1

purposes of taxation; exemptions of property from being seized on attachment, or execution, or for the payment of taxes; exemp tion from highway labor, and the like. All these rest upon reasons of public policy, and the laws are changed as the varying circumstances seem to require. The State demands the performance of military duty by those persons only who are within certain specified ages; but if, in the opinion of the legislature, the public exigencies should demand military service from all other persons capable of bearing arms, the privilege of exemption might be recalled, without violation of any constitutional principle. The fact that a party had passed the legal age under an existing law, and performed the service demanded by it, could not protect him against further calls, when public policy or public necessity was thought to require them.1 In like manner, exemptions from taxation are always subject to recall, when they have been granted merely as a privilege, and not for a consideration received by the public; as in the case of exemption of buildings for religious or educational purposes, and the like. So, also, are exemptions of property from execution. So, a license to carry on a particular trade for a specified period, may be recalled before the period has elapsed. So, as before stated, a penalty given by statute may be taken away by statute at any time before judgment is recovered." 1 Commonwealth v. Bird, 12 Mass. 443; Swindle v. Brooks, 34 Geo. 67; Mayer, Ex parte, 27 Texas, 715. And see Dale v. The Governor, 3 Stew. 387. 2 See ante, 280, 281, and notes. All the cases concede the right in the legis lature to recall an exemption from taxation, when not resting upon contract. The subject was considered in People v. Roper, 35 N. Y. 629, in which it was decided that a limited immunity from taxation, tendered to the members of voluntary military companies, might be recalled at any time. It was held not to be a contract, but "only an expression of the legislative will for the time being, in a matter of mere municipal regulation." And see Christ Church v. Philadelphia, 24 How. 300; Lord v. Litchfield, 36 Conn. 116.

3 Bull v. Conroe, 13 Wis. 238.

4 Of this there can be no question unless a fee was paid for the license; and well-considered cases hold that it may be even then. See Adams v. Hackett, 5 Gray, 597; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; ante, p. 283, note.

5 Oriental Bank v. Freeze, 6 Shep. 109. The statute authorized the plaintiff, suing for a breach of a prison bond, to recover the amount of his judgment and costs. This was regarded by the court as in the nature of the penalty; and it was therefore held competent for the legislature, even after breach, to so modify the law as to limit the plaintiff's recovery to his actual damages. See ante, p. 362, note 5, and cases cited.

So an offered bounty may be recalled, except as to so much as was actually earned while the offer was a continuing one;

and the fact that a party has purchased property or [* 384] incurred expenses in preparation for earning the bounty cannot preclude the recall. A franchise granted by the State with a reservation of a right of repeal must be regarded as a mere privilege while it is suffered to continue, but the legislature may take it away at any time, and the grantees must rely for the perpetuity and integrity of the franchises granted to them solely upon the faith of the sovereign grantor.2 A statutory right to have cases reviewed on appeal may be taken away, by a repeal of the statute, even as to causes which had been previously appealed. A milldam act which confers upon the person erecting a dam the right to maintain it, and flow the lands of private owners on paying such compensation as should be assessed for the injury done, may be repealed even as to dams previously erected.1 These illustrations must suffice under the present head.

Consequential Injuries.

It is a general rule that no one has a vested right to be protected against consequential injuries arising from a proper exercise of rights by others. This rule is peculiarly applicable to injuries resulting from the exercise of public powers. Under the police power the State sometimes destroys, for the time being, and perhaps permanently, the value to the owner of his property, without affording him any redress. The construction of a new way or the discontinuance of an old one may very seriously affect the

'East Saginaw Salt Manuf. Co. v. East Saginaw City, 19 Mich. 271; s. c. 2 Am. Rep. 82, and 13 Wall. 373. But as to so much of the bounty as was actually earned before the change in the law, the party earning it has a vested right which cannot be taken away. People v. State Auditors, 9 Mich. 327. And it has been held competent in changing a county seat to provide by law for compensation, through taxation to the residents of the old site. Wilkinson v.

Cheatham, 43 Geo. 258.

Per Smith, J., in Pratt v. Brown, 3 Wis. 611.

'Ex parte McCardle, 7 Wall. 506.

Pratt v. Brown, 3 Wis. 603. But if the party maintaining the dam had paid to the other party a compensation assessed under the statute, it might be otherwise.

For the doctrine damnum absque injuria, see Broom's Maxims, 185; Sedgwick on Damages, 30, 112.

value of adjacent property; the removal of a county or State capital will often reduce very largely the value of all the real estate of the place from whence it was removed: but in neither case can the parties, whose interests would be injuriously affected, enjoin the act, or claim compensation from the public. The general laws of the State may be so changed as to transfer, from one town to another, the obligation to support certain individuals, who may become entitled to support as paupers, and the Constitution will present no impediment.2 The granting of a charter to a new corporation may sometimes render valueless the franchise of an existing corporation; but unless the State by contract has precluded itself from such new grant, the incidental injury [* 385] can constitute no obstacle. But indeed it seems idle to specify instances, inasmuch as all changes in the laws of the State are liable to inflict incidental injury upon individuals, and, if every citizen was entitled to remuneration for such injury, the most beneficial and necessary changes in the law might be found impracticable of accomplishment.

*

We have now endeavored to indicate what are and what are not to be regarded as vested rights, and to classify the cases in which individual interests, in possession or expectancy, are protected

1 See ante, p. 208, and cases cited in note 2. Also, Wilkinson v. Cheatham, 43 Geo. 258.

390.

Goshen v. Richmond, 4 Allen, 460; Bridgewater v. Plymouth, 97 Mass.

3 The State of Massachusetts granted to a corporation the right to construct a toll-bridge across the Charles River, under a charter which was to continue for forty years, afterwards extended to seventy, at the end of which period the bridge was to become the property of the commonwealth. During the term the corporation was to pay 2001. annually to Harvard College. Forty-two years after the bridge was opened for passengers, the State incorporated a company for the purpose of erecting another bridge over the same river, a short distance only from the first, and which would accommodate the same passengers. The necessary effect would be to decrease greatly the value of the first franchise, if not to render it altogether worthless. But the first charter was not exclusive in its terms; no contract was violated in granting the second; the resulting injury was incidental to the exercise of an undoubted right by the State, and as all the vested rights of the first corporation still remained, though reduced in value by the new grant, the case was one of damage without legal injury. Charles River Bridge v. Warren Bridge, 7 Pick. 344, and 11 Pet. 420. See also Turnpike Co. v. State, 3 Wall. 210; Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35; English v. New Haven, &c., Co. 32 Conn. 240; Binghampton Bridge Case, 27 N. Y. 87, and 3 Wall. 51.

against being devested by the direct interposition of legislative authority. Some other cases may now be considered, in which legislation has endeavored to control parties as to the manner in which they should make use of their property, or has permitted claims to be created against it through the action of other parties against the will of the owners. We do not allude now to the control which the State may possess through an exercise of the police power, a power which is merely one of regulation with a view to the best interests and the most complete enjoyment of rights by all, but to that which, under a claim of State policy, and without any reference to wrongful act or omission by the owner, would exercise a supervision over his enjoyment of undoubted rights, or which, in some cases, would compel him to recognize and satisfy demands upon his property which have been created without his assent.

In former times sumptuary laws were sometimes passed, and they were even deemed essential in republics to restrain the luxury so fatal to that species of government.1 But the ideas which suggested such laws are now exploded utterly, and no one would seriously attempt to justify them in the present age. The right of every man to do what he will with his own, not interfering with the reciprocal right of others, is accepted among the fundamentals of our law. The instances of attempt to interfere with it have not been numerous since the early colonial days. A notable instance. of an attempt to substitute the legislative judgment for that of the proprietor, regarding the manner in which he should use and employ his property, may be mentioned. In the State of Kentucky an act was at one time passed to compel the owners of wild lands to make certain improvements upon them within a specified time, and declared them forfeited to the State in case the statute was not

1 Montesq. Sp. of the Laws, B. 7. Such Laws, though common in some countries, have never been numerous in England. See references to the legislation of this character, 4 Bl. Com. 170. Some of these statutes prescribed the number of courses permissable at dinner or other meal, while others were directed to restraining extravagance in dress. See Hallam, Mid. Ages, c. 9, pt. II. ; and as to Roman sumptuary laws, Encyc. Metrop. Vol. X. p. 110. Adam Smith said of such laws, "It is the highest impertinence and presumption in kings and ministers to pretend to watch over the economy of private people, and to restrain their expense, either by sumptuary laws, or by prohibiting the importation of foreign luxuries." Wealth of Nations, B. 2, c. 3. As to prohibitory liquor laws, see post, 581-584.

complied with. It would be difficult to frame, consistently with the general principles of free government, a plausible argument in support of such a statute. It was not an exercise of the right of eminent domain, for that appropriates property to some specific public use on making compensation. It was not taxation, for that is simply an apportionment of the burden of supporting the govern ment. It was not a police regulation, for that could not go beyond

preventing an improper use of the land with reference to [* 386] * the due exercise of rights and enjoyment of legal priv

ileges by others. It was purely and simply a law to forfeit a man's property, if he failed to improve it according to a standard which the legislature had prescribed. To such a power, if possessed by the government, there could be no limit but the legis lative discretion; and if defensible on principle, then a law which should authorize the officer to enter a man's dwelling and seize and confiscate his furniture if it fell below, or his food if it exceeded, an established legal standard, would be equally so. But in a free country such laws when mentioned are condemned instinctively.1

But cases may sometimes present themselves in which improvements actually made by one man upon the land of another, even though against the will of the owner, ought on grounds of strict equity to constitute a charge upon the land improved. If they have been made in good faith, and under a reasonable expectation on the part of the person making them, that he was to reap the benefit of them, and if the owner has stood by and suffered them to be made, but afterwards has recovered the land and appropriated the improvements, it would seem that there must exist against him at least a strong equitable claim for reimbursement of the expenditures made, and perhaps no sufficient reason why provision should not be made by law for their recovery.

Accordingly in the several States statutes will be found which undertake to provide for these equitable claims. These statutes are commonly known as betterment laws; and as an illustration of the whole class, we give the substance of that adopted in Vermont. It provided that after recovery in ejectment, where he or those through whom he claimed had purchased or taken a lease of the land, sup

The Kentucky statute referred to was declared unconstitutional in Gaines v. Buford, 1 Dana, 499. See also Violett v. Violett, 2 Dana, 326.