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full right to modify or even to abolish it.1 And the same rule will apply to the case of dower; though the difference in the requisites of the two estates are such that the inchoate right to dower does not become property, or any thing more than a mere expectancy at any time before it is consummated by the husband's death. In neither of these cases does the marriage alone give a vested right. It gives only a capacity to acquire a right. The same remark may be made regarding the husband's expectant interest in the after-acquired personalty of the wife: it is subject to any changes in the law made before his right becomes vested by the acquisition.
Change of Remedies.
Again: the right to a particular remedy is not a vested right. This is the general rule ; and the exceptions are of those peculiar cases in which the remedy is part of the right itself. As a general rule every State has complete control over the remedies which it offers to suitors in its courts. It may abolish one class of courts and create another. It may give a new and additional remedy for a
· Hathorn v. Lyon, 2 Mich. 93 ; Tong v. Marvin, 15 Mich. 60. And see the cases cited in the next note.
* Barbour v. Barbour, 46 Me. 9; Lucas v. Sawyer, 17 Iowa, 517; Noel v. Ewing, 9 Ind. 57; Moore v. Mayor, &c., of New York, 4 Sandf. 456, and 8 N. Y. 110; Pratt v. Tefft, 14 Mich. 191; Reeve, Dom. Rel. 103, note. A doubt as to this doctrine is intimated in Dunn v. Sargeant, 101 Mass. 340.
3 Westervelt v. Gregg, 12 N. Y. 208; Norris v. Beyea, 13 N. Y. 273; Kelly v. McCarthy, 3 Bradf. 7. And see Plumb v. Sawyer, 21 Conn. 351; Clark v. McCreary, 12 S. & M. 347; Jackson v. Lyon, 9 Cow. 664; ante, 287–292. If, however, the wife has a right to personal property subject to a contingency, the husband's contingent interest therein cannot be taken away by subsequent legislation. Dunn v. Sargeant, 101 Mass. 336. In Sutton v. Asker, 66 N. C. 172, it was decided that where by the statute the woman's right of dower was subject to be defeated by the husband's conveyance, a subsequent statute restoring her common-law rights was inoperative as to all existing marriages.
* See ante, p. 290, and cases cited. The giving of a lien by statute does not confer a vested right, and it may be taken away by a repeal of the statute. Watson v. N. Y. Central R. R. Co., 47 N. Y. 157; Woodbury v. Grimes, 1 Col. 100.
• Rosier v. Hale, 10 Iowa, 470; Smith v. Bryan, 34 Ill. 377; Lord v. Chadbourne, 42 Me. 429; Rockwell v. Hubbell's Adm’rs, 2 Doug. (Mich.) 197 ; Cusic v. Douglas, 3 Kansas, 123; Holloway v. Sherman, 12 Iowa, 282; McCormick v. Rusch, 15 Iowa, 127.
right already in existence. And it may abolish old remedies and * substitute new. If a statute providing a remedy [* 362] is repealed while proceedings are pending, such proceedings will be thereby determined, unless the legislature shall otherwise provide ;? and if it be amended instead of repealed, the judgment pronounced in such proceedings must be according to the law as it then stands. And any rule or regulation in regard to the remedy which does not, under pretence of modifying or regulating it, take away or impair the right itself, cannot be regarded as beyond the proper province of legislation.*
But a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Where it springs from contract, or from the principles of the common law, it is not competent for the legislature to take it away. And every man is entitled to a certain
| Hope v. Jackson, 2 Yerg. 125; Foster v. Essex Bank, 16 Mass. 245 ; Paschall v. Whitsett, 11 Ala. 472; Commonwealth v. Commissioners, &c., 6 Pick, 508; Whipple v. Farrar, 3 Mich. 436; United States v. Samperyac, 1 Hemp.
1 118; Sutherland v. De Leon, 1 Texas, 250; Anonymous, 2 Stew. 228. See also Lewis .v. McElvain, 16 Ohio, 347; Trustees, &c. v. McCaughey, 2 Ohio, N. S. 152; Hepburn v. Curts, 7 Watts, 300; Schenley v. Commonwealth, 36 Penn. St. 29; Bacon v. Callender, 6 Mass. 303; Brackett v. Norcross, 1 Greenl. 92; Ralston v. Lothain, 18 Ind. 303; White School House v. Post, 31 Conn. 241.
? Bank of Hamilton v. Dudley, 2 Pet. 492; Ludlow v. Jackson, 3 Ohio, 553; Eaton v. United States, 5 Cranch, 281; Schooner Rachel v. United States, 6 Cranch, 329.
3 See cases cited in last note. Also, Commonwealth v. Duane, 1 Binney, 601; United States v. Passmore, 4 Dall. 372; Patterson v. Philbrook, 9 Mass. 151; Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v. Kimball, 21 Pick. 373; Hartung v. People, 21 N. Y. 99; State v. Daley, 29 Conn. 272; Rathbun v. Wheeler, 29 Ind. 601 ; State v. Norwood, 12 Md. 195; Bristol v. Supervisors, &c., 20 Mich. 95; Sumner v. Miller, 64 N. C. 688.
* See ante, pp. 287–292.
• Dash v. Van Kleek, 7 Johns. 477; Streubel v. Milwaukee and M. R. R. Co., 12 Wis. 67; Clark v. Clark, 10 N. H. 386 ; Westervelt v. Gregg, 12 N. Y. 211; Thornton v. Turner, 11 Minn. 339; Ward v. Brainerd, 1 Aik. 121; Keith v. Ware, 2 Vt. 174; Lyman v. Mower, ib. 517; Kendall v. Dodge, 3 Vt. 360; State v. Auditor, &c., 33 Mo. 287; Griffin v. Wilcox, 21 Ind. 370; Norris v. Doniphan, 4 Met. (Ky.) 385; Terrill v. Rankin, 3 Busb, 453. An equitable title to lands, of which the legal title is in the State, is under the same constitutional protection that the legal title would be. Wright v. Hawkins, 28 Texas, 452. Where an individual is allowed to recover a sum as a penalty, the right may be taken away at any time before judgment. Oriental Bank v. Freeze,
remedy in the law for all wrongs against his person or his property, and cannot be compelled to buy justice, or to submit to conditions not imposed upon his fellows as a means of obtaining it. Nor can a party by his misconduct so forfeit a right that it may be taken from him without judicial proceedings in which the forfeiture shall be declared in due form. Forfeitures of rights and property cannot be adjudged by legislative act, and confiscations without a judicial hearing after due notice would be void as not being due process of law. Even Congress, it has been held, has no power to protect parties assuming to act under the authority of the general government, during the existence of a civil war, by depriving
persons illegally arrested by them of all redress in the [* 363] courts.3 * And if the legislature cannot confiscate property
or rights, neither can it authorize individuals to assume at
6 Shep. 109; Engle v. Schurtz, 1 Mich. 150 ; Confiscation Cases, 7 Wall. 454; Washburn v. Franklin, 35 Barb. 599; Welch v. Wadsworth, 30 Conn. 149; O'Kelly v. Athens Manuf. Co., 36 Geo. 51 ; United States v. Tynen, 11 Wall. 88; Chicago & Alton R.R. Co. v. Adler, 56 Ill. 350; post, 383. See also Curtis v. Leavitt, 17 Barb. 309, and 15 N. Y. 9; Coles v. Madison County, Breese, 115; Parmelee v. Lawrence, 48 Ill. 331; post, 375–376.
1 Thus, a person cannot be precluded by test oaths from maintaining suits. McFarland v. Butler, 8 Minn. 116; ante, 289, note. See post, 368, 369, note.
? Griffin v. Mixon, 38 Miss. 434. See next note. Also Rison v. Farr, 24 Ark. 161 ; Hodgson v. Millward, 3 Grant's Cas. 406. But no constitutional principle is violated by a statute which allows judgment to be entered up against a defendant who has been served with process, unless within a certain number of days he files an affidavit of merits. Hunt v. Lucas, 97 Mass. 404.
3 Griffin v. Wilcox, 21 Ind. 370. In this case the act of Congress of March 3, 1863, which provided “that any order of the president or under bis authority, made at any time during the existence of the present rebellion, shall be a defence in all courts, to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress," was held to be unconstitutional. The same decision was made in Johnson v. Jones, 44 III. 142. It was said in the first of these cases that “ this act was passed to deprive the citizens of all redress for illegal arrests and imprisonments; it was not needed as a protection for making such as are legal, because the common law gives ample protection for making legal arrests and imprisonments.” And it may be added that those acts wbich are justified by military or martial law are equally legal with those justified by the common law. So in Hubbard v. Brainerd, 35 Conn. 563, it was decided that Congress could not take away a vested right to sue for and recover back an illegal tax which had been paid under protest to a collector of the national
See also Bryan v. Walker, 64 N. C. 146. Nor can the right to have
their option powers of police, which they may exercise in the condemnation and sale of property offending against their regulations, or for the satisfaction of their charges and expenses in its management and control, rendered or incurred without the consent of its owners. And a statute * which authorizes a [* 364] party to seize the property of another, without process or
a void tax sale set aside be made conditional on the payment of the illegal tax. Wilson v. McKenna, 52 III. 44; and other cases cited, post, 368, 369, note. The case of Norris v. Doniphan, 4 Met. (Ky.) 385, may properly be cited in this connection. It was there held that the act of Congress of July 17, 1862, “to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,” in so far as it undertook to authorize the confiscation of the property of citizens as a punishment for treason and other crimes, by proceedings in rem in any district in which the property might be, without presentment and indictment by a grand jury, without arrest or summons of the owner, and upon such evidence of his guilt only as would be proof of any fact in admiralty or revenue cases, was unconstitutional and void, and therefore that Congress had no power to prohibit the State Courts from giving the owners of property seized the relief they would be entitled to under the State laws. A statute which makes a constitutional right to vote depend upon an impossible condition is void. Davies v. McKeeby, 5 Nev. 369. See further State v. Staten, 6 Cold. 243; Rison v. Farr, 24 Ark. 161; Hlodgson v. Millward, 3: Grant, 406. Where no express power of removal is conferred on the executive, he cannot declare an office forfeited for misbehavior; but the forfeiture must be declared in judicial proceedings. Page v. Hardin, 8 B. Monr. 648; State v. Pritchard, Law Reg. Aug. 1873, p. 514.
1 The log-driving and booming corporations, which were authorized to be formed under a general law in Michigan, were empowered, whenever logs or lumber were put into navigable streams without adequate force and means provided for preventing obstructions, to take charge of the same, and cause it to be run, driven, boomed, &c., at the owner's expense; and it gave them a lien on the same to satisfy all just and reasonable charges, with power to sell the property for those charges and for the expenses of sale, on notice, either served personally on the owner, or posted as therein provided. In Ames v. Port Huron Log-Driving and Booming Co., 11 Mich. 147, it was held that the power which this law assumed to confer was in the nature of a public office; and Campbell, J., says: “ It is difficult to perceive by what process a public office can be obtained or exercised without either election or appointment. The powers of government are parcelled out by the Constitution, which certainly contemplates some official responsibility. Every officer not expressly exempted is required to take an oath of office as a preliminary to discharging his duties. It is absurd to suppose that any official power can exist in any person by his own assumption, or by the employment of some other private person; and still more so to recognize in such an assumption a power of depriving individuals of their property. And it is plain that the exercise of such a power is an act in its nature public, and not private. The case, however, involves more than the assumption of control. The
warrant, and to sell it without notification to the owner, for the punishment of a private trespass, and in order to enforce a penalty against the owner, can find no justification in the Constitution.
corporation, or rather its various agents, must of necessity determine when the case arises justifying interference; and having assumed possession, it assesses its own charges; and having assessed them, proceeds to sell the property seized to pay them, with the added expense of such sale. These proceedings are all ex parte, and are all proceedings in inritum. Their validity must therefore be determined by the rules applicable to such cases. Except in those cases where proceedings to collect the public revenue may stand upon a peculiar footing of their own, it an inflexible principle of constitutional right that no person can legally be devested of his property without remuneration, or against his will, unless he is allowed a hearing before an impartial tribunal, where he may contest the claim set up against him, and be allowed to meet it on the law and the facts. When his property is wanted in specie, for public purposes, there are methods assured to him whereby its value can be ascertained. Where a debt or penalty or forfeiture may be set up against him, the determination of his liability becomes a judicial question; and all judicial functions are required by the Constitution to be exercised by courts of justice, or judicial officers regularly chosen. He can only be reached through the forms of law upon a regular hearing, unless he has by contract referred the matter to another mode of determination."
A statute of New York authorized any person to take into his custody and possession any animal which might be trespassing upon his lands, and give notice of the seizure to a justice or commissioner of highways of the town, who should proceed to sell the animal after posting notice. From the proceeds of the sale, the officer was to retain his fees, pay the person taking up the animal fifty cents, and also compensation for keeping it, and the balance to the owner, if he should claim it within a year. In Rockwell v. Nearing, 35 N. Y. 307, 308, Porter, J., says of this statute: “The legislature has no authority either to deprive the citizen of his property for other than public purposes, or to authorize its seizure without process or warrant, by persons other than the owner, for the mere punishment of a private trespass. So far as the act in question relates to animals trespassing on the premises of the captor, the proceedings it authorizes have not even the mocking semblance of due process of law. The seizure may be privately made; the party making it is permitted to conceal the property on his own premises; he is protected, though the trespass was due to his own connivance or neglect; he is permitted to take what does not belong to him without notice to the owner, though that owner is near and known; he is allowed to sell, through the intervention of an officer, and without even the form of judicial proceedings, an animal in which he has no interest by way either of title, mortgage, pledge, or
and all to the end that he may receive compensation for detaining it without the consent of the owner, and a fee of fifty cents for his services as an informer. He levies without process, condemns without proof, and sells without execution." And he distinguishes these proceedings from those distraining cattle, damage feasant, which are always remedial, and under which the party was authorized to detain the property in pledge for the payment of his damages. See