But where these decisions are in conflict, this court must determine between them. And certainly a Constitution acted on as undisputed for nearly fifty years by every department of the government, and supported by judicial decision, ought to be regarded as sufficient to give to the instrument a fixed and definite meaning. Contracts with the state authorities were made under it.. And upon a question as to the validity of such a contract, the court, upon the soundest principles of justice, is bound to accept the construction it received from the state authorities at the time the contract was made." And, later, referring to the case of Rowan v. Runnels,59 he says: "The court then said, that it would always feel itself bound to respect the decisions of the state courts, and from time to time as they were made, would regard them as conclusive in all cases upon the construction of their own Constitution and laws; but that it ought not to give them a retroactive effect, and allow them to render invalid contracts entered into with citizens of other States which, in the judgment of this court, were lawful at the time they were made. It is true, the language of the court is confined to contracts with citizens of other States, because it was a case of that description which was then before it. But the principle applies with equal force to all contracts which were within its jurisdiction. 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 governments, and administered in the 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." 60 In later cases, coming to the Supreme Court by writ of error from the state courts, the same doctrine is declared and applied.61 595 How. 134; 12 L. ed. 85. 60 The last clause states a broader doctrine than has since been upheld with reference to cases coming to the federal Supreme Court by writ of error to the state courts. See infra. 61 Jefferson Branch Bank v. Skelly, 1 Black, 436; 17 L. ed. 173; Louisiana v. Pillsbury, 105 U. S. 278; 26 L. ed. 1090; McGahey v. Virginia, 135 U. S. 662; 10 Sup. Ct. Rep. 972; 34 L. ed. 304; Mobile & Ohio R. R. Co. v. Ten § 512. Doctrine in Cases Reaching the Supreme Court by Writs of Error to State Courts. It is to be observed that all of these cases had reached the Supreme Court by writ of error to the state courts, and that the federal tribunal had been appealed to upon the ground that the contracts had been impaired by state laws enacted subsequent to the time they were entered into. Had there been no such legislation there would have been no constitutional basis for the exercise of the appellate jurisdiction of the federal court. In New Orleans Waterworks Co. v. Louisiana Sugar Co.62 the court say: "In order to come within the provision of the Constitution of the United States which declares that no State shall pass a law impairing the obligation of contracts, not only must the obligation of a contract have been impaired, but it must have been impaired by a law of a State. The prohibition is aimed at the legislative power of the State and not at the decisions of its courts." 63 This doctrine is reaffirmed in IIuntington v. Attrill and again in Bacon v. Texas. In this last case the court, summing up the doctrine, say: "Where the federal question upon which the jurisdiction of this court is based grows out of an alleged impairment of a contract, it is now definitely settled that the contract can only be impaired within the meaning of this clause of the Constitution, and so as to give this court jurisdiction on error to a state court, by some subsequent statute of the State which had been upheld or effect given it by the state court. . . . If the judgment of the state court gives no effect to the subsequent law of the State, and the state court decides the case upon grounds independent of that law, a case is not made for review by this court upon any ground of the impairment of a contract. above cited cases announce this principle." The nessee, 153 U. S. 486; 14 Sup. Ct. Rep. 968; 38 L. ed. 793; Bacon v. Texas, 163 U. S. 207; 16 Sup. Ct. Rep. 1023; 41 L. ed. 132; McCullough v. Virginia, 172 U. S. 102; 19 Sup. Ct. Rep. 134; 43 L. ed. 382; Boyd v. Alabama, 94 U. S. 645; 24 L. ed. 302, it would seem to be contra. 62 125 U. S. 18; 8 Sup. Ct. Rep. 741; 31 L. ed. 607. 63 146 U. S. 657; 13 Sup. Ct. Rep. 224; 36 L. ed. 1123. 64 163 U. S. 207; 16 Sup. Ct. Rep. 1023; 41 L. ed. 132. The same doctrine is repeated in Central Land Co. v. Laidley, Hanford v. Davies, and Weber v. Rogan. 67 66 65 It would appear, however, that the Supreme Court has shown strong disposition to find, when possible, an impairing statute, and thus to justify its appellate jurisdiction for the protection of contracts in cases originating in the state courts. The cases of McCullough v. Virginias and Muhlker v. New York and Harlem Railroad Co. sufficiently illustrate this. § 513. McCullough v. Virginia. McCullough v. Virginia was one of a number of cases coming before the Supreme Court of the United States growing out of the attempt of the State of Virginia to avoid the acceptance, in payment of certain dues to the State, of interest coupons to certain of its bonds, which coupons by the law providing for the issuance and sale of the bonds, it had agreed so to receive. After various devices, extending through a considerable period of years, had one after another been frustrated by the decisions of the Supreme Court of the United States declaring their unconstitutionality, during all of which time there had never been any question as to the constitutionality of the original law providing for the bonds and the acceptance by the State of the coupons in payment of public dues, and though the act had been repeatedly before the highest court of the State, that tribunal at last in McCullough v. Virginia declared that the coupon provision of the original act was in itself unconstitutional. Inasmuch as the Virginia court in its decision did not consider the subsequent legislation of the State, but confined itself wholly to declaring the original act void, it was urged before the federal Supreme Court to which the case was brought on writ of error, that, by the decision of the state court, no subsequent legislative act had been applied, and, therefore, that the case was 65 159 U. S. 103; 16 Sup. Ct. Rep. 80; 40 L. ed. 91. not brought within the rule stated in New Orleans Waterworks Co. v. Louisiana Sugar Co. and Bacon v. Texas. That court, however, upheld its jurisdiction, saying: "It is true that the [Virginia] court of appeals in its opinion only incidentally refers to statutes passed subsequent to the act of 1871, and places its decision distinctly on the ground that the act was void in so far as it related to the coupon contract, but at the same time it is equally clear that the judgment did give effect to the subsequent statutes, and it has been repeatedly held by this court that in reversing the judgment of the courts of a State we are not limited to a mere consideration of the language used in the opinion, but may examine and determine what is the real substance and effect of the decision." Whatever may have been the equities of the case, and regarding this there can be little doubt, the above reasoning seems scarcely satisfactory. Had there never been any subsequent legislation on the part of Virginia with reference to these coupons, the effect of the decision of the court of appeals of Virginia would have been exactly the same as that which in fact it did have, or rather would have had, had its judgment been affirmed. It is, therefore, difficult to see how its execution would have put subsequent legislation into force. To be sure, the same result was reached as that which would have been obtained had the later laws been enforced, but, certainly the result was not reached through their enforcement.70 § 514. Muhlker v. N. Y. & H. Ry. Co. In the Muhlker case, coming to the Supreme Court by writ of error from the supreme court of the State of New York, it was held that the owner of a piece of real property abutting on a street in New York who had acquired his title at a time when the state court had held that the owners of such abutting property had a right to easements of light, air and access, which could not be taken from them without compensation by an ele vated railroad, was protected by the obligation clause from impairment of this right. An elevated railway, to be constructed, 70 See the dissenting opinion of Justice Peckham. owners. owned, and operated by a private company, had been authorized by a state law of 1892, but the denial in the state court that this contract right had been thereby impaired was based not upon the assertion that the construction of the railway did not impair the plaintiff's contract right, but upon the ground that the earlier doctrine that he had a contract right at all was incorrect. It is thus apparent that, speaking at all strictly, the validity of the act of 1892 was not in question, that act merely providing for the erection of the railroad, and containing no provision one way or the other regarding compensation to abutting propertyThe federal court, however, assumed jurisdiction on writ of error. After referring to the earlier state doctrine that there was a right to compensation, the court say: "When the plaintiff acquired his title those cases were the law of New York, and assured to him that his easements of light and air were secured by contract as expressed in those cases, and could not be taken from him without payment of compensation. And this is the ground of our decision. We are not called upon to discuss the power, or the limitations upon the power, of the courts of New York to declare rules of property or change or modify their decisions, but only to decide that such power cannot be exercised to take away rights which have been acquired by contract and have come under the protection of the Constitution of the United States. And we determine for ourselves the existence and extent of such contract. This is a truism; and when there is a diversity of state decisions the first in time may constitute the obligation of the contract and the measure of rights under it.' 71 In Sauer v. City of New York (206 U. S. 536; 27 Sup. Ct. Rep. 686; 51 L. ed. 1176) the facts were similar to those in the Muhlker case, except that the elevated structure was a viaduct for a purely public use, and the federal court held that the abutting property-owners had no contract right to compensation as against such a purely public use of the street, inasmuch as the earlier doctrine of the state courts had not been to that effect. Commenting upon the McCullough and Muhlker cases, Professor W. F. Dodd in the Illinois Law Review (December, 1909) says: "They seem to warrant the statement that the federal Supreme Court will, in practically any case, be able to find a state statute to serve as a 'lay figure' in order to jus |