question; that the position that a State in exempting certain property from taxation relinquished a part of its sovereign power, was an unfounded assertion; that it was as competent for a State to make a contract in regard to exemptions from taxation as in regard to any other matter; and the act of 1851 was held unconstitutional and void. *

The same question, or one closely analogous, was presented shortly afterwards in another shape, and it was decided that, where the State of Ohio in 1845 chartered a bank, in the charter of which it was stipulated that the tax which the bank should pay should be computed on a certain principle, and should not exceed a certain sum; and in 1852 the Legislature passed an act assessing taxes on the bank to a greater amount and on a different principle, the law was in conflict with the clause of the Constitution of the United States relating to the obligation of contracts, and void. And the fact that the people of the State had in 1851 adopted a new Constitution, in which it was declared that taxes on banks should be imposed in the mode which the act of 1852 purported to carry out, was held not to release the State from the obligations imposed on it by the Constitution of the United States. †

Again, where the Legislature of the State of Maryland accepted from a banking corporation a bonus as a consideration for the franchise granted, and pledged the faith of the State not to impose any further tax or burden upon them during the continuance of their charter, it was held, that this was a pledge against additional taxation; that the exemption oper ated as well in favor of the stockholders personally as of the capital stocks of the banks; and that a tax upon the stockholders by reason of their stock impaired the obligation of this contract; and the tax was therefore declared illegal. †

*State Bank of Ohio v. Knoop, 16 How. 369. Catron, J., Daniel, J., and Campbell, J., dissented. See also the case of the Ohio Life Insurance and Trust Co. v. Dubolt, 16 Howard, 416, on the same banking laws. The opinions in these cases, as well of the court as of the dissenting members, are of great interest in regard to the subject of State contracts, the general nature of legislative power, exemptions from taxation, and the extent to

which State decisions control the Supreme Court of the United States.

Dodge v. Woolsey, 18 How. 830; Woolsey v. Dodge, 6 M'Lean, 142.

Gordon v. Appeal Tax Court, 3 How. 133. The same result in regard to contracts for exemption from taxation, has been declared in

Connecticut, but doubted in New Hamp shire. Osborn v. Humphrey, 7 Conn. $35; Brewster v. Hough, 10 N. H. 138; ante, p. 511.

But, in analogy to the rules requiring a strict interpretation to be applied to all corporate grants, it is held, that although a contract may be made exempting a party from taxation it must be very clear and express. The taxing power of a State is never presumed to be relinquished unless the intention to relinquish is declared in clear and unequivocal terms.* So, when a State enacted that the real property belonging to a hospital "should be, and remain free from taxes," it was held, that there being nothing in the exempting statute in the nature of a contract, it was liable to repeal. "No duty," said the Supreme Court of Pennsylvania, "is imposed on the institution as the consideration of the grant; it is required to do nothing; it is left to pursue its own course as freely as before." +

In the cases just examined, we have seen that the legislative acts are sometimes held to create a contract, and treated accordingly. But we have already stated that in the term contracts are not included rights, or rather interests, growing out of measures of public policy. So, no contract is created by a stat

In New Jersey also it has been decided that when an incorporated company is by its charter exempt from taxation, the stock in the hands of the stockholders cannot be taxed; it represents and is the title to the property of the company, and therefore is included in the exemption of the charter. The State v. Branin, 3 Zabriskie, p. 485. In this case the absolute power of the Legislature over the subject of taxation, is strongly declared.

See also on the subject of exemption from taxation of stockholders of institutions themselves exempt, Johnsen v. The Commonwealth, 7 Dana, 342; Tax Cases, 12 Gill & J. 117; Gordon's Ex'ors v. The Mayor of Balt. 5 Gill, 236; Smith v. Burley, 9 New Hampshire, 423. See the subject of statutory exemptions from taxation elaborately considered also in Landon v. Litchfield, 11 Conn. 251.

* Philadelphia & Wilmington R. R. Co. v. Maryland, 10 Howard, 393; Providence Bank v. Billings & Pittman, 4 Peters, 514.

the Congregational and Episcopal societies, and providing for the appointment of trustees, but with a proviso that it should be in the power of the Legislature, on the future application of any new denomination of Christians in the town, to make a new appropriation. In 1814, the proviso reserving power to the Legislature was repealed, and the actual appropriation confirmed. In 1837, the Legisla ture on the application of the Baptists passed a resolve, that a portion of the income should be paid to that society. It was held, that under the special circumstances of the case, the repeal of the proviso was neither a renuncia. tion nor a final execution of the power reserved to the Legislature, and did not preclude them from exercising the power reserved; and that the resolve of 1837 was valid. But the court said, "Whether this power, reserved as a perpetual benefit in favor of denominations of Christians who should afterwards spring up in that town, could be renounced by one Legislature so as to bind their successors, if done after notice to all parties then existing; or whether the court would be bound to presume that an act done by the Legislature was done after due notice,-are questions of difficulty, on which we give no opinion." Per Shaw, C. J. in Congr. Soc. in Lanesboro' v. Curtis, 22 Pick. 332; see also Humphrey v. Whitney, 3 Pick. 158.

Ante, p. 581.

ute fixing the emoluments of a public office; and where a Pennsylvania act reduced the per diem compensation of a public officer during the term for which the office, with its remuneration, had been fixed by a previous statute, it was held that the original law created no contract.* So, a grant by a Legislature to a county, of a sum forfeited, may be refunded. Such a grant creates no contract, on the ground that it is made to a public body, and for public not private purposes. So, the grant of a ferry franchise to a town, creates no contract by which the town can claim a permanent right to the ferry; and the Legislature may, in its pleasure, discontinue the ferry; and this, both on the ground that the ferry franchise related only to public interests, and also that the town was a mere organization for public purposes, and that the grant was rather in the nature of legislation than of compact.

The same doctrine has been applied to municipal ordinances; and it has been decided that the corporation of cities cannot make permanent and irrepealable contracts in regard to matters of public interest; or, as the proposition is sometimes put in other words, that they cannot strip themselves of any portion of their legislative power. So, it has been held by the Supreme Court of the United States, in regard to an ordinance for grading streets; | and so in New York, in regard to ordinances regulating the interment of the dead. In the latter case, it was determined that ordinances declaring it unlawful to inter in cities, and which by their necessary operation annulled or revoked the covenants and permissions contained in prior grants of land ceded for cemetery purposes, were valid. It was held that this was so, although the contract was thus annulled by the very body that made it. It was said, "There is, indeed, a seeming inconsistency; but the defendants, the city, had no power to limit the legislative dis

* Butler et al. v. Pennsylvania, 10 How. 416. The State of Maryland v. Balt. & Ohio R. R. 3 Howard, 551. See also, The People v. Morris, 13 Wend. 325; The Commonwealth v. Bacon, 6 Serg. & Rawle, 322; The Commonwealth v. Mann, 5 Watts & Sergeant, 418; Barker v. The City of Pittsburgh, 4 Barr, Penn, R. 51.

East Hartford v. Hartford Bridge Co. 10 Howard, 534. See also, Mills v. St. Clare Company, 8 Howard, 569, 581.

Goszler v. The Corporation of Georgetown, 6 Wheat. 593.

Presb. Church v. City of N. Y. 5 Cowen, 542; Coates & Stuyvesant v. The Mayor of N. Y. 7 Cow. 58. So decided, also, by Nelson, J., in The Mayor v. Brittain (not reported), in regard to a street-cleaning contract. I am indebted for this last case to the kindness of M. V. B. Wilroyson, Esq., assistant counsel to the corporation.

cretion by covenant, and they are not estopped from giving this answer."*

The most serious question that yet exists in regard to the true meaning of the phrase contract under this clause, relates to the subject of marriage. It has been insisted that the Constitutional clause only related to pecuniary contracts; and in regard to marriage, it has been urged that the agreement is not strictly a contract, but a civil relation, entirely subject to the control of municipal law. On this point, different and conflicting decisions have been made. In Missouri, adhering to an intimation very early made obiter by the Supreme Court of the United States, it has been decided that marriage is a contract within the meaning of the Constitution, and protected by the clause in question; and an act of the General Assembly granting a divorce, was held unconstitutional and void.

On the other hand, in Maine, the Supreme Court has held that the clause in regard to the obligation of contracts, does

* Presb. Church v. City of N. Y. 5 Cowen,

p. 542.

In England, it has been said that a deed, or covenant, cannot operate in direct opposition to an act of Parliament; which negatives the idea of the party being prevented by estoppel from setting up the act. Fair Title v. Gilbert, 2 T. R. 171.

In connection with this, I may here notice the question whether an agreement to do a thing lawful at the time is annulled by a statute declaring the act unlawful. In an early case, 1683, it was held, that if the thing to be done was lawful at the time when the defendant entered into the covenant, though afterwards prohibited by act of Parliament, yet the covenant was binding. Brason v. Dean, 3 Mod. 39.

But a different and more rational doctrine was soon after laid down; and it was declared that the distinction between the cases when a statute repeals a covenant and when it does not, is this-when a man covenants not to do a thing which was lawful for him to do, and an act of Parliament comes after and compels him to do it, then the act repeals the covenant; so, if a man covenant to do a thing which is lawful, and an act of Parliament comes and hinders him from doing it, the covenant is repealed; but if a man covenants not to do a thing which then was unlawful, and an act comes and makes it lawful to do it,-such act of Parliament does not repeal the covenant. Brewster v. Kitchin, 1 Ld. Ray. 317; s. c. 1 Salk. 198. The same rule has been declared in New York, and applied to municipal cor

porations, as above. Presb. Church v. City of N. Y. 5 Cowen, 542.

+ Dartmouth College v. Woodward, 4 Wheaton, 518.

The State, to the use of Gentry v. Fry, 4 Miss. 120. The divorce was also pronounced unconstitutional on the ground that the grant of a divorce was a judicial and not a legislative act. See this case, also, for an elaborate discussion on the subject of the distribution of powers between the Legislature and the judiciary and the executive. The case of Bryson v. Campbell, 12 Miss. 498, was decided in 1849, on the authority of Gentry's case, which was said to be the settled law of the State.

Several other points decided in this case may be noticed here. Retrospective laws are said neither to accord with sound legislation, nor with the fundamental principles of the social compact. Yet the Constitution of the United States has not made any provision against their passage, and many of the State Constitutions contain no guard against them. All such retrospective laws may be passed, and when passed are binding and obligatory on the judiciary. The Constitution, however, of this State has provided against these laws in express terms; and, therefore, all such as have a retrospective action, either upon contracts or other acts, are by this provision void. P. 135.

It is conceded that the Legislature is not bound to assign a cause for the passage of any law. P. 156.

The right of the judiciary to decide a law

not relate or apply to marriages. They said, however, at the same time, that under the clause in regard to the division of power into executive, legislative, and judicial, the Legislature had no power to grant divorces in cases where the Supreme Court had jurisdiction; but that the power to grant divorces existed where that tribunal had no jurisdiction.

In Connecticut, too, legislative divorces have been sustained; and it has been said that they were neither invalid as within the Constitutional clause, nor repugnant to the State Constitution as an assumption of judicial power by the Legisla ture; but much stress was laid on the appalling consequences of declaring all the legislative divorces of the State void; and the result appears to have been arrived at more on that ground than on any other. It has also been said, in New York, that marriage was not a contract, in the strict common-law sense of that term.‡

In Florida, the marriage contract is considered within the protection of the Constitution. But in Kentucky it is treated as an institution created by the public law, and subject to the public will. And this, according to Mr. Chancellor Kent, is the true construction.**

The act of New York, of 1848, entitled, "An Act for the more effectual protection of the property of married women," of which the object was to make a complete change of the relations of husband and wife as regards property, declares that the real and personal property, and the rents, issues, and profits thereof, of any female now married, shall not be subject to the disposal of her husband, but shall be her sole and separate property, except so far as the same may be liable for the debts

to be unconstitutional, follows inevitably from its duty to declare what the law is. P. 178.

In New York, in the following cases, it has been intimated that the contract of marriage, and its incidents, as the wife's right of dower, are within the provisions of the Constitution as to the obligation of contracts. Kelly v. Harrison, 2 J. Cases, 29; Jackson v. Edwards, 22 Wend. 498; Lawrence v. Miller, 2 Coms. 245. See, also, Moore v. The Mayor, 4 Seld. 110, as to dower, and Westervelt v. Gregg, 2 Kernan, 202, as to the husband's right to the wife's choses in action. Ante, p.

Ponder v. Graham, 4 Florida, 23. Maguire v. Maguire, 7 Dana, 184. ** Kent Comm. vol. i, p. 417, note. I cite the 8th edition.

In New Hampshire, it has been decided that a grant of a divorce is a judicial proceeding; that the Legislature may provide by general laws, having no retrospective effect, for the dissolution of existing marriages; but that an act altering the law of the contract, and empowering the courts to grant divorces for causes which, when they occurred, furnished no ground for the dissolution of the marriage, is a retrospective law, within the provision of the Constitution of that State, and as such void. Clark v. Clark, 10 N. H. 381. See, in this case, the comments of Parker, C. J., on the Dartmouth College Case.