LECTURE XXXIII.

The Obligation of a Grant may be impaired by taking the Land from the Grantee and transferring it to a Third Person. Retroactive Legislation is not necessarily invalid, even when the Effect is to defeat Preexisting Rights. - Confirming an Invalid Deed or Contract does not contravene the Constitutional Prohibition, although the Grantor is thereby obliged to surrender what he might otherwise legally have retained. Distinction between Defences given for the Public Good and for the Protection of Individuals. - A Defective Acknowledgment may be rendered valid retroactively. Contracts voidable for Fraud or Breach of Condition may not, and Contracts which are defective in Form or Consideration may, be confirmed legislatively.

CAN property be taken from the owner and bestowed on a third person, or appropriated without compensation to a public use, consistently with the prohibition of ex post facto laws and laws impairing the obligation of contracts? This question has frequently been mooted in the courts, and not always answered in the same way. A law divesting the title of a grantee and reinstating the grantor, obviously impairs the obligation by enabling the latter to resume what he has agreed to part with. Accordingly, the legislature cannot take back the property or franchises which it has conferred on a body corporate or an individual, even when the grant is statutory, and might be repealed if it were not a contract, or although the allegation is that the act was procured by bribery or fraud. If such a question is to be raised, it must be in the courts of law, and through an ejectment, quo warranto, or other writ framed for such a purpose.1 So the Constitution is clearly violated by a law exonerating the vendor of a chattel from the obligation to deliver the thing sold, or declaring the bill of sale which he has executed null and void. But while it has uniformly been conceded that

1 Fletcher v. Peck, 6 Cranch, 86.

WHAT IMPAIRS A GRANT.

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a State may not annul the title of a purchaser or those claiming under him, and revest it in the grantor, it was intimated in some of the earlier decisions that there is nothing in the Constitution of the United States, as originally framed, to preclude a State from stripping one man of his right or title for the purpose of conferring it on another who is a stranger to the grant or contract out of which it arose.1 In other words, it is not the taking of the property from the grantee, but the restoration of it to the grantor, contrary to the terms of his agreement, which violates the obligation and brings the case within the constitutional prohibition.

This would seem to be a narrow construction, calculated to defeat the object which the framers of the Constitution had in view. The title to real estate may ordinarily in the United States, and always in Pennsylvania, be traced back to an express or implied grant from the State; and when such is the case, the State obviously cannot resume what it gave without a breach of faith, whether the property is appropriated to its own use or bestowed on a third person. The argument is less convincing when the right is not derived, mediately or directly, from a public source, or as applied to chattels; but it may still be said that when property which A has sold to B is restored to A, it is the spoliation of B's right, and not the benefit conferred on A, which impairs the grant, and that it would be equally impaired if the legislature were to dispossess B without returning the goods or land to A, or appropriate them without compensation to a public use.

Whether such an exercise of despotic will does or does not impair the obligation of the grant considered as a contract, it should be treated as ex post facto and invalid, although the object be not punishment, but spoliation or the attainment of some personal or political-end.2 This view is

1 See Harvey v. Thomas, 10 Watts, 63, 66; Sharpless v. The Mayor of Philadelphia, 21 Pa. 147, 165, 167; Grim v. The Weissenberg School District, 57 Id. 433, 436.

2 See ante, p. 548; Grim v. The Weissenberg School District, 57 Pa. 433, 436; Palairet's Appeal, 67 Id. 479.

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A STATUTORY GRANT CANNOT

to a great extent sustained by the case of Fletcher v. Peck.1 The question there considered was the validity of an act of the legislature of the State of Georgia, declaring a statutory grant by a prior legislature null and void, as having been procured by corrupt means, and declaring that the patents which had been issued in pursuance thereof were equally invalid. It appeared on the face of the pleadings and from the special verdict that the plaintiff was a purchaser from the original grantee for value, and without notice of the alleged fraud. In delivering judgment, Marshall, C.-J., took the following ground: "It was doubtful whether a statutory grant could be impeached under any circumstances on the ground of fraud. Such an inquiry would involve considerations which could hardly be defined in principle or applied in fact. Must the corruption be direct? or would interest or undue influence of any kind be sufficient? Must the vitiating cause operate on a majority, or on what number, of the members? Should an act which accorded with the will of the people, and might have been sustained by the unbiassed judgment of the House, be set aside because other and improper motives had co-operated? However this might be, it was very clear that the State ought not in any such case to act as a judge in her own cause. The inquiry should be prosecuted judicially before some impartial tribunal. If this course had been pursued in the case under consideration, it would have appeared that the title of a bona fide purchaser was involved, and could not be impeached for a fraud in the original grant. The plaintiff had bought without notice of the corrupt means which were alleged to have been used in procuring the passage of the statute, and equity would not subject him to the penalties attached to an offence of which he was ignorant. The rescission of the former statute could not therefore be vindicated as a judicial act; and it might be doubted whether there was any ground on which it could be sustained. The general principle that one legislature might repeal a law which another had passed, was undeniable; but it was equally

1 6 Cranch, 86.

BE SET ASIDE FOR BRIBERY.

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true that if an act was done under a law, a succeeding legislature could not undo it. The past could not be recalled by the most absolute power. To sustain the statute by which the title of the plaintiff was alleged to be invalidated, it must therefore be contended that the legislature might devest vested rights in every instance, and take property fairly and honestly acquired without compensation. This perhaps might be a doubtful question if Georgia were a single sovereign power, subject to no other restrictions than those imposed in her own Constitution. But this was not the case. She was a part of a large empire, a member of the American Union, and subject to the restraints which the Constitution of that Union had imposed. By that Constitution it was provided that no State should pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. A bill of attainder might affect the life of an individual, or might confiscate his property, or it might do both. In this form the power of the legislature over the lives and fortunes of individuals was especially restrained. An ex post facto law was one rendering an act punishable in a manner in which it was not punishable when committed. Such a law might inflict penalties on the person, or might inflict pecuniary penalties to swell the public treasury. The legislature was then prohibited from passing a law by which a man's estate, or any part of it, should be seized for a crime which did not by some previous law render him liable to that punishment. Why, then, should violence be done to the natural meaning of words for the purpose of leaving to the legislature the power of seizing for public use the estate of an individual in the form of a law annulling the title by which he held that estate? No sufficient ground could be perceived for such a distinction. The rescinding act would have the effect of an ex post facto law. It forfeited the estate of the plaintiff for a crime not committed by himself, but by those from whom he purchased. This could not be done in the form of an ex post facto law or bill of attainder. Why, then, was it allowable in the form of a law annulling the original grant ?”

It would seem obvious from this argument, which, like

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CONFIRMING AN INVALID GRANT

all the reasoning of Chief-Justice Marshall on constitutional questions, is conspicuous for its breadth of thought and logical precision, that he viewed the clause prohibiting bills of attainder, ex-post facto laws, and laws impairing the obligation of contracts, as forming a whole intended to protect the citizen from retroactive legislation to the prejudice of vested rights in any form; and although dieta may be found tending to narrow this construction, there is no case in which the contrary has been adjudged. It is nevertheless established, under the authorities and on principle, that retroactive legislation is not necessarily invalid under the National Constitution or the organic laws of the several States, even when the effect is to defeat pre-existing rights, or enable a plaintiff to recover property which might otherwise have been legally withheld. The question is not an abstract one, but depends largely on the circumstances under and the end for which the power is exercised; and a reference to the books will show that there is a field within which such statutes may operate beneficially to the community and without prejudice to individuals. Laws prescribing periods of limitation, or regulating the order and admissibility of evidence, are retroactive, unless existing demands are exempted from their operation; and this is equally true of laws confirming transactions which, though good in substance, have failed in point of form. But inasmuch as such legislation does not impose a penalty, and tends to sustain what has been done or agreed on, or to compel suit to be brought within a reasonable period and while the transaction is still fresh in the minds of the parties, it is not ex post facto, nor does it impair the obligation of contracts.

A statute confirming an invalid deed or contract, or even creating a contract where none exists, may be unconstitutional on other grounds, but does not impair the obligation

1 See ante, p. 548.

2 Weed v. Donovan, 114 Mass. 187; Calder v. Bull, 3 Dallas, 386; Lycoming v. Union, 15 Pa. 170; Bleakney v. The Bank, 17 S. & R. 64; Weister v. Hade, 52 Pa. 474; Grim v. The Weissenberg School District, 57 Id. 433.