CHAPTER XXIX. RETROACTIVE LAWS. 285. Validity of Retroactive Statutes. 286. Retroactive Effect Avoided by Construction. 288. Statutes Curing Administrative Action. 289. Curing Defective Judicial Proceedings. VALIDITY OF RETROACTIVE STATUTES. 285. Retroactive laws are not unconstitutional, unless they are in the nature of ex post facto laws or bills of attainder, or unless they impair the obligation of contracts, or divest vested rights, or unless they are specifically forbidden by the constitution of the particular state. A retroactive (or retrospective) law is one which looks backward or contemplates the past; one which is made to affect acts or transactions occurring before it came into effect, or rights already accrued, and which imparts to them characteristics, or ascribes to them effects, which were not inherent in their nature in the contemplation of the law as it stood at the time of their occurrence. Bills of attainder and ex post facto laws are both included in this class. A bill of attainder or an ex post facto law is always retroactive; but not all retroactive laws are bills of attainder or ex post facto laws. The latter terms, as we have already seen, relate only to the imposition of pains or penalties or the conduct of criminal trials. Again, all laws which impair the obligations of contracts are retroactive. For if they related only to future contracts, they could not be said to have this effect, because contracts are made with reference to existing laws. Laws which have the effect of divesting vested rights are also of this character; for the phrase "vested right" implies something settled or accrued in the past, on which the new statute is to operate. There are also numerous classes of retroactive laws which are constitutionally objectionable for the reason that they exceed the powers of the legislature or invade the province of one of the other departments of the government. But unless the law in question belongs to one of the classes mentioned above, or is open to some one of the objections described, the mere fact that it is retroactive in its operation will not suffice to justify the courts in declaring it unconstitutional, unless all laws of that character are prohibited by the constitution of the state. No such prohibition is found in the federal constitution. If a state statute does not impair the obligation of contracts or partake of the nature of a bill of attainder or an ex post facto law, its retrospective character does not make it inconsistent with the national constitution.1 But in the constitutions of some few of the states, we find a specific prohibition against retroactive legislation, eo nomine. RETROACTIVE EFFECT AVOIDED BY CONSTRUCTION. 286. A statute will be construed to operate in futuro only (that is, it will not be given a retroactive effect by construction), unless the legislature has so explicitly expressed its intention to make the act retrospective that there is no place for a reasonable doubt on the subject.2 The reason for this rule is the general tendency to regard retroactive laws as dangerous to liberty and private rights, on account of their liability to unsettle vested rights or disturb the legal effect of prior transactions. "Retrospective laws being in their nature odious, it ought never to be presumed the legislature intended to pass them, where the words will admit of any other meaning." And where the law is clearly and explicitly retrospective, it will still be subjected, in this respect, to a rigid interpretation, so that its retrospective features may not be further extended than is absolutely required by the language of the act." 1 Satterlee v. Matthewson, 2 Pet. 380. * Auffmordt v. Rasin, 102 U. S. 620. & Underwood v. Lilly, 10 Serg. & R. (Pa.) 97, 101. 4 Thames Manuf'g Co. v. Lathrop, 7 Conn. 550. 3 CURATIVE STATUTES. 287. The legislature may retrospectively validate transactions between private persons, which would otherwise fail to have the effect which the parties intended to give them, either in consequence of a want of capacity, or of a failure to observe formalities which the law imposed and which it might dispense with. It is first to be noticed that the object of curative and confirmatory acts is to give effect to the intention of the parties, to enable them to carry into effect some transaction which they have designed and attempted, but which fails of its expected legal consequences only by reason of some statutory disability or some irregularity in their action. Hence it would not be competent, by an act of this kind, to make the transaction carry a legal effect which the parties did not contemplate, e. g., to turn an attempted mortgage into a deed absolute. In the next place, statutes of this kind are intended to do justice, and they cannot be objected to by the party whose invalid contract or conveyance they validate. Such a party cannot claim that he has a vested right to insist upon the ineffectualness of the contract or conveyance. On the contrary, the law recognizes an equity in the other party to the transaction, and it is to this that the curative act gives effect. But retrospective curative statutes cannot be allowed to operate to the detriment of the intervening rights of third persons. Thus if, after the execution of an invalid contract or conveyance, the person who made it deals with a third person, in good faith, in respect to the same subject matter, the rights thus acquired by such third person cannot be cut out by the validation of the prior contract or conveyance. The invalidity of the transaction may arise from the want of authority or capacity in the person who attempted to transfer rights to another. And this may be of two kinds, natural or legal. If it is of the former sort, the legislature cannot supply the lack of Thompson v. Morgan, 6 Minn. 292 (Gil. 199). For capacity; if of the latter description, it may be remedied. example, if one undertakes to transfer property which he does not own, or, by such a transfer, to effect a fraud upon the rights of third persons, his want of capacity to make a title is not such as the legislature may dispense with retroactively. And for a like reason, it could not give effect to a deed made by a lunatic. But on the other hand, legal disabilities, whether existing at common law or by statute, such as the disability of a married woman, a minor, or a spendthrift, could be removed at any time by an act of the legislature, and therefore their invalidating effect may be taken away, in particular cases, by a curative statute, when it is necessary to do justice and carry into effect the intention of the parties. When the invalidity of the transaction arises from irregularity in the action of the parties, or failure to observe technical requirements, it may be cured, provided the formalities neglected were such as the law established and might dispense with, and the defects were not jurisdictional. To illustrate the foregoing principles, we may cite the rule that, "when a deed or other conveyance is invalid by reason of the failure of the parties thereto to conform to some formality imposed by the statute, the legislature, which imposed the formality, may by a subsequent act cure the defect, and give the deed such effect as the parties thereto intended that it should have at the time of its execution." 7 Thus, a curative act validating deeds which were ineffectual to convey title only because the acknowledgment was informal, taken before a wrong officer, or otherwise defective, is good and valid. 8 But when a deed of a corporation is executed by the president and secretary under their private seals, and there is nothing to show that they were authorized by the directors to make the deed, this is not such an irregularity or defect as can be cured by a subsequent statute." The legislature may authorize a county or other municipal corporation to subscribe to the stock of a rail • Single v. Marathon Co., 38 Wis. 363. 7 Pelt v. Payne, 60 Ark. 637, 30 S. W. 426. 8 Smith v. Gale, 144 U. S. 509, 12 Sup. Ct. 674; Bryan v. Bryan (Ark.) 34 8. W. 260; Shrawder v. Snyder, 142 Pa. St. 1, 21 Atl. 796; Carson v. Thompson, 10 Wash. 295, 38 Pac. 1116. • McCroskey v. Ladd (Cal.) 28 Pac. 216. road company and to issue bonds to pay such subscription; and if, by reason of mistake, carelessness, or other cause, the conditions precedent to the exercise of such power by the municipality have not been complied with, the legislature can cure all irregularities by subsequent legislation, and make such contracts as valid and binding as if all the conditions precedent had been strictly complied with.10 STATUTES CURING ADMINISTRATIVE ACTION. 288. Defective legal proceedings, involving administrative or executive action, may be validated by retrospective statute in all cases where the legislature would have power to declare that the same acts, or the same manner of doing them, should in the future be valid and effectual, but not where the defects are jurisdictional. If the invalidating defect concerns the rights of parties to such an extent that the transaction, thus defective, cannot be said to answer the requirement of due process of law, it is obvious that the legislature cannot give it validity by subsequent statute. But if the defect consists merely in the omission or neglect of some formality (that is, something which the positive law has required, but which is not inherently necessary to the validity of the transaction), or in an imperfect or irregular manner of complying with the requirement of some such formality, then the legislative authority is ample to cure the defective proceeding by a retroactive statute. Tax Proceedings. It is within the constitutional power of the legislature, under proper limitations, to pass general or special acts curing or validating irregular and defective proceedings in the assessment and collection of taxes. But this power is bounded by the general rule above stated. Proceedings in the assessment and collection of taxes which the legislature might have dispensed with, or made immaterial, in the statute under which the proceedings are taken, may be dispensed with or made immaterial by a statute passed after the 10 Thomson v. Lee Co., 3 Wall. 327; Granniss v. Cherokee Tp., 47 Fed. 427; Ball v. Presidio Co. (Tex. Civ. App.) 27 S. W. 702; Bell v. Railroad Co., 91 Va. 99, 20 S. E. 942. |