784 the municipality. MAILS AND TELEGRAMS. That this was the least of two evils, may readily be conceded; but it does not follow that it should be regarded as a good, because two or more public works directed to the same end may hinder and embarrass each other, rather than benefit the community, and the tolls which would sustain one enterprise on an efficient basis may be inadequate for both. A business may, however, be so far public and essential to the general welfare that it cannot properly be thrown open to all, and should therefore be conducted by the government directly, or through agencies which it constitutes and can control. Such is confessedly the case as regards the mails; and telegrams are so far within the principle as to be subject to the local police power, whether State or municipal. But they are also instruments of commerce, which, as regards interstate and foreign messages, may be regulated by Congress and are beyond the control of the States; and a State cannot therefore impose a tax on telegrams to or from other States, or provide how they shall be delivered beyond her borders.1 The right to do whatever is indispensably necessary for the preservation of life, health, order, or morals, reaches its highest point during insurrection or invasion, when it takes the form of martial law, and may temporarily supersede the rules of the common law and even the restraints imposed by the Constitution, although still resting on the ground of necessity, or of a reasonable and probable cause for believing that the necessity exists, and incapable of being carried further, even by a legislative fiat.3 The suspension of the habeas corpus act is an instance of this kind, and might be valid in an extreme case, though it were not recognized by the Constitution; and other instances may grow out of the stress caused 1 Telegraph Co. v. Texas, 105 U. S. 460; Pensacola R. R. Co. v. Western Union Telegraph Co., 96 Id. 1; Western Union Telegraph Co. v. Pendleton, 122 Id. 347. See ante, p. 483. 2 See ante, p. 761; Taylor v. Nashville R. R. Co., 6 Caldwell, 646. The Mayor v. Lord, 18 Wend. 826; Pacific R. R. Co. v. United States, 120 U. S. 227, 234. POLICE POWER AS MARTIAL LAW. 785 by the presence of a hostile force. During the heat of battle, or the defence or assault of a fortified town, the combatants cannot always pause to consider where their shells and balls. may fall, or the injuries which they may inflict on innocent persons who take no part in the strife and are entitled to whatever protection the law can afford. Under these circumstances the sufferers have no more claim to compensation than if the loss were occasioned by a hurricane or an earthquake, and must set it down as due to causes which governments cannot prevent and are not responsible for. When, however, bridges, railways, or buildings are deliberately destroyed to impede the operations of an enemy, or provisions burned to prevent them from falling into his hands, the case would seem to fall within the constitutional provision which forbids the taking of private property for public use without compensation. Such is the inclination of the Supreme Court in The Pacific R. R. Co. v. United States, and the view taken by Vattel. The right is, nevertheless, to a great extent without a remedy, unless one is specifically provided by Congress, because the government cannot be sued, and property which has been consumed cannot be regained, as may land which is occupied under the right of eminent domain without payment. If the clause prohibiting the laws impairing the obligation of contracts applies only to retroactive legislation, that which forbids deprivation without due process guards the future as well as the present and precludes any statute taking away the remedy for injuries to persons not yet born and rights subsequently acquired, or rendering it less effectual by limiting the amount of damages. As was observed in The Passenger R. R. Co. v. Boudrou, "the people have withheld 1 See Pacific R. R. Co. v. United States, 120 U. S. 227, 234; Vattel, Droit des Gens, liv. iii., c. 15, sect. 232. * See Mitchell v. Harmony, 13 Howard, 115, 134; United States v. Russell, 13 Wallace, 623. 120 U. S. 227, 234–239. Central R. R. Co. v. Cook, 1 Winst. (N. C.) L. 319; Passenger R. R. Co. v. Boudrou, 92 Pa. 475, 481; Rhines v. Clark, 51 Id. 96, 101. power from the legislature to deprive the injured parties of their remedy, or so circumscribe it that a jury can give only a pitiful fraction of the damage sustained. Nothing less than the full amount of the pecuniary loss which a man suffers from an injury to him in his lands, goods, or person, fills the measure secured in the Declaration of Rights." The rule was applied in this instance, although the action was brought for a loss resulting from the negligence of the defendants' servants, and not for any act or default done or committed by themselves. LECTURE XXXV. Retroactive Legislation not necessarily unconstitutional. - Technical Defects may be cured legislatively, but not Defects arising from a Failure of Consideration or the Non-fulfilment of a Condition. — Usurious and other Illegal Contracts, Invalid Marriages, and Contracts barred by the Statutes of Limitations within the Principle, which also includes Statutes enlarging the Rules of Evidence. A vested Right cannot be retroactively divested, or a Moral converted into a Legal Obligation. Wills and Voluntary Grants cannot be confirmed retroactively. The Legislature may ratify any Act which they could have authorized. An Invalid Municipal Tax or Subscription susceptible of Ratification. - An Express Restraint on Alienation cannot be set aside by Legislation, but it may supply a Want of Power to convey. The Power to do the Act must exist at the Time of Ratification, and it must have been done for or in behalf of the Body or Person by which it is ratified. IT has been shown that a law confirming an invalid contract, and compelling the grantor or contractor to do as he agreed, does not impair the obligation which the Constitution guarantees; and the weight of authority is that such a statute does not work an unconstitutional deprivation even when the effect is to take away property which might otherwise legally have been retained. There are, nevertheless, numerous instances where it is difficult to draw the line between divestiture and confirmation. A statute imposing a contractual obligation where no contract has been made, by giving a right of suit, is obviously as much a deprivation as if the thing or money were taken directly instead of through a judicial decree; and it may be contended that the case is substantially the same where there is a contract, but no obligation in the sense in which the term is used in the Constitution of the United States. 1 See ante, p. 738. 788 RETROACTIVE LEGISLATION NOT A promise which fails for a want of consideration, or a promise which is a nudum pactum from any other cause, works no change in the relations of the parties. If it is a promise to convey land, the vendor cannot be compelled to give a deed; if to pay money, there is no debt. And so of a contract that is forbidden by the statute, or contrary to the policy of the common law. A law assuming retroactively to render such a promise obligatory, or to compel the promisor to carry it into effect, virtually provides that one party shall render what he does not owe, and that the other may recover that to which he has no valid claim. Such an enactment does not impair the obligation of the contract, either technically or in the common acceptation of the term, but it may obviously work the deprivation which Magna Charta jealously forbids.1 The logical inference would therefore seem to be that choses in action, like things in possession, must be tested by the law as it existed when they arose, and cannot be affected by subsequent legislation. It was accordingly decided in The New York & Oswego R. R. Co. v. Van Horn2 that where a subscription to a railway by a private person fails at the time in not conforming to the existing law, it cannot be rendered obligatory by a subsequent statute. "Previous to the passage of this act the subscription was wholly invalid, and could not be enforced by either party. If the effect claimed be given to the act, it makes a binding contract between the parties where no contract previously existed, and in effect takes $200 of the defendant's property and transfers it to the plaintiff, a private corporation. This no act of the legislature could do. It can never take the private property of one individual, without his consent, and give it to another.3 Such an act comes in direct conflict with the constitutional provision that no person shall be deprived of life, liberty, 1 New York & Oswego R. R. Co. v. Van Horn, 57 N. Y. 477. 2 57 N. Y. 497. 8 Matter of Albany Street, 11 Wend. 148; Matter of John and Cherry Street, 19 Id. 659; Taylor v. Porter, 4 Hill, 140; Varick v. Smith, 5 Paige, 137; Cochrane v. Van Surlay, 20 Wend. 365; Embury v. Conner, 3 N. Y. 511. |