see James v. Stull, 9 Barb. 482; Baugher v. Nelson, 9 Gill, 299; Stocking v. Hunt, 3 Denio, 274; Smith v. Morse, 2 Cal. 524. The sounder state doctrine, as it seems to me, is that declared by Ch. J. Bronson, in the case of Quackenbush v. Danks, 1 Denio, 128; for, as he observes, laws which in form go only to the remedy, may have the practical effect of nullifying the contract.

of payment, or in any other way to change the terms of the contract, without the consent of the surety, the latter is discharged, although the change was for his advantage.

The material point decided in that case was, that a compact between two states was a contract within the constitutional prohibition. The terms "contract" and "compact" were synonymous; and a contract is an agreement of two or more parties to do or not to do certain acts. The court declared that the doctrine had been already announced and settled, that the Constitution embraced all contracts executed and executory, and whether between individuals, or between a state and individuals; and that a state had no more power to impair an obligation into which she herself had entered, than she had to impair the contracts of individuals.1

1 (a) What impairs the Obligation of a Contract? — In the prolonged litigation as to the validity of certain western county bonds, the Supreme Court have gone very far in their efforts to uphold the sanctity of contracts. It is said that if bonds are executed or contracts made after and in reliance upon a construction of the laws and constitution of the state by the highest state court, in accordance with which such bonds or contracts would be valid, "their validity and obligation cannot be impaired" by a subsequent contrary decision. Gelpeke v. Dubuque, 1 Wall. 175; Havemeyer v. Iowa County, 3 Wall. 294; Thomson v. Lee County, ib. 327; Lee County v. Rogers, 7 Wall. 181; Chicago v. Sheldon, 9 Wall. 50. This principle, if sound, seems to stand, not on the Constitution, as the above language might indicate, but on the general grounds of justice on which it was put by Taney, C. J., in Ohio Life Ins. Co. v. Debolt, 16 How. 416, 431. But as Mr. Justice Miller points out, 1 Wall. 211, the legal doctrine is that the law was always the same as expounded by the later decision, not that the state court makes a new law (see Stockton v. Dundee Manuf. Co., 7 C. E. Green (22 N. J. Eq.) 56); and if, as admitted, the United States court would

follow the later state decision as to contracts made after it, it is hard to see how they can logically avoid doing so as to those made before. However, in the above cases there were prior decisions of the state courts which were made the ground for disregarding their subsequent determinations. In a later case this element was wanting. For when a city issued bonds and afterwards the state courts construed a statute in force at the time of issue so as practically to take away the remedy of the creditors, the Supreme Court overruled the construction, although there were no state decisions in accordance with their view. Butz v. Muscatine, 8 Wall. 575; ante, 342, n. 1.

A more obvious decision is that a declaratory law cannot modify the settled construction of a statute, as to contracts already made under it. Post, 456, n. (c);• Reiser v. William Tell Savings Ass, 39 Penn. St. 137; ib. 154; Dundas v. Bowler, 3 McL. 397; [Koshkonong v. Burton, 104 U. S. 668; McNichol v. U. S. Rep. Agency, 74 Mo. 457.] See Lambertson v. Hogan, 2 Barr, 22. And it is equally clear that a change of constitution