irregularity, defect, or want of original authority, was passed after suit brought, in which such irregularity or defect became matter of importance. The bringing of suit vests in a party no right to a particular decision;1 and his case must be determined on the law as it stands, not when the suit was brought, but when the judgment is rendered. It has been held that a statute allowing amendments to indictments in criminal cases might constitutionally be applied to pending suits; 3 and even in those States in which retrospective laws are forbidden, a cause must be tried under the rules of evidence existing at the time of the trial, though different from those in force when the suit was commenced. And if a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when their decision is rendered.5

1 Bacon v. Callender, 6 Mass. 309; Butler v. Palmer, 1 Hill, 324; Cowgill v. Long, 15 Ill. 203; Miller v. Graham, 17 Ohio, N. s. 1; State v. Squires, 26 Iowa, 340; Patterson v. Philbrook, 9 Mass. 151.

2 Watson v. Mercer, 8 Pet. 88; Mather v. Chapman, 6 Conn. 54; Bristol v. Supervisors, &c., 20 Mich. 93; Satterlee v. Mathewson, 16 S. & R. 169, and 2 Pet. 380.

3 State v. Manning, 11 Texas, 402.

Rich v. Flanders, 39 N. H. 304.

5 State v. Norwood, 12 Md. 195. In Eaton v. United States, 5 Cranch, 281, a vessel had been condemned in admiralty, and pending an appeal the act under which the condemnation was declared was repealed. The court held that the cause must be considered as if no sentence had been pronounced; and if no sentence had been pronounced, then, after the expiration or repeal of the law, no penalty could be enforced or punishment inflicted for a violation of the law committed while it was in force, unless some special provision of statute was made for that purpose. See also Schooner Rachel v. United States, 6 Cranch, 329; Commonwealth v. Duane, 1 Binney, 601; United States v. Passmore, 4 Dall. 372; Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v. Kimball, 21 Pick. 373; Hartung v. People, 22 N. Y. 100; Norris v. Crocker, 13 How. 129; Insurance Co. v. Ritchie, 5 Wall. 541; Ex parte McCardle, 7 Wall. 506; United States v. Tyner, 11 Wall. 88; Engle v. Shurtz, 1 Mich. 150. In the McCardle case the appellate jurisdiction of the United States Supreme Court in certain cases was taken away while a case was pending. Per Chase, Ch. J.: "Jurisdiction is power to declare the law; and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. This is not less clear upon authority than upon principle." But where a State has jurisdiction of a subject, e. g. pilotage, until Congress establishes regulations, and penalties are incurred under a State act, and afterwards Congress legislates on the subject, this does not repeal, but only suspends the State law;

But the healing statute must in all cases be confined to validating acts which the legislature might previously have author[*382] ized. *It cannot make good retrospectively acts or contracts which it had no power to permit or sanction in advance. There lies before us at this time a volume of statutes of one of the States, in which are contained acts declaring certain tax-rolls valid and effectual, notwithstanding the following irregularities and imperfections: a failure in the supervisor to carry out separately, opposite each parcel of land on the roll, the taxes charged upon such parcel, as required by law; a failure in the supervisor to sign the certificate attached to the roll; a failure in the voters of the township to designate, as required by law, in a certain vote by which they had assumed the payment of bounty moneys, whether they should be raised by tax or loan; corrections made in the roll by the supervisor after it had been delivered to the collector; the including by the supervisor of a sum to be raised for township purposes without the previous vote of the township, as required by law; adding to the roll a sum to be raised which could not lawfully be levied by taxation without legislative authority; the failure of the supervisor to make out the roll within the time required by law; and the accidental omission of a parcel of land which should have been embraced by the roll. In each of these cases, except the last, the act required by law, and which failed to be performed, might by previous legislation have been dispensed with; and perhaps in the last case there might be question whether the roll was rendered invalid by the omission referred to, and, if it was, whether the subsequent act could legalize it.2 But if township officers should assume to do acts under the power of taxation which could not lawfully be justified as an exercise of that power, no subsequent legislation could make them good. If, for instance, a part of the property in a taxing district should be assessed at one rate, and a part at another, for a burden resting equally upon all, there would be no such apportionment as is essential to taxation, and the roll would be beyond the reach of curative legisla

and a penalty previously incurred may still be collected. Sturgis v. Spofford, 45 N. Y. 446.

See ante, 379, and note 1.

2 See Weeks v. Milwaukee, 10 Wis. 242; Dean v. Gleason, 16 Wis. 1; post 515, note.

*

tion. And if persons or property should be assessed for taxation in a district which did not include them, the [* 383] assessment would not only be invalid, but a healing stat

ute would be ineffectual to charge them with the burden. In such a case there would be a fatal want of jurisdiction; and even in judicial proceedings, if there was originally a failure of jurisdiction, no subsequent law can confer it.3

Statutory Privileges and Exemptions.

The citizen has no vested right in statutory privileges and exemptions. Among these may be mentioned, exemptions from the performance of public duty upon juries, or in the militia, and the like; exemptions of property or person from assessment for the

See Billings v. Detten, 15 Ill. 218; Conway v. Cable, 37 Ill. 82; and Thames Manufacturing Co. v. Lathrop, 7 Conn. 550, for cases where curative statutes were held not effectual to reach defects in tax proceedings. As to what defects may or may not be cured by subsequent legislation, see Allen v. Armstrong, 16 Iowa, 508, Smith v. Cleveland, 17 Wis. 556, and Abbott v. Lindenbower, 42 Mo. 162. In Tallman v. Janesville, 17 Wis. 71, the constitutional authority of the legislature to cause an irregular tax to be reassessed in a subsequent year, where the rights of bona fide purchasers had intervened, was disputed; but the court sustained the authority as "a salutary and highly beneficial feature of our systems of taxation," and "not to be abandoned because in some instances it produces individual hardships." Certainly bona fide purchasers, as between themselves and the State, must take their purchases subject to all public burdens justly resting upon them. The case of Conway v. Cable is instructive. It was there held among other things, and very justly as we think, that the legislature could not make good a tax sale effected by fraudulent combination between the officers and the purchasers. In Miller v. Graham, 17 Ohio, N. s. 1, a statute validating certain ditch assessments was sustained, notwithstanding the defects covered by it were not mere irregularities; but that statute gave the parties an opportunity to be heard as to these defects.

2 See Wells v. Weston, 22 Mo. 385; People v. Supervisors of Chenango, 11 N. Y. 563; Hughey's Lessee v. Howell, 2 Ohio, 231; Covington v. Southgate, 15 B. Monr. 491; Morford v. Unger, 8 Iowa, 82; post, 499, 500.

3 So held in McDaniel v. Correll, 19 Ill. 228, where a statute came under consideration which assumed to make valid certain proceedings in court which were void for want of jurisdiction of the persons concerned. See also Denny v. Mattoon, 2 Allen, 361; Nelson v. Rountree, 23 Wis. 367; Griffin's Ex'r r. Cunningham, 20 Grat. 109, per Joynes, J.; Richards v. Rote, 68 Penn. St. 248; State v. Doherty, 60 Me. 504. Walpole v. Elliott, 18 Ind. 259, is distinguishable from these cases. In that case there was not a failure of jurisdiction, but an irregular exercise of it.

purposes of taxation; exemptions of property from being seized on attachment, or execution, or for the payment of taxes; exemption 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.5 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 legislature 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

1 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.

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

3 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.