gone, and to restore it would be to create a new contract for the parties, a thing quite beyond the power of legislation. So he who was never bound, either legally or equitably, cannot have a demand created against him by mere legislative enactment.1 But there are many cases in which, by existing laws, defences based upon mere informalities are allowed in suits upon contracts, or in respect to legal proceedings, in some of which a regard to substantial justice would warrant the legislature in interfering to take away the defence if it possesses the power to do so.

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In regard to these cases, we think investigation of the authorities will show that a party has no vested right in a defence based upon an informality not affecting his substantial equities. And this brings us to a particular examination of a class of statutes which is constantly coming under the consideration of the courts, and which are known as retrospective laws, by reason of their reaching back to and giving some different legal effect to some previous transaction to that which it had under the law when it took place.

There are numerous cases which hold that retrospective laws are not obnoxious to constitutional objection, while in others they have been held to be void. The different decisions have been based upon diversities in the facts which make different principles applicable. There is no doubt of the right of the legislature to pass. statutes which reach back to and change or modify the effect of prior transactions, provided retrospective laws are not forbidden, eo nomine by the State constitution, and provided further that no other objection exists to them than their retrospective character.2 Nevertheless legislation of this character is exceedingly liable to abuse; and it is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively.

And

In Medford v. Learned, 16 Mass. 215, it was held that where a pauper had received support from the parish, to which by law he was entitled, a subsequent legislative act could not make him liable by suit to refund the cost of the support. This case was approved and followed in People v. Supervisors of Columbia, 43 N. Y. 135. See ante, p. 362, and note.

2 Thornton v. McGrath, 1 Duvall, 349; State v. Squires, 26 Iowa, 340; Beach v. Walker, 6 Conn. 197; Schenley v. Commonwealth, 36 Penn. St. 57.

3 Dash v. Vankleek, 7 Johns. 477; Norris v. Beyea, 13 N. Y. 273; Plumb v. Sawyer, 21 Conn. 351; Whitman v. Hapgood, 13 Mass. 464; Medford v. Learned, 16 Mass. 215; Ray v. Gage, 36 Barb. 447; Watkins v. Haight, 18 Johns. 138;

some of the States have deemed it just and wise to forbid such laws altogether by their constitutions.1

A retrospective statute curing defects in legal pro- [* 371] ceedings where they are in their nature irregularities only,

and do not extend to matters of jurisdiction, is not void on constitutional grounds, unless expressly forbidden. Of this class are the statutes to cure irregularities in the assessment of property for taxation and the levy of taxes thereon; 2 irregularities in the

Garrett v. Beaumont, 24 Miss. 377; Briggs v. Hubbard, 19 Vt. 86; Perkins v. Perkins, 7 Conn. 558; Hastings v. Lane, 3 Shep. 134; Guard v. Rowan, 2 Scam. 499; Sayre v. Wisner, 8 Wend. 661; Quackenbos v. Danks, 1 Denio, 128; Garrett v. Doe, 1 Scam. 335; Thompson v. Alexander, 11 Ill. 54; State v. Barbee, 3 Ind. 258; Allbyer v. State, 10 Ohio, N. s. 588; State v. Atwood, 11 Wis. 422; Bartruff v. Remey, 15 Iowa, 257; Tyson v. School Directors, 51 Penn. St. 9; Colony v. Dublin, 32 N. H. 432; Torrey v. Corliss, 32 Me. 33; Atkinson v. Dunlop, 50 Me. 111; Ex parte Graham, 13 Rich. 277; Hubbard v. Brainerd, 35 Conn. 576; Conway v. Cable, 37 Ill. 82; Clark v. Baltimore, 29 Md. 277; Williams v. Johnson, 30 Md. 500; State v. The Auditor, 41 Mo. 25; Merwin v. Bullard, 66 N. C. 398; Haley v. Philadelphia, 68 Penn. St. 137; s. c. 8 Am. Rep. 153; Bennett v. Fisher, 26 Iowa, 497.

1 See the provision in the Constitution of New Hampshire, considered in Woart v. Winnick, 3 N. H. 481; Clark v. Clark, 10 N. H. 386; Willard v. Harvey, 24 N. H. 351; and Rich v. Flanders, 39 N. H. 304; and that in the Constitution of Texas, in De Cordova v. Galveston, 4 Texas, 470. The Constitution of Ohio provides that the General Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; provided, however, that the General Assembly may, by general laws, authorize the courts to carry into effect the manifest intention of parties and officers, by curing omissions, defects, and errors in instruments and proceedings, arising out of their want of conformity with the laws of this State, and upon such terms as shall be just and equitable." Under this clause it was held competent for the General Assembly to pass an act authorizing the courts to correct mistakes in deeds of married women previously executed, whereby they were rendered ineffectual. Goshorn v. Purcell, 11 Ohio, N. s. 641. Under a provision in the Constitution of Tennessee that no retrospective law shall be passed, it has been held that a law authorizing a bill to be filed by slaves, by their next friend, to emancipate them, although it applied to cases which arose before its passage, was not a retrospective law within the meaning of this clause. An act for the payment of bounties for State v. Richland, 20 Ohio, N. s. 369. 105; Officer v. Young, 5 Yerg. 320.

Fisher's Negroes v. Dobbs, 6 Yerg. 119. past services was held not retrospective in See further, Society v. Wheeler, 2 Gall.

That the legislature cannot retrospectively construe statutes and bind parties thereby, see ante p. 93 et seq.

* Butler v. Toledo, 5 Ohio, N. s. 225; Strauch v. Shoemaker, 1 W. & S. 175 ; McCoy v. Michew, 7 W. & S. 390; Montgomery v. Meredith, 17 Penn. St. 42;

organization or elections of corporations;1 irregularities in the votes or other action by municipal corporations, or the like, where a statutory power has failed of due and regular execution through the carelessness of officers, or other cause; 2 irregular proceedings in courts, &c.

The rule applicable to cases of this description is substantially the following: If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.

A few of the decided cases will illustrate this principle. In Kearney v. Taylor 3 a sale of real estate belonging to infant tenants in common had been made by order of court in a partition suit, and the land bid off by a company of persons, who proposed subdividing and selling it in parcels. The sale was confirmed in their names, but by mutual arrangement the deed was made to one only, for convenience in selling and conveying. This deed failed to convey the title, because not following the sale. The legislature afterwards passed an act providing that, on proof being made to the satisfaction of the court or jury before which such deed was

offered in evidence that the land was sold fairly and with[* 372] out fraud, * and the deed executed in good faith and for a sufficient consideration, and with the consent of the

Dunden v. Snodgrass, 18 Penn. St. 151; Williston v. Colkett, 9 Penn. St. 38; Boardman v. Beckwith, 18 Iowa, 292. And see Walter v. Bacon, 8 Mass. 472; Locke v. Dane, 9 Mass. 360; Patterson v. Philbrook, 9 Mass. 153; Trustees v. McCaughy, 2 Ohio, N. s. 152. The right to provide for a reassessment of taxes irregularly levied is undoubted. See Brevoot v. Detroit, 23 Mich. 322; State v. Newark, 34 N. J. 237; Musselman v. Logansport, 29 Ind. 533. But, of course, if the vice is in the nature of the tax itself, it will continue and be fatal, however often the process of assessment may be repeated. See post, 382.

1 Syracuse Bank v. Davis, 16 Barb. 188; Mitchell v. Deeds, 49 Ill. 416. See Menges v. Wertman, 1 Penn. St. 218; Yost's Report, 17 Penn. St. 524 ; Bennett v. Fisher, 26 Iowa, 497; Allen v. Archer, 49 Me. 346; Commonwealth v. Marshall, 69 Penn. St. 328; State v. Union, 4 Vroom, 250.

'.15 How. 494. And see Boyce v. Sinclair, 3 Bush, 261.

persons reported as purchasers, the deed should have the same effect as though it had been made to the purchasers. That this act was unobjectionable in principle was not denied; and it cannot be doubted that a prior statute, authorizing the deed to be made to one for the benefit of all and with their assent, would have been open to no valid objection.1

In certain Connecticut cases it was insisted that sales made of real estate on execution were void, because the officer had included in the amount due several small items of fees not allowed by law. It appeared, however, that, after the sales were made, the legislature had passed an act providing that no levy should be deemed void by reason of the officer having included greater fees than were by law allowable, but that all such levies, not in other respects defective, should be valid and effectual to transmit the title of the real estate levied upon. The liability of the officer for receiving more than his legal fees was at the same time left unaffected. In the leading case the court say: "The law, undoubtedly, is retrospective; but is it unjust? All the charges of the officer on the execution in question are perfectly reasonable, and for necessary services in the performance of his duty; of consequence they are eminently just; and so is the act confirming the levies. A law, although it be retrospective, if conformable to entire justice, this court has repeatedly decided is to be recognized and enforced." 2

In another Connecticut case it appeared that certain marriages had been celebrated by persons in the ministry who were not empowered to perform that ceremony by the State law, and that the marriages were therefore invalid. The legislature had afterwards passed an act declaring all such marriages valid, and the court sustained the act. It was assailed as an exercise of the

1 See Davis v. State Bank, 7 Ind. 316, and Lucas v. Tucker, 17 Ind. 41, for decisions under statutes curing irregular sales by guardians and executors. In many of the States general laws will be found providing that such sales shall not be defeated by certain specified defects and irregularities.

2 Beach v. Walker, 6 Conn. 197; Booth v. Booth, 7 Conn. 350. And see Mather v. Chapman, 6 Conn. 54; Norton v. Pettibone, 7 Conn. 319; Welch v. Wadsworth, 30 Conn. 149; Smith v. Merchand's Ex'rs, 7 S. & R. 260; Underwood v. Lilly, 10 S. & R. 97; Bleakney v. Bank of Greencastle, 17 S. & R. 64 ; Menges v. Wertman, 1 Penn. St. 218; Weister v. Hade, 52 Penn. St. 474; Ahl v. Gleim, 52 Penn. St. 432; Selsby v. Redlon, 19 Wis. 17; Parmelee v. Lawrence, 48 Ill. 331.

judicial power; but this it clearly was not, as it purported to settle no controversies, and merely sought to give effect to the desire of the parties, which they had ineffectually attempted to carry out by means of the ceremony which proved insufficient. And while it was not claimed that the act was void in so far as it made [* 373] effectual the legal relation * of matrimony between the parties, it was nevertheless insisted that rights of property dependent upon that relation could not be affected by it, inasmuch as, in order to give such rights, it must operate retrospectively. The court in disposing of the case are understood to express the opinion that, if the legislature possesses the power to validate an imperfect marriage, still more clearly does it have power to affect incidental rights. "The man and the woman were unmarried, notwithstanding the formal ceremony which passed between them, and free in point of law to live in celibacy, or contract marriage with any other persons at pleasure. It is a strong exercise of power to compel two persons to marry without their consent, and a palpable perversion of strict legal right. At the same time the retrospective law thus far directly operating on vested rights is admitted to be unquestionably valid, because manifestly just."1

It is not to be inferred from this language that the court understood the legislature to possess power to select individual members of the community, and force them into a relation of marriage with each other against their will. That complete control which the legislature is supposed to possess over the domestic relations can hardly extend so far. The legislature may perhaps divorce parties, with or without cause, according to its own view of justice or public policy; but for the legislature to marry parties against their consent, we conceive to be decidedly against "the law of the land." The learned court must be understood as speaking here with exclusive reference to the case at bar, in which the legislature, by the retrospective act, were merely removing a formal impediment to that marriage which the parties had assented to, and which they had attempted to form. Such an act, unless special circumstances conspired to make it otherwise, would certainly be "manifestly just," and therefore might well be held

1 Goshen v. Stonington, 4 Conn. 224, per Hosmer, J. The power to validate void marriages held not to exist in the legislature where, by the constitution, the whole subject was referred to the courts. White v. White, 105 Mass. 325.