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erty against their will, and by somewhat summary proceedings. In every government there is inherent authority to appropriate the property of the citizen for the necessities of the State, and constitutional provisions do not confer the power, though they generally surround it with safeguards to prevent abuse. The restraints are, that when specific property is taken, a pecuniary compensation, agreed upon or determined by judicial inquiry, must be paid; and in other cases property can only be taken for the support of the government, and each citizen can only be required to contribute his proportion to that end. But there is no rule or principle known to our system under which private property can be taken from one person and transferred to another, for the private use and benefit of such other person, whether by general law or by special enactment. The purpose must be public, and must have reference to the needs or convenience of the public. No reason of general public policy will be sufficient, it seems, to validate such transfers when they operate upon existing vested rights.1
Nevertheless, in many cases and many ways remedial legislation may affect the control and disposition of property, and in some cases may change the nature of rights, give remedies where none existed before, and even devest legal titles in favor of substantial equities where the legal and equitable rights do not chance to concur in the same persons.
The chief restriction upon this class of legislation is, that vested rights must not be disturbed ; * but in its appli- [* 358] cation as a shield of protection, the term "vested rights" is not used in any narrow or technical sense, or as importing a power of legal control merely, but rather as implying a vested interest which it is right and equitable that the government should recognize and protect, and of which the individual could not be deprived arbitrarily without injustice. The right to private prop
1 Taylor v. Porter, 4 Hill, 140; Osborn v. Hart, 24 Wis. 91; s. c. 1 Am. Rep. 161. In matter of Albany Street, 11 Wend. 149, it is intimated that the clause in the Constitution of New York, withholding private property from public use except upon compensation made, of itself implies that it is not to be taken in invitum for individual use. And see matter of John and Cherry Streets, 19 Wend. 676. A different opinion seems to have been held by the Supreme Court of Pennsylvania, when they decided in Harvey v. Thomas, 10 Watts, 63, that the legislature might authorize the laying out of private ways over the lands of unwilling parties, to connect the coal-beds with the works of public improvement, the constitution not in terms prohibiting it. See note to p. 531, post.
erty is a sacred right; not, as has been justly said, “ introduced as the result of princes' edicts, concessions and charters, but it was the old fundamental law, springing from the original frame and constitution of the realm.” 1
But as it is a right which rests upon equities, it has its reasonable limits and restrictions ; it must have some regard to the general welfare and public policy; it cannot be a right which is to be examined, settled, and defended on a distinct and separate consideration of the individual case, but rather on broad and general grounds, which embrace the welfare of the whole community, and which seek the equal and impartial protection of the interests of all.?
And it may be well at this point to examine in the light of the reported cases the question, What is a vested right in the constitutional sense ? and when we have solved that question, we may be the better able to judge under what circumstances one may be justified in resisting a change in the general laws of the State affecting his interests, and how far special legislation may control his rights without coming under legal condemnation. In organized society every man holds all he possesses, and looks forward to all he hopes for, through the aid and under the protection of the laws; but as changes of circumstances and of public opinion, as well as other reasons affecting the public policy, are all the while calling for changes in the laws, and as these changes must influence more or less the value fand stability of private possessions, and strengthen or destroy well-founded hopes, and as the power to make very many of them could not be disputed without denying the right of the political community to prosper and advance, it is obvious that many rights, privileges, and exemptions which usually pertain to ownership under a particular state of the law, and many reasonable expectations, cannot be regarded as vested rights in any legal sense. In many cases the courts, in the exercise of their ordinary jurisdiction, cause the property vested in one person to be trans
Arg. Nightingale v. Bridges, Show. 138. See also Case of Alton Woods, 1 Rep. 45 a; Alcock v. Cook, 5 Bing. 340; Bowman v. Middleton, 1 Bay, 282; ante, p. 37 and note, p. 175 and note.
2 The evidences of a man's rights - the deeds, bills of sale, promissory notes, and the like are protected equally with his lands and chattels, or rights and franchises of any kind; and the certificate of registration and right to vote may be properly included in the category. State v. Staten, 6 Cold. 243. See Davies v. McKeeby, 5 Nev. 369.
ferred to another, either through the exercise of a statutory power, or by the direct force of their judgments or decrees, or by means of compulsory conveyances. If in these cases the courts have jurisdiction, they proceed in accordance with “ the law of the land ;” and the right of one man is devested by way of enforcing a higher and better right in another. Of these cases we do not propose to speak : constitutional questions cannot well arise concerning them, unless they are attended by circumstances of irregularity which are supposed to take them out of the general rule. All vested rights are held subject to the laws for the enforcement of public duties and private contracts, and for the punishment of wrongs; and if they become devested through the operation of those laws, it is only by way of enforcing the obligations of justice and good order. What we desire to reach in this connection is the true meaning of the term “ vested rights” when employed for the purpose of indicating the interests of which one cannot be deprived by the mere force of legislative enactment, or by any other than the * recognized modes of transferring title [* 359] against the consent of the owner, to which we have alluded.
Interests in Expectancy.
And it would seem that a right cannot be regarded as a vested right, unless it is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws: it must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a de. mand made by another. Acts of the legislature, as has been well said by Mr. Justice Woodbury, cannot be regarded as opposed to fundamental axioms of legislation, “ unless they impair rights which are vested; because most civil rights are derived from public laws; and if, before the rights become vested in particular individuals, the convenience of the State procures amendments or repeals of those laws, those individuals have no cause of complaint. The power that authorizes or proposes to give, may always revoke before an interest is perfected in the donee.” And Chancellor Kent, in speaking of retrospective statutes, says that while
1 Merrill v. Sherburne, 1 N. H. 213. See Ride v. Flanders, 39 N. H. 304.
such a statute, “affecting and changing vested rights, is very generally regarded in this country as founded on unconstitutional principles, and consequently inoperative and void,” yet that “this doctrine is not understood to apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts, or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy by curing defects and adding to the means of enforcing existing obligations. Such statutes have been held valid when clearly just and reasonable, and conducive to the general welfare, even though they might operate in a degree upon vested rights.” 1
And it is because a mere expectation of property in the future is not considered a vested right, that the rules of descent are held subject to change in their application to all estates not already passed to the heir by the death of the owner. No one is heir to the living; and the heir presumptive has no other reason to rely
upon succeeding to the property than the promise held out [* 360] by the statute of descents. But this promise is no * more
than a declaration of the legislature as to its present view of public policy as regards the proper order of succession, - a view
which may at any time change, and then the promise may properly be withdrawn, and a new course of descent be declared. The expectation is not property ; it cannot be sold or mortgaged; it is not subject to debts; and it is not in any manner taken notice of by the law until the moment of the ancestor's death, when the statute of descents comes in, and for reasons of general public policy transfers the estate to persons occupying particular relations to the deceased in preference to all others. It is not until that moment that there is any vested right in the person who becomes heir, to be protected by the Constitution. An anticipated interest in property cannot be said to be vested in any person so long as the owner of the interest in possession has full power, by virtue of his ownership, to cut off the expectant right by grant or devise.?
If this be so, the nature of estates must, to a certain extent, be
11 Kent, Com. 455. See Briggs v. Hubbard, 19 Vt. 91 ; Bridgeport o. Housatonic R. R. Co., 15 Com. 492; Baugher v. Nelson, 9 Gill, 299; Gilman v. Cutts, 23 N. H. 382.
? In re Lawrence, 1 Redfield, Sur. Rep. 310. But after property has once vested under the laws of descent, it cannot be divested by any change in those laws. Norman v. Heist, 5 M. & S. 171. See post, 379, and notes.
subject to legislative control and modification. In this country estates tail have been very generally changed into estates in feesimple, by statutes the validity of which is not disputed. Such statutes operate to increase and render more valuable the interest which the tenant in tail possesses, and are not therefore open to objection by him. But no other person in these cases has any vested right, either in possession or expectancy, to be affected by such change; and the expectation of the heir presumptive must be subject to the same control as in other cases.4
The cases of rights in property to result from the marriage relation must be referred to the same principle. At the common law the husband immediately on the marriage succeeded to certain rights in the real and personal estate which the wife then possessed. These rights became vested rights at once, and any subsequent alteration in the law could not take them away.5 But other interests * were merely
were merely in expectancy. He [* 361] could have a right as tenant by the courtesy initiate in the wife's estates of inheritance the moment a child was born of the marriage, who might by possibility become heir to such estates. This right would be property, subject to conveyance and to be taken for debts; and must therefore be regarded as a vested right, no more subject to legislative interference than other expectant interests which have ceased to be mere contingencies and become fixed. But while this interest remains in expectancy merely, that is to say, until it becomes initiate, - the legislature must have
1 Smith on Stat, and Const. Construction, 412. ? De Mill v. Lockwood, 3 Blatch. 56.
3 On the same ground it has been held in Massachusetts that statutes converting existing estates in joint tenancy into estates in common were unobjectionable. They did not impair vested rights, but rendered the tenure more beneficial. Holbrook v. Finney, 4 Mass. 567; Miller v. Miller, 16 Mass. 59; Anable v. Patch, 3 Pick. 363; Burghardt v. Turner, 12 Pick. 534. Moreover, such statutes do no more than either tenant at the common law has a right to do, by conveying his interest to a stranger. See Bombaugh v. Bombaugh, 11 S. & R. 192; Wildes 0. Vanvoorbis, 16 Gray, 147.
+ See 1 Washb. Real Pr. 81-84 and notes. The exception to this statement, if any, must be the case of tenant in tail after possibility of issue extinct; where the estate of the tenant has ceased to be an inheritance, and a reversionary right has become vested. 6 Westervelt v. Gregg, 12 N. Y. 208.