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when it is made; they are necessarily refer. into a contract valid at the time by the laws red to in all contracts, and form a part of of the State, it is not competent for the legthem, as the measure of the obligation to islature or courts of the State to impair the perform them by the one party, and the right obligation of that contract. And statutes acquired by the other.? Contracts between wbich change the rules relating to the disany parties capable of binding themselves are charge of contracts, the medium of payment, witbin this provision of the constitution, as or the measure of damages, are unconstitubetween two individuals,* between corpora | tional if applied to contracts made prior to tions or a corporation and an individual, their passage.13 In other words, no act of between two States, between a State and an | the legislature can alter the nature and legal iudividual or a corporation. This provision effect of an existing contract to the prejudice applies to implied as well as express con of either party.14 But there is nothing in the tracts. The constitution makes no distinc constitution wbich forbids congress from tion between the one class of contracts and passing laws which impair the obligation of the other.8 But this provision bas no appli contracts. 15 The determination of the excation to a law in respect to contracts made istence or non-existence of the contract set after its passage. It is only those in exist up, as well as the question of its impairment ence when the bostile law is passed that are by State statute, is within the paramount protected from its effect. The invalidity of authority of the Supreme Court of the United the State law, as impairing the obligation of States, when reviewing the final judgment of contracts, does not depend upon the extent a State court respecting an enactment alleged of the change which the law effects in the to violate the contract clause of the constitucontract. Any deviation from the terms of tion. 16 The rule that the federal courts will the contract, by postponing or accelerating not accept as conclusive the construction its performance, imposing conditions not ex which a State court has put upon the constipressed in the contract, or dispensing with tution and its laws in determining the existthe performance of those expressed, howeverence of a contract or its violation, when conminute or apparently immaterial in their effect sidering whether a State law impairs the obupon the contract, impairs its obligation.30 ligation of a contract, has no application It is immaterial whether the law impairing where a prior judgment of the State court in the obligation of the contract is an ordinary a suit between the same parties is pleaded in act of legislation or is embodied in the organic a suit in the federal court as res judicata belaw of the State, it being well settled in re tween the parties. 17 ference to this clause of the constitution that 2. The Parties and the Contract.- This a State constitution is a law within the mean- provision of the constitution has never been ing thereof." When parties have entered understood to embrace other contracts than principle to justify interpretation in distin: | those that shall come after it.24 And this guisbing classes with regard thereto. In the provision extends to contracts between two statute of frauds and other like statutes, the States.25 There is no difference in reason or word "contract” is employed to denote an in law, to distinguish between contracts made undertaking voluntarily entered into between by a State with individuals, and contracts the parties, not drawing into contemplation made between States, as each ought to be any creation of the law. It may be said that equally inviolable.26 When a State becomes tbis is because only actual contracts are a party to a contract the same rules of law within the dangers which those statutes were are applicable to her as to individuals under enacted to avoid, and it would do violence to similar circumstances.27 So long as there is the legislative purpose and work a partial de no national bankrupt law, each State bas full feat of the law itself, to extend them to cre authority to pass insolvent laws binding perated contracts. But there is no ground of sons and property within its jurisdiction, reason for making a like distinction under provided they do not impair the obligations the constitutional provision now under dis of existing contracts.28 Such laws are void, cussion, so that, in just principle on a ques as impairing the obligation of contracts, when tion little illumined by decisions, though con they assume to discharge a debtor from the stitutions are interpreted like statutes, this obligations which he had entered into before provision should be held to protect as well their passage, 29 but are valid as to contracts the bargains wbich the law makes for men as made after their passage, because, being made those which they make for themselves.19 The after the law, the parties are presumed to have contracts of the United States with its citi had reference to the law, and impliedly zens, if made in accordance with law and to have made it part of their contract. 50 without fraud, are no more subject to recis But such insolvent laws have no operation sion by the government than ordinary en whatsoever on contracts made with the gagements between man and man without United States, for such contracts are in no the consent of both parties, the United manner subject to State jurisdiction.si States being as much bound by their con Wherever there is a contract, express or imtracts as individuals.20 In other words, when plied, for the payment of legal interest, the the government enters into a contract it lays obligation of the contract extends as well to down its constitutional authority, and has the payment of interest as it does to the payonly the same rights and is subject to the ment of the principal, and a law cbanging same obligations as an individual. 21 And the the legal rate of interest cannot affect conUnited States cannot legislate back to them tracts entered into prior to its passage, alselves, without making compensation, the though they may become due and payable lands they have given to railroad corpora after the passage of the law.32 To attempt tions to aid in the construction of railroads.22 to restrict the holder of the obligation to The probibition of the constitution applies anything below the rate of interest agreed to contracts of the State, and to those of its | upon is to release the obligor from & mateagents acting under its authority, as well as į rial part of his obligation. And a law into contracts of individuals.23 And a State creasing the rate of interest is equally objec. can no more impair, by legislation, the obligation of its own contracts, than it can im

those which respect property or some object 2 McCracken v. Hayward, 2 How. (U. S.) 608; Curran v. State of Arkansas, 15 How. (U. S.) 304.

of value, and confer rights which may be as3 Green v. Biddle, 8 Wheat. 1.

serted in a court of justice. It is believed Hills v. Carlton, 74 Me. 156; Holt v. Patterson, 74 | that the word "contracts,” in this provision, N. C. 650. Gilfillan v. Union Canal, 109 U. S. 401; Louisiana

is employed in its broadest sense, for examv. St. Martin's Parish, 111 U. S. 716; Hovelman y. ple, as including even statutes and judgKansas City Horse Railroad, 79 Mo. 632.

ments. 18 And the reason is, that there is no 6 Green v. Biddle, 8 Wheat. 1; Spooner v. McCon. nell, 1 McLean, 337.

7 Fletcher v. Peck, 6 Cranch. 87; Terrett v. Taylor, 12 Robinson v. Megee, 9 Cal. 81; Chicago v. Sheldon, 9 Cranch. 43; Pawlet v. Clark, 9 Cranch. 292; Hart v. 9 Wall. (U. S.) 50. Lamphire, 3 Pet. 280.

18 Dundas v. Bowler, 3 McLean, 397; Abercrombie 8 Story on the Const. § 1377.

v. Baxter, 44 Ga. 36. 9 Lebigh Water Co. v. Easton, 121 U. S. 388; Denny 14 King v. Dedbam Bank, 15 Mass. 447. v. Bennett, 128 U. S. 489; Powell v. Madison, 107 Ind. 15 Evans v. Eaton, 1 Pet. (U. S.) 322; Metropolita 106; People's Sav. Bank v. Tripp, 13 R. I. 621.

Bank v. Van Dyck, 27 N. Y. 400; Mitchell v. Clar 10 Green v. Biddle, 8 Wheat. (U. S.) 1.

110 U. S. 663. 11 White v. Hart, 13 Wall. (U. S.) 646; Railroad Co. 16 Douglas v. Kentucky, 168 U. S. 488; Citizens' v. MeClure, 10 Wall. (U. S.) 511; Gunn v. Barry, 15 Bank v. Owensboro, 173 U. S. 636. Wall. (U. S.; 610; Dodge v. Woolsey, 18 How. (U. S.) 17 Bank of Kentucky v. Stone, 88 Fed. Rep. 38 331; Williams v Bruffy, 96 U. 8. 176; Lebigh Valley 18 Gunn v. Barry, 16 Wall. 610; Moser v. Wb R. Co. v. McFarlan, 31 N. J. Eq. 706.

| Mich. 59; O'Brien v. Young, 96 N. Y. 428.

24 Woo Iruff v. Trapnell, 10 How. (U. S.) 190.

25 Green v. Biddle, 8 Wheat. (U. S.) 1. pair the obligation of the contracts of indi

26 See Story on the Const. § 1390. viduals. On general questions of policy, 27 Davis v. Gray, 16 Wall. (U. S.) 203. one legislature cannot bind those which shall

28 Brown v. Smart, 145 U. S. 454.

29 Sturges v. Crowninsbield, 4 Wheat. 122. succeed it, but it is equally true that a legis

30 Ogden v. Saunders, 12 Wheat. 213. See, Pratt v. lature may make a contract which shall bind Chase, 44 N. Y. 597; Blanchard v. Russell, 13 Mass. 1;

Hemstead v. Reed, 6 Conn. 480. 19 See Story on the Const. § 1377.

31 See Story on the Const. $ 1390. 20 Fowler y. United States, 3 Ct. Cl. 43; United 33 Roberts y. Cocke, 28 Gratt. (Va.) 207; Cecil v. States v. Bostwick, 94 U, S. 53.

Deyerle, 28 Gratt. (Va.) 775; Myrick v. Battle, 5 Fla. 21 Southern Pac. R. Co. v. U, S., 28 Ct. Cl. 77.

345; Conn. Mut. Life'Ins. Co. v. Cushman, 108 U. S. 22 Union Pac. R. Co. v. United States, 99 U. S. 700; 51. Central Pac. R. Co. v. Gallatin, 99 U. S. 700.

33 Hubbard v. Callahan, 42 Conn. 624; Simpson v 28 Wolff v. New Orleans, 103 U. S. 358.

| Hall, 47 Conn. 417; Newton v. Wilson, 31 Ark. 484.

tionable as imposing new burdens upon the this proposition can be those only under obligor 34 All authorities recognize the im which the contract came into existence; and plied obligation of every judgment debtor to neither prior nor subsequent laws of anotber pay the judgment, and for the purpose of State, where the enforcement of the contract actions upon them judgments are treated as may be sought, can be effectual, whatever contracts.35 In other words, a judgment is their terms, to impair an obligation which an obligation of record, and interest thereon the law of the contract, at the time of its is given as damages for delay in performing making, imposed. The method of procedure the obligation.36

for the enforcement of an obligation forms When a law is in the nature of a contract, no part of the obligation itself. Conseand when absolute rights have vested under quently it has become the well settled doctba' contract, a repeal of the law cannot di- | trine that the legislative power may, at pleasvest those rights.37 Rights acquired by deed, ure, change the remedy by the enactment will, or marriage, or other contract executed of any laws which do not impair the right. 43 according to statutes subsequently repealed, | The Supreme Court of the United States has subsist afterwards as they were before, in all declared the rule to be that, “in modes of respects as if the statutes were still in force.38 proceeding and forms to enforce the contract And rights under an antenuptial contract the legislature' has the control, and may enwbich become vested by the marriage, can large, limit, or alter them, provided it does not be impaired by subsequent legislation. 39 not deny a remedy or so embarrass it with But the right of dower to which a married conditions or restrictions as seriously to im · woman is entitled in her husband's real es. pair the value of the right."?44 A contract tate before his death, is not a vested right, and may be virtually impaired by a law wbich, may be changed at any time hefore the death without acting directly upon its terms, deof ibe husband.40

stroys the remedy, or so embarrasses it that 3. Subsequent Laws Impairing or Not the the rights of the creditor, under the legal Obligation.-Viewing a contract as consist remedies existing when the contract was iog, both of the words of tbe parties and made, are substantially defeated.45 If the mingled therewith, of all relevant provisions legislature see fit to change the law as to tbe of the law under wbich it was made, if now manner of pleading either at law or in equity we find any obligation which the mingled or in any summary or analogous proceeding, contract imposes on either party attempted and the law takes effect before the defense is to be augmented, diminished, or otberwise made, the party must conform to the new changed by a later statute to the detriment rule, and he cannot complain of having been of either, the enactment will be ineffectual deprived of a vested right. 46 The right of a for that purpose. 41 For a law to be ob creditor to any particular remedy is not a noxious to this provision of the constitution vested right in the continuance of any speit must be made subsequently to the con cial mode of procedure, or the perpetuation tract; since the prior laws are interpreted of any remedy or remedial process which into tbe contract, and thereby rendered parts can be modified or abolished without impairthereof.42 But the prior laws covered by ing or taking away the right itself.47 A parremedy for the enforcement of that obliga the complaint was drawn provides, by section 1, tion remains, or is substituted for tbe one

ticular remedy existing at the time of the ex34 Goggans v. Turnipseed, 1 S. C. (N. S.) 80.

ecution of a contract may be abrogated alto. 35 Johnson v. Butler, 2 Iowa, 535; Gutta Percba,

gether without impairing the obligation of etc., Co. v. Mayor, etc., of Houston, 108 N. Y. 276. 3 O'Brien v. Young, 95 N. Y. 428.

the contract if another and equally adequate 37 Fletcber v. Peck, 6 Cranch. (U. S.) 87; Clark v. Clark, 10 N. H. 380; State v. Auditor, 33 Mo. 287.

48 Richardson v. Cook, 37 Vt. 599. 35 McAfee v. Covington, 71 Ga, 272; State v. Mayor, 41 Penniman's Case, 103 U. S. 714. See, Curtis v. 32 La. Ann. 709; Osborn v. Nicholson, 13 Wall. 654; Whitney, 13 Wall, 68; Woodruff v. Scruggs, 27 Ark. Florentine v. Barton, 2 Wall. 210; Charles River 26; McCreary v. State, 27 Ark. 425; Holland v. DickBridge y. Warren Bridge, 11 Pet. 420.

erson, 41 Iowa, 367. 39 Desnoyer v. Jordan, 27 Mipn. 295.

45 Edwards v. Kearzey, 96 U. S. 595; Patton v. 40 McNeer v. McNeer, 142 III. 388. See, Noel v. Ew. Asbeville, 19 N. Car. 685; Walker v. Wbitehead, 16 ing, 9 Ind.37.

Wall. 314; Davis v. Rupe, 114 Ind. 583. 41 Green v. Biddle, 8 Wheat. 1; Bronson v. Kinzie, 46 Lockett v. Usry, 28 Ga. 345. 1 How. 311; Winter v. Jones, 10 Ga. 190.

47 Bird v. Keller, 77 Me. 270; Ctaffee v. Aaron, 62 42 Railroad v. McClure, 10 Wall. 511.

| Miss. 29; Ricb v. Flanders, 39 N. H. 304.

that it shall be unlawful, and it is declared a

nuisance and misdemeanor, for any person or taken away.48 In altering a remedy a State

persons, at any time after the 1st day of April, cannot, by law, impair its efficiency in tbe

1895, to dig, or cause to be dug or opened, any least degree, because the right to impair

grave, or to enter or deposit, or cause to be demeans a license to destroy. If the substi- | posited, in such grave, any dead body, within tuted remedy as compared with that existing

the city of Portland, except within certain spec

ified districts; and, by section 2, that no person when the contract was made, has a tendency

or persons shall, after the day named, dig, or to diminish the value of the debt in the least

cause to be dug or opened, any grave, or cause degree, it is unconstitutional.49 But the to be deposited or interred in such grave any legislature may give a more efficient remedy dead body, except in those portions of the city for the enforcement of the obligation of a

designated in section 1. Section 6 prescribes a

penalty for a violation of the ordinance. The contract after breach, and such legislation is

charter empowers the city to prevent the intronot repugnant to the constitution. 50

duction of contagious diseases, etc., and “to proChas. W. McKINNEY. vide for the bealth, cleanliness, ornament, peace, Evansville, Ind.

and good order of the city," and, by a subse

quent clause, to prevent and remove nuisances, 48 Conn., etc. Ins. Co. v. Cushman, 108 U. S. 51; and to declare what shall constitute the same." McGabey v. Virginia, 135 U. S. 693; New Orleans, etc. Section 32, subds. 6, 9. The plaintiff, being imCo. v. State, 157 U. S. 219.

prisoned, sued out a writ of habeas corpus, alleg49 Long v. Walker, 105 N. Car. 90.

ing that he is unlawfully restrained of his lib50 Webb v. Moore, 25 Ind. 4; Newark Say. Inst. v.

erty by the defendant, to which the latter made Forman, 32 N. J. Eq. 436; Tennessee v. Sneed, 96 U.

return that he is lawfully detaining the plaintiff S. 69.

under and by virtue of the commitment to him

issued and directed. The judgment being favorPOLICE POWER-BURIAL IN CITY LIMITS.

able to the plaintiff, the defendant appeals.

WOLVERTON, J. (after stating the facts): The WYGANT v. McLAUCHLAN.

plaintiff bases his argument in support of the

judgment of the circuit court upon the ground Supreme Court of Oregon, May 4, 1901.

that Ordinance 9,188 is invalid, for the reason 1. Under a charter authorizing a city to protect the that the charter does not authorize the city of health of the city and remove nuisances, and declare Portand to declare the burial of the dead within what shall constitute the same, the city council was | the city limits, outside of the excepted districts, not authorized to declare generally tbat the burial of

to he a nuisance, or to punish persons for doing a dead body in any portion of the city would consti:

the acts thereby declared to be offenses against tute a puisance, when such interment might be made

the city. It may be premised that a cemetery is in certain sections thereof without giving offense to any human sense or endangering the health of the

not a nuisance, except conditions be present community.

which corrupt or foul the atmosphere by un2. Under a city charter authorizing a city to pro.

wholesome or poxious stenches, or impregnate vide for the health, cleanliness, peace, and good order the water of wells or springs in the vicinity by of the city, and to prevent and remove nuisances, an percolation through the soil, thereby endangerordinance prohibiting burials in certain territory of ing the public health; hence the authorities the city, distant more than balf a mile from any in. agree that it is not nor can it be regarded a puihabitants or public thoroughfare, being unreason.

sance per se. Wood, Nuis. $ 6; 1 Dill. Mun. able, as applied to sparsely.inbabited portions of the

Corp. (4th Ed.) 373; 5 Am. & Eng. Enc. Law city, and general in its operation, is invalid as to the

(2d Ed.), 791; Kingsbury v. Flowers, 65 Ala. 479; whole, and falls in its entirety.

Henry v. Trustees, 48 Ohio St. 674, 30 N. E. Rep. The plaintiff was convicted in the municipal | 1122; Town of Lake View v. Rose Hill Cemetery cour: of the city of Portland of a violation of City Co., 70 III. 191. And wbetber the act of depositOrdinance No. 9,188, and sentenced to pay a fine ing a dead body in its place of sepulture is the of $35, in default of the payment of which he was commission of a nuisance depends entirely upon committed to jail under a commitment issued, its proximity to the babitations of the living and directed, and delivered to the defendant, Mc the manner in which it is accomplished. In so Lauchlap, who is the chief of police. The com far as the language of the charter conferring plaint upon which the conviction was bad power upon the city to declare what sball concharged the plaintiff with a violation of the ordi stitute a nuisance is involved by the contention, nance by willfully and unlawfully interring and the case of Grossman v. City of Oakland, 30 Oreg. causing to be deposited a certain dead body | 478, 41 Pac. Rep. 5, 36 L. R. A. 593, is precisely within prohibited territory in the city of Port in point. Within the scope of the doctrine there land, thereby creating a nuisance," contrary to announced and settled, the city is not thereby the ordinance, etc. The ordinance under which l authorized to declare that to be a nuisance which

is neither such per se nor under the common law, whether or not an ordinance is reasonable. 17 nor made so by statutory enactment. It would Am. & Eng. Enc. Law, 248. The prevailing preseem to follow, therefore, that the city council sumption, however, is in favor of its reasonablewas not authorized to declare generally that to ness, which must be overcome by legal and comdeposit a dead body in any portion on the in petent proof to the contrary before its invalidity hibited district shall constitute a puisance, when can be declared. Trenton Horse R. Co. v. Init is conceded, as here, that such an interment habitants of City of Trenton, supra; Com. v. may be made in the usual way in some sections Patch, 97 Mass. 221; Van Hook v. City of Selma, thereof, without giving offense to the senses of 70 Ala. 361. any human inhabitant, or endangering in the We are thus brought to the question whether least measure the health of the community.

the ordinance involved evinces a reasonable exDefendant's counsel insist, however, tbat the ercise of the general police power vested in the authority requisite for excluding burials from city, or of such as is attendant upon the power . within the city limits may be referable to the

accorded to provide for the health, cleanliness, general police power incident to all municipal

and good order thereof. The court may take corporations, and, beyond this, it is urged that judicial knowledge of the acts of incorporations the words of the charter, to provide for the

and charters of municipal corporations, and as a health, cleanliness, ornament, peace, and good

logical consequence of the territorial limits of order of the city,” are commensurate for the pur

such municipalities, especially where they are pose. The power thus conferred is no doubt fixed and defined by the acts giving them life, or ample to authorize the city to adopt reasonable acts amendatory thereof. 17 Am. & Eng. Enc. measures prescribing rules and regulations, as it Law (2d Ed.), 936, 938; Fauntleroy v. Hannibal, respects the place and manner of burials within

1 Dill. 118, Fed. Cas. No. 4,691; Binkert v. Janthe city limits; but the city cannot arbitrarily

sen, 94 111. 283; Hornberger v. State, 47 Neb. 40, probibit them, unless such probibition be a rea

66 N. W. Rep. 23; De Baker v. Railway Co., 106 sonable exercise of the power. The legislature, Cal. 257, 39 Pac. Rep. 610; City of Kansas City v. in its wisdom, may, by express delegation of au. Smart, 128 Mo. 272, 30 S. W. Rep. 773. thority, empower the city to adopt measures of Now, it is an admitted fact that there are cona specified and defined character, and the exer siderable tracts of land, comprised within the cise of such autbority cannot be questioned on limits of tbe city, which are sparsely inhabited. the ground of its unreasonableness. People v. As was said by the court below, there are within Pratt, 129 N. Y. 68, 29 N. E. Rep. 7; Cropin v. the corporate limits of the city of Portland several People, 82 N. Y. 318; Coates v. Mayor, etc., 7 large tracts of lands, which are used solely for Cow. 585.-are illustrative of the principle. In farming purposes, some of them containing the first, the authority delegated was to make, several hundred acres, and on some of them inmodify, and repeal ordinances and by-laws to terments could be made which would be distant regulate the burial of the dead ;'' and it was held a half mile or more from any human inhabitant that the power to regulate was tantamount to the or public thorougbfare." Under these condipower to probibit, the court referring to Cropin tions, it is assuredly not a reasonable regulation, v. People, which involved the authority to pro | as a police provision, or for the conservation of bibit the operation of slaughter houses in certain the health or good order of the community, to portions of the city of Albany as conclusive of the | exclude burials from the whole territory, save point. So, in the last case cited, tbe authority the districts enumerated by the ordinance. If, extended to making by-laws "for regulating * however, as before indicated, the legislature bad * * or preventing the interment of the dead” granted special and express power to exclude within the city, wbich language is so express and burials from within the city limits, the adoption explicit as to leave no doubt toucbing the power of such an ordinance would be a legitimate exerto probibit. But where the authority to adopt cise thereof, and no one could question its specific measures is referable merely to the gen validity; yet, when the nature of the power deleeral power, or where tbe authority to legislate gated enjoins upon the city the duty of adopting with respect to a given subject is conferred and such measures only as are reasonable, that bethe mode of its exercise is not prescribed, there comes the measure and limit of the power, and goes with it the condition tbat the exercise any act in excess thereof is without legal efficacy. thereof, to be valid and efficacious, must be rea- | The ordinance being unreasonable as applied to sonable and not oppressive. i Dill. Mup. Corp. those sparsely inbabited portions of the city, and (4th Ed.) $ 328; Trenton Horse R. Co. v. In hab. general in its territorial scope and operation, it is itants of City of Trenton (N. J. Sup.), 20 Atl. invalid as to tbe whole, and must fall in its enRep. 1076; Haynes v. Cape May. 50 N.J. Law, tirety. As sustaining the conclusions here 55, 13 Atl. Rep. 231; Coal Float v. City of Jeffer reached, see Austin v. Murray, 16 Pick. 121; sonville, 112 Ind. 35. 13 N. E. Rep. 115; Mayor, Kneedler v. Borough of Norristown, 100 Pa. 368; etc. v. Radecke, 49 Md. 217; Tugman v. City of Town of Lake View v. Rose Hill Cemetery Co., Chicago, 78 III. 405; Kirkham v. Russell, 76 Va. | supra; Mayor, etc. v. Radecke, supra. This state956. It is for the court to determine, in view of ment of the law is not impinged upon by tbe docthe facts of each particular case as it arises, trine maintained in Pennsylvania R. Co. v. Mayor,

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