51

language in public,48 or making it an offense to send obscene matter, etc.,49 or letters, circulars, or other publications concerning lotteries and similar enterprises,50 through the mails, or in interstate commerce, or to utter or publish seditious statements in time of war,' or to send threatening letters for the purpose of extorting money.53 Nor do they prevent a court from summarily punishing a person for contempt because of publications respecting a pending cause which tend to obstruct the administration of justice therein.54

It has been held that the right to speak and write freely carries with it the correlative right to remain silent, and that statements or communications wanted for private information cannot be coerced by mere legislative mandate at the will of one of the parties and against the will of the other.55 But other courts have held that the right of free speech does not include the absolute right to remain silent under all conditions and when doing so may injure the rights of others and the public, and that the legislature may make it a crime to refuse to give information necessary to the public welfare under certain circumstances,56

§ 51. Ex post facto laws-In general. It is provided by the Constitution of the United States that no "ex post facto law" shall be

48 See § 1119, infra.

49 See § 1472, infra.

50 See § 1489, infra.

51 See § 1499, infra.

52 See § 955, infra.

53 Such a statute does not violate the constitutional guaranty when construed so as to include threats to injure a debtor in his person, property, credit or reputation unless the debt is paid. State v. McCabe, 135 Mo. 450, 37 S. W. 123, 34 L. R. A. 127, 58 Am. St. Rep. 589.

54 Patterson v. People of State of Colorado, 205 U. S. 454, 51 L. Ed. 879, 27 Sup. Ct. 556, 10 Ann. Cas. 689; United States v. Toledo Newspaper Co., 220 Fed. 458.

55 Wallace v. Georgia, C. & N. R. Co., 94 Ga. 732, 22 S. E. 579; Atchison, T. & S. F. R. Co. v. Brown, 80 Kan. 312, 102 Pac. 459, 23 L. R. A. (N. S.) 247, 133 Am. St. Rep. 213, 18 Ann. Cas. 346.

So it has been held that a statute requiring reports of civic leagues, etc., concerning the character, qualifications or fitness of candidates for office to state the facts on which they are based and the names and addresses of the persons from whom information in respect to the candidates was obtained, is void. Ex parte Harrison, 212 Mo. 88, 110 S. W. 709, 16 L. R. A. (N. S.) 950, 126 Am. St. Rep. 557, 15 Ann. Cas. 1. And the same has been held by some of the courts to be true of statutes requiring an employer to give to an employee who is discharged or quits the service a letter truly stating the nature and length of his service and the cause for which he was discharged or quit, although others have held to the contrary. See § 1421, infra.

56 Dickinson v. Perry, 75 Okla. 25, 181 Pac. 504.

passed by Congress,57 or by any state, 58 and in the state constitutions there are similar limitations on the power of the legislature.59

An "ex post facto law," within the meaning of this prohibition, is "one which, in its operation, makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, in short, which, in relation to the offense or its consequences, alters the situation of a party, to his disadvantage." 60 It has also been defined to be any law "which makes an act done before the passage of the law, and which was innocent when done criminal," or "which aggravates a crime, and makes it greater than it was when committed," or "which changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed," or "which alters the legal rules of evidence"; 61 a law

which renders "an act punishable in a manner in which it was not punishable when it was committed"; 62 any law enacted after the commission of the offense which, in relation to it or its consequences, in any way alters the situation of the accused to his disadvantage; 63

and numerous other similar definitions are to be found in the textbooks and reports.64

Ex post facto laws are to be distinguished from retrospective laws. Every ex post facto law is necessarily retrospective, but every retrospective law is not necessarily an ex post facto law within the meaning of the constitution, and it is only to ex post facto laws that the constitutional provision applies.65 In a sense, all acts passed after an offense is committed are ex post facto in relation to that offense, but the words are not used in so broad a sense in the constitution.66

A statute may be within the constitutional inhibition though it does not in terms define a crime or prescribe a punishment if it produces that result,67 nor can the ex post facto effect of a law be evaded by giving a civil form to that which is essentially criminal.68 Nor is it

64 See the following cases: United States. Gut v. State, 9 Wall. 37, 19 L. Ed. 573, aff 'g 13 Minn. 341; Hallock v. United States, 185 Fed. 417, certiorari denied 220 U. S. 613, 55 L. Ed. 610, 31 Sup. Ct. 717. Alabama. State v. Teasley, 194 Ala. 574, 69 So. 723, Ann. Cas. 1918 E 347.

Watkins, 2

Idaho. Wooley V.
Idaho 590, 22 Pac. 102.
Louisiana. State v. Isabel, 40 La.
Ann. 340, 4 So. 1.

Massachusetts. Jacquins v. Com., 9
Cush. 279.

Minnesota. State v. Johnson, 12 Minn. 476, 93 Am. Dec. 241.

Pennsylvania. Com. v. Duffy, 96 Pa. St. 506, 42 Am. Rep. 554.

Wisconsin. Bittenhaus v. Johnston, 92 Wis. 588, 66 N. W. 805, 32 L. R. A. 380.

W. 260, 108

65 United States. Kentucky Union Co. v. Com., 219 U. S. 140, 53 L. Ed. 137, 31 Sup. Ct. 171, aff'g 127 Ky. 667, 106 S. S. W. 1138, 128 Ky. 610, 110 S. W. 398; League v. State of Texas, 184 U. S. 156, 46 L. Ed. 478, 22 Sup. Ct. 475, aff'g 93 Tex. 553, 57 S. W. 34; Locke v. New Orleans, 4 Wall. 172, 18 L. Ed. 334; Satterlee v. Matthewson, 2 Pet. 380, 7 L. Ed. 458; Calder

v. Bull, 3 Dall. 386, 1 L. Ed. 648.

Alabama. Leahart v. Deedmeyer, 158 Ala. 295, 48 So. 371.

California. Foster V. Board of Police Com'rs, 102 Cal. 483, 37 Pac. 763, 41 Am. St. Rep. 194.

Illinois. Coles v. County of Madison, Breese, 154.

Indiana. Blake's Case, 1 Black f. (2nd Ed.) 483; Strong v. State, 1 Blackf. 193.

Kansas. State v. Tyree, 70 Kan. 203, 78 Pac. 525, 3 Ann. Cas. 1020. Kentucky. Eckles v. Wood, 143 Ky. 451, 136 S. W. 907, 34 L. R. A. (N. S.) 832. Missouri. State v. Kyle, 166 Mo. 287, 65 S. W. 763, 56 L. R. A. 115. Pennsylvania. Com. v. Kalek, 239 Pa. 533, 87 Atl. 61; Com. v. Duffy, 96 Pa. St. 506, 42 Am. Rep. 554.

South Carolina. City Council of Anderson v. O'Donnell, 29 S. C. 355, 7 S. E. 523, 1 L. R. A. 632, 13 Am. St. Rep. 728.

66Literally, it means any law which relates to, and operates upon, a fact which existed prior to its enactment." Strong v. State, 1 Black f. (Ind.) 193.

67 Cummings v. Missouri, 4 Wall. (U. S.) 277, 18 L. Ed. 356. 68 As a retrospective statute for

necessary that the law be detrimental to all persons charged with the offense or offenses to which it relates, but it is sufficient if it materially alters their condition in a manner which may be substantially detrimental to some of them.69

The limitation on the power of the states reaches every form in which their legislative power may be exerted, whether it be a constitution, a constitutional amendment, an enactment of the legislature, a by-law or ordinance of a municipal corporation, or a regulation or order of some other instrumentality of the state exercising delegated legislative authority.70 It is, however, directed against legislative action only, and does not reach erroneous or inconsistent decisions by the courts.71

Holding a statute to be ex post facto as to a person committing a crime before its enactment does not affect its validity generally. It may nevertheless operate to repeal a prior act, and hence a person may at the same time assert that a prior act was repealed by a subsequent one and that the latter is ex post facto as to him.72

the collection of penalties for failure
to pay
increased federal tobacco
taxes, Burgess v. Salmon, 97 U. S.
381, 24 L. Ed. 1104; or a statute im-
posing a penalty for failure to ring
the bell or blow the whistle of a
locomotive at crossings, although pro-
vision is made for collecting the same
in a civil action, Wilson v. Ohio &
M. Ry. Co., 64 Ill. 542, 16 Am. Rep.
565.

And to disbar an attorney in a civil suit for acts for which, when committed, he could have been disbarred only after trial and conviction in a criminal court, is to impose a punishment to which he was not liable when the acts were committed, and hence a statute authorizing it violates the constitutional inhibition. State v. Fourchy, 106 La. 743, 31 So. 325.

69 In re Murphy, 87 Fed. 549.

70 Ross v. State of Oregon, 227 U. S. 150, 57 L. Ed. 458, 33 Sup. Ct. 220, Ann. Cas. 1914 C 224; Thompson v. Utah, 170 U. S. 343, 42 L. Ed. 1061, 18 Sup. Ct. 620; Kring v. Missouri,

107 U. S. 221, 27 L. Ed. 506, 2 Sup. Ct. 443; State v. Ardoin, 51 La. Ann. 169, 24 So. 802, 72 Am. St. Rep. 454; Murray v. State, 1 Tex. App. 417.

71 State v. Heffernan, 40 R. I. 121, 100 Atl. 55.

A change in the decisions of a state court does not violate the prohibition. State v. O'Neil, 147 Iowa 513, 126 N. W. 454, 33 L. R. A. (N. S.) 788, Ann. Cas. 1912 B 691.

A holding that the failure of the accused to raise an objection upon his motion for a new trial amounted to a waiver of it is not within the constitutional inhibition although it is inconsistent with the practice as established by earlier decisions. Frank v. Mangum, 237 U. S. 309, 59 L. Ed. 969, 35 Sup. Ct. 582.

A decision construing a pre-existing statute to the disadvantage of the defendant is not an ex post facto law within the meaning of this provision. Ross v. State of Oregon, 227 U. S. 150, 57 L. Ed. 458, 33 Sup. Ct. 220, Ann. Cas. 1914 C 224.

72 State v. Smith, 56 Ore. 21, 107