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ished by statute, the interest is the creature of positive law, and does not vest upon any act of disposition of the owner of the land. Its taking effect in possession must consequently depend upon the continued existence of the law, which authorizes and creates it. The repeal of the law, before it vests, does not operate retrospectively, in defeating the inchoate estate. But a law would most certainly operate retrospectively, making that unlawful or impossible which was possible and lawful when it was done, which changes or destroys the interest of a contingent remainderman, or executory devisee. Being retrospective, it will be

. void if it infringes any vested right, even though it does not amount to a “vested estate," as the term is understood in the law of real property.

Another interesting question is, how far powers of appointment may be changed or abolished by statute. A law would act retrospectively, if it were made to avoid the deed or grant of a power of appointment, and, if it interfered with vested rights, would be unconstitutional. A special power of appointment, to appoint the estate to certain persons under certain conditions and in accordance with directions given, would give to these beneficiaries a vested right to the exercise of their power in their favor, within the restrictions and limitations imposed by the donor, and the donee of the power can not suspend or extinguish the power by a release." It would be reasonable to claim that no statute could be so framed as to change or destroy such a power, because it would interfere with vested rights. But where the power was general, the donee having the power to appoint to whom he pleases, there is certainly no vested right to the exercise of the power in the person or persons to whom he might ultimately appoint the estate. But he would have an absolute right to the exercise of the power, either for himself or in trust for others; and this vested right would be violated by a statute, which either took away the power, or imposed upon its exercise limitations that did not exist at the time when the was created, and which have the effect of materially reducing the value of the power. Such a statute would consequently be unconstitutional and void.

1 Tiedeman on Real Prop. $ 561.


§ 118. Limitation of the right of acquisition. – One of the incidental rights of private property in lands is the right to acquire land. Land being the free gift of nature, , the regulation of it by the government must be directed in the interest of all, and as every one is guaranteed by the constitution the equal protection of the law, and inequality or partiality in the bestowal of privileges is prohibited, every one may be said to have an indefeasible right to acquire land, by complying with the general laws, which have been enacted for regulating its disposition. As long as there is a public domain, every one has a right to buy of the government, if he pays the price asked for the land. But where all the public lands have been taken up, the only way left open for the subsequent acquisition of land is by purchase from other private owners. If no one is willing to sell, one's right to acquire lands has in no way been violated. But if a seller can be found, any law which would interfere with the purchase, that is, prohibit a particular person or class of persons from acquiring any property in land whatever, would be an unconstitutional violation of a right which belongs to every citizen. Thus an ordinance was held to be unconstitutional by the Supreme Court of Texas, which absolutely prohibited any prostitute or lewd woman from residing in, or inbabiting any room, house, or place in the city, and forbade the leasing of any such premises to such a person. Even a chronic breaker of the laws has a right to possess a lodging-house. He has no right to purchase or lease a house for the purpose of prosecuting his criminal or nefarious trade, and even though it is a moral certainty that the criminal will use the house or room he occupies for immoral or criminal purposes, he can not be deprived of the use of said room or house as a lodging-house. The citizen has a constitutional right to acquire a local habitation, and no law can impose an absolute prohibition.

1 Milliken v. City Council, 54 Texas 388 (38 Am. Rep. 629).

It is true that if the Christian principle of the universal brotherhood of man were recognized as a principle of constitutional and international law, and nations merely considered as convenient and subordinate subdivisions of this world-wide brotherhood, we would accord to the alien, as well as to the citizen, the equal right to acquire a homestead within our borders. But this principle of Christianity has never been adopted into our law or into the law of any nation, civilized or uncivilized. On the contrary, international law is constructed on the idea of nationality as a cornerstone. The nations of the world are recognized by international law as distinct and independent political entities, having exclusive control over the country and people within their borders, and owing nothing to the people living outside of their jurisdictions. Although an alien born is entitled to the equal protection of the laws, instituted for the benefit of the citizen, while he is sojourning in the country, he has no absolute right to come into our country or to remain there. Unlike the citizen, he can at any moment be compelled to leave, with or without cause, unless he has acquired a right of ingress under a treaty with his own government. The alien, therefore, cannot be considered as having any absolute right to purchase or acquire lands.

It has long been the policy of England and of the States of this country to deny to the alien the right to hold lands within their borders. In many of the Western States,

I See ante, $ 60.

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statutes have been passed granting to the alien the unlimited right to purchase and hold lands, and many millions of acres are now the property of foreign capitalists, who have never lived in this country and never expect to.

But while an absolute probibition against the acquisition of lands by a particular person or class of persons would be unconstitutional, it would not be impossible to impose limitations upon the quantity of land which any one person may own.

The agrarian evil, known under the name of “ landlordism,” resulting from the concentration of lands into the bands of a relative few, and the formation of large farms, is one that will threaten every community at some stage of its political existence. It may be considered by some, with some show of reason, to be questionable, whether the situation would be improved by a statute, which prohibited any one person from holding more than a given quantity of land; but no serious constitutional objection can be raised to such legislation. It would certainly be a constitutional exercise of police power, as long as it was not made to operate against vested rights, by making void the purchase of lands that have already been completed. In NewYork there is a constitutional prohibition of agricultural leases for a longer period than twelve years. Applied to future purchasers, even providing for the confiscation without compensation of the lands acquired in excess of the quantity allowed by law, the law would most unquestionably be constitutional.

When it is said that the citizen has a natural right to acquire a certain quantity of land for lawful purposes, domestic corporations are not included under that term. It is probably true that corporations already created with the power to purchase lands, whose charters are not subject to repeal by the legislature, have as indefeasible a right to purchase lands as the natural person; but statutes of mortmain may, subject to this exception, be passed probibiting absolutely the acquisition of lands by corporations. The rights and powers of a corporation depend altogether upon the will of the legislature.

1 As to the right of expropriation, see post, $ 1216. 2 Clark o. Barnes, 70 N. Y. 301 (32 Am. Rep. 306).

§ 119. Regulation of the right of alienation. - It can hardly be questioned that the government, in making sale of public lands, may provide that the interest which is thus granted shall not be assigned. For land being the absolute property of the State, any condition may be imposed in the original grant of it, that the welfare of the community may seem to require. If effective measures for the prevention of the concentration of lands in the hands of a few are considered essential to the prosperity of the State, the government may lawfully impose an absolute prohibition against alienation, for the purpose of attaining that end.

But in no State is there any law depriving the owner of lands of the right of alienation (except that in some of the States, statutes have been enacted which declare estates for years of short duration, and tenancies froin year to year, to be inalienable without the consent of the landlord); nor did the common-law at any time prohibit alienation altogether. Under the feudal system, absolute alienation, of a kind which would shift to the shoulders of the alienee the burden of performing the duties which the feudal tenure imposed upon the tenant, was prohibited, but it was always possible to sublet the land to another, while the original tenant remained liable to the lord for the rendition of the services due to him. On the contrary, the history of the law of real property reveals a constant struggle on the part of the common classes, to remove all restrictions upon the alienation of lands. The statute quia emptores, declared

i Tiedeman on Real Prop., $$ 21, 23. 2 18 Edw. I.

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