applies to implied as well as express contracts. The constitution makes no distinction between the one class of contracts and the other.8 But this provision has no application to a law in respect to contracts made after its passage. It is only those in existence when the hostile law is passed that are protected from its effect. The invalidity of the State law, as impairing the obligation of contracts, does not depend upon the extent of the change which the law effects in the contract. Any deviation from the terms of the contract, by postponing or accelerating its performance, imposing conditions not expressed in the contract, or dispensing with the performance of those expressed, however minute or apparently immaterial in their effect upon the contract, impairs its obligation. 10 It is immaterial whether the law impairing the obligation of the contract is an ordinary act of legislation or is embodied in the organic law of the State, it being well settled in reference to this clause of the constitution that a State constitution is a law within the mean ing thereof." When parties have entered 2 McCracken v. Hayward, 2 How. (U. S.) 608; Curran v. State of Arkansas, 15 How. (U. S.) 304. 3 Green v. Biddle, 8 Wheat. 1. 4 Hills v. Carlton, 74 Me. 156; Holt v. Patterson, 74 N. C. 650. Gilfillan v. Union Canal, 109 U. S. 401; Louisiana V. St. Martin's Parish, 111 U. S. 716; Hovelman v. Kansas City Horse Railroad, 79 Mo. 632. Green v. Biddle, 8 Wheat. 1; Spooner v. McCon nell, 1 McLean, 337. Fletcher v. Peck, 6 Cranch. 87; Terrett v. Taylor, 9 Cranch. 43; Pawlet v. Clark, 9 Cranch. 292; Hart v. Lamphire, 3 Pet. 280. 8 Story on the Const. § 1377. 9 Lehigh Water Co. v. Easton, 121 U. S. 388; Denny into a contract valid at the time by the laws of the State, it is not competent for the legislature or courts of the State to impair the obligation of that contract. 12 And statutes which change the rules relating to the discharge of contracts, the medium of payment, or the measure of damages, are unconstitutional if applied to contracts made prior to their passage.' their passage.13 In other words, no act of the legislature can alter the nature and legal effect of an existing contract to the prejudice of either party.14 But there is nothing in the constitution which forbids congress from passing laws which impair the obligation of contracts.15 The determination of the existence or non-existence of the contract set up, as well as the question of its impairment by State statute, is within the paramount authority of the Supreme Court of the United States, when reviewing the final judgment of a State court respecting an enactment alleged to violate the contract clause of the constitution.16 The rule that the federal courts will not accept as conclusive the construction which a State court has put upon the constitution and its laws in determining the existence of a contract or its violation, when considering whether a State law impairs the obligation of a contract, has no application where a prior judgment of the State court in a suit between the same parties is pleaded in a suit in the federal court as res judicata between the parties.17 2. The Parties and the Contract. This provision of the constitution has never been understood to embrace other contracts than those which respect property or some object of value, and confer rights which may be asserted in a court of justice. It is believed that the word "eontracts," in this provision, is employed in its broadest sense, for example, as including even statutes and judgments.18 And the reason is, that there is no In the principle to justify interpretation in distinguishing classes with regard thereto. statute of frauds and other like statutes, the word "contract" is employed to denote an undertaking voluntarily entered into between the parties, not drawing into contemplation any creation of the law. It may be said that this is because only actual contracts are within the dangers which those statutes were enacted to avoid, and it would do violence to the legislative purpose and work a partial defeat of the law itself, to extend them to created contracts. But there is no ground of reason for making a like distinction under the constitutional provision now under discussion, so that, in just principle on a question little illumined by decisions, though constitutions are interpreted like statutes, this provision should be held to protect as well the bargains which the law makes for men as those which they make for themselves.19 The contracts of the United States with its citizens, if made in accordance with law and without fraud, are no more subject to recission by the government than ordinary engagements between man and man without the consent of both parties, the United States being as much bound by their contracts as individuals. 20 In other words, when the government enters into a contract it lays down its constitutional authority, and has only the same rights and is subject to the same obligations as an individual. And the United States cannot legislate back to themselves, without making compensation, the lands they have given to railroad corporations to aid in the construction of railroads.22 The prohibition of the constitution applies to contracts of the State, and to those of its agents acting under its authority, as well as to contracts of individuals.23 And a State can no more impair, by legislation, the obligation of its own contracts, than it can impair the obligation of the contracts of individuals. On general questions of policy, one legislature cannot bind those which shall succeed it, but it is equally true that a legislature may make a contract which shall bind 19 See Story on the Const. § 1377. 20 Fowler v. United States, 3 Ct. Cl. 43; United States v. Bostwick, 94 U. S. 53. 21 Southern Pac. R. Co. v. U. S., 28 Ct. Cl. 77. 28 those that shall come after it.24 And this provision extends to contracts between two States. 25 There is no difference in reason or in law, to distinguish between contracts made by a State with individuals, and contracts made between States, as each ought to be equally inviolable. 26 When a State becomes a party to a contract the same rules of law are applicable to her as to individuals under similar circumstances.27 So long as there is no national bankrupt law, each State has full authority to pass insolvent laws binding persons and property within its jurisdiction, provided they do not impair the obligations. of existing contracts.2 Such laws are void, as impairing the obligation of contracts, when they assume to discharge a debtor from the obligations which he had entered into before their passage, 29 but are valid as to contracts made after their passage, because, being made after the law, the parties are presumed to have had reference to the law, and impliedly to have made it part of their contract.50 But such insolvent laws have no operation whatsoever on contracts made with the United States, for such contracts are in no manner subject to State jurisdiction.31 Wherever there is a contract, express or implied, for the payment of legal interest, the obligation of the contract extends as well to the payment of interest as it does to the payment of the principal, and a law changing the legal rate of interest cannot affect contracts entered into prior to its passage, although they may become due and payable after the passage of the law.32 To attempt to restrict the holder of the obligation to anything below the rate of interest agreed upon is to release the obligor from a material part of his obligation.33 And a law increasing the rate of interest is equally objec 24 Woodruff v. Trapnell, 10 How. (U. S.) 190. 27 Davis v. Gray, 16 Wall. (U. S.) 203. 29 Sturges v. Crowninshield, 4 Wheat. 122. 30 Ogden v. Saunders, 12 Wheat. 213. See, Pratt v. Chase, 44 N. Y. 597; Blanchard v. Russell, 13 Mass. 1; Hemstead v. Reed, 6 Conn. 480. 31 See Story on the Const. § 1390. 32 Roberts v. Cocke, 28 Gratt. (Va.) 207; Cecil v. Deyerle, 28 Gratt. (Va.) 775; Myrick v. Battle, 5 Fla. 345; Conn. Mut. Life Ins. Co. v. Cushman, 108 U. S. tionable as imposing new burdens upon the obligor 4 All authorities recognize the implied obligation of every judgment debtor to pay the judgment, and for the purpose of actions upon them judgments are treated as contracts.35 In other words, a judgment is an obligation of record, and interest thereon is given as damages for delay in performing the obligation.36 When a law is in the nature of a contract, and when absolute rights have vested under that contract, a repeal of the law cannot divest those rights.37 Rights acquired by deed, will, or marriage, or other contract executed according to statutes subsequently repealed, subsist afterwards as they were before, in all respects as if the statutes were still in force.38 And rights under an antenuptial contract which become vested by the marriage, cannot be impaired by subsequent legislation.39 But the right of dower to which a married woman is entitled in her husband's real estate before his death, is not a vested right, and may be changed at any time before the death of the husband.40 3. Subsequent Laws Impairing or Not the Obligation.-Viewing a contract as consisting, both of the words of the parties and mingled therewith, of all relevant provisions of the law under which it was made, if now we find any obligation which the mingled contract imposes on either party attempted to be augmented, diminished, or otherwise changed by a later statute to the detriment of either, the enactment will be ineffectual for that purpose. For a law to be obnoxious to this provision of the constitution it must be made subsequently to the contract; since the prior laws are interpreted into the contract, and thereby rendered parts thereof.42 But the prior laws covered by 34 Goggans v. Turnipseed, 1 S. C. (N. S.) 80. Johnson v. Butler, 2 Iowa, 535; Gutta Percha, etc., Co. v. Mayor, etc., of Houston, 108 N. Y. 276. 36 O'Brien v. Young, 95 N. Y. 428. 37 Fletcher v. Peck, 6 Cranch. (U. S.) 87; Clark v. this proposition can be those only under which the contract came into existence; and neither prior nor subsequent laws of another State, where the enforcement of the contract may be sought, can be effectual, whatever their terms, to impair an obligation which the law of the contract, at the time of its making, imposed. The method of procedure for the enforcement of an obligation forms no part of the obligation itself. Consequently it has become the well settled doctrine that the legislative power may, at pleasure, change the remedy by the enactment of any laws which do not impair the right.43 The Supreme Court of the United States has declared the rule to be that, "in modes of proceeding and forms to enforce the contract the legislature has the control, and may enlarge, limit, or alter them, provided it does not deny a remedy or so embarrass it with conditions or restrictions as seriously to im· pair the value of the right." A contract may be virtually impaired by a law which, without acting directly upon its terms, destroys the remedy, or so embarrasses it that the rights of the creditor, under the legal remedies existing when the contract was made, are substantially defeated.45 If the legislature see fit to change the law as to the manner of pleading either at law or in equity or in any summary or analogous proceeding, and the law takes effect before the defense is made, the party must conform to the new rule, and he cannot complain of having been deprived of a vested right.46 The right of a creditor to any particular remedy is not a vested right in the continuance of any special mode of procedure, or the perpetuation of any remedy or remedial process which can be modified or abolished without impairing or taking away the right itself. 47 A particular remedy existing at the time of the execution of a contract may be abrogated altogether without impairing the obligation of the contract if another and equally adequate remedy for the enforcement of that obligation remains, or is substituted for the one taken away.48 In altering a remedy a State cannot, by law, impair its efficiency in the least degree, because the right to impair means a license to destroy. If the substituted remedy as compared with that existing when the contract was made, has a tendency to diminish the value of the debt in the least degree, it is unconstitutional. 49 But the legislature may give a more efficient remedy for the enforcement of the obligation of a contract after breach, and such legislation is not repugnant to the constitution.50 Evansville, Ind. CHAS. W. MCKINNEY. 48 Conn., etc. Ins. Co. v. Cushman, 108 U. S. 51; McGahey v. Virginia, 135 U. S. 693; New Orleans, etc. Co. v. State, 157 U. S. 219. 49 Long v. Walker, 105 N. Car. 90. 50 Webb v. Moore, 25 Ind. 4; Newark Sav. Inst. v. Forman, 32 N. J. Eq. 436; Tennessee v. Sneed, 96 U. S. 69. POLICE POWER-BURIAL IN CITY LIMITS. WYGANT v. MCLAUCHLAN. Supreme Court of Oregon, May 4, 1901. 1. Under a charter authorizing a city to protect the health of the city and remove nuisances, and declare what shall constitute the same, the city council was not authorized to declare generally that the burial of a dead body in any portion of the city would constitute a nuisance, when such interment might be made in certain sections thereof without giving offense to any human sense or endangering the health of the community. 2. Under a city charter authorizing a city to provide for the health, cleanliness, peace, and good order of the city, and to prevent and remove nuisances, an ordinance prohibiting burials in certain territory of the city, distant more than half a mile from any inhabitants or public thoroughfare, being unreasonable, as applied to sparsely inhabited portions of the city, and general in its operation, is invalid as to the whole, and falls in its entirety. The plaintiff was convicted in the municipal court of the city of Portland of a violation of City Ordinance No. 9,188, and sentenced to pay a fine of $35, in default of the payment of which he was committed to jail under a commitment issued, directed, and delivered to the defendant, McLauchlan, who is the chief of police. The complaint upon which the conviction was bad charged the plaintiff with a violation of the ordinance by willfully and unlawfully interring and causing to be deposited a certain dead body within prohibited territory in the city of Portland, "thereby creating a nuisance,” contrary to the ordinance, etc. The ordinance under which the complaint was drawn provides, by section 1, that it shall be unlawful, and it is declared a nuisance and misdemeanor, for any person or persons, at any time after the 1st day of April, 1895, to dig, or cause to be dug or opened, any grave, or to enter or deposit, or cause to be deposited, in such grave, any dead body, within the city of Portland, except within certain specified districts; and, by section 2, that no person or persons shall, after the day named, dig, or cause to be dug or opened, any grave. or cause to be deposited or interred in such grave any dead body, except in those portions of the city designated in section 1. Section 6 prescribes a penalty for a violation of the ordinance. The charter empowers the city to prevent the introduction of contagious diseases, etc., and "to provide for the health, cleanliness, ornament, peace, and good order of the city," and, by a subsequent clause, "to prevent and remove nuisances, and to declare what shall constitute the same." Section 32, subds. 6, 9. The plaintiff, being imprisoned, sued out a writ of habeas corpus, alleging that he is unlawfully restrained of his liberty by the defendant, to which the latter made return that he is lawfully detaining the plaintiff under and by virtue of the commitment to him issued and directed. The judgment being favorable to the plaintiff, the defendant appeals. WOLVERTON, J. (after stating the facts): The plaintiff bases his argument in support of the judgment of the circuit court upon the ground that Ordinance 9,188 is invalid, for the reason that the charter does not authorize the city of Portand to declare the burial of the dead within the city limits, outside of the excepted districts, to be a nuisance, or to punish persons for doing the acts thereby declared to be offenses against the city. It may be premised that a cemetery is not a nuisance, except conditions be present which corrupt or foul the atmosphere by unwholesome or noxious stenches, or impregnate the water of wells or springs in the vicinity by percolation through the soil, thereby endangering the public health; hence the authorities agree that it is not nor can it be regarded a nuisance per se. Wood, Nuis. § 6; 1 Dill. Mun. Corp. (4th Ed.) 373; 5 Am. & Eng. Enc. Law (2d Ed.), 791; Kingsbury v. Flowers, 65 Ala. 479; Henry v. Trustees, 48 Ohio St. 674, 30 N. E. Rep. 1122; Town of Lake View v. Rose Hill Cemetery Co., 70 Ill. 191. And whether the act of depositing a dead body in its place of sepulture is the commission of a nuisance depends entirely upon its proximity to the habitations of the living and the manner in which it is accomplished. In so far as the language of the charter conferring power upon the city to declare what shall constitute a nuisance is involved by the contention, the case of Grossman v. City of Oakland, 30 Oreg. 478, 41 Pac. Rep. 5, 36 L. R. A. 593, is precisely in point. Within the scope of the doctrine there announced and settled, the city is not thereby authorized to declare that to be a nuisance which is neither such per se nor under the common law. nor made so by statutory enactment. It would seem to follow, therefore, that the city council was not authorized to declare generally that to deposit a dead body in any portion on the inhibited district shall constitute a nuisance, when it is conceded, as here, that such an interment may be made in the usual way in some sections thereof, without giving offense to the senses of any human inhabitant, or endangering in the least measure the health of the community. Defendant's counsel insist, however, that the authority requisite for excluding burials from within the city limits may be referable to the general police power incident to all municipal corporations, and, beyond this, it is urged that the words of the charter, "to provide for the health, cleanliness, ornament, peace, and good order of the city," are commensurate for the purpose. The power thus conferred is no doubt ample to authorize the city to adopt reasonable measures prescribing rules and regulations, as it respects the place and manner of burials within the city limits; but the city cannot arbitrarily prohibit them. unless such prohibition be a reasonable exercise of the power. The legislature, in its wisdom, may, by express delegation of authority, empower the city to adopt measures of a specified and defined character, and the exercise of such authority cannot be questioned on the ground of its unreasonableness. People v. Pratt, 129 N. Y. 68, 29 N. E. Rep. 7; Cronin v. People, 82 N. Y. 318; Coates v. Mayor, etc., 7 Cow. 585,-are illustrative of the principle. In the first, the authority delegated was to make, modify, and repeal ordinances and by-laws to regulate the burial of the dead;" and it was held that the power to regulate was tantamount to the power to prohibit, the court referring to Cronin v. People, which involved the authority to prohibit the operation of slaughter houses in certain portions of the city of Albany as conclusive of the point. So, in the last case cited, the authority extended to making by-laws "for regulating * or preventing the interment of the dead" within the city, which language is so express and explicit as to leave no doubt touching the power to prohibit. But where the authority to adopt specific measures is referable merely to the general power, or where the authority to legislate with respect to a given subject is conferred and the mode of its exercise is not prescribed, there goes with it the condition that the exercise thereof, to be valid and efficacious, must be reasonable and not oppressive. 1 Dill. Mun. Corn. whether or not an ordinance is reasonable. 17 Am. & Eng. Enc. Law, 248. The prevailing presumption, however, is in favor of its reasonableness, which must be overcome by legal and competent proof to the contrary before its invalidity can be declared. Trenton Horse R. Co. v. Inhabitants of City of Trenton, supra; Com. v. Patch, 97 Mass. 221; Van Hook v. City of Selma, 70 Ala. 361. We are thus brought to the question whether the ordinance involved evinces a reasonable exercise of the general police power vested in the city, or of such as is attendant upon the power accorded to provide for the health, cleanliness, and good order thereof. The court may take judicial knowledge of the acts of incorporations and charters of municipal corporations, and as a logical consequence of the territorial limits of such municipalities, especially where they are fixed and defined by the acts giving them life, or acts amendatory thereof. 17 Am. & Eng. Enc. Law (2d Ed.), 936, 938; Fauntleroy v. Hannibal, 1 Dill. 118, Fed. Cas. No. 4,691; Binkert v. Jansen, 94 Ill. 283; Hornberger v. State, 47 Neb. 40, 66 N. W. Rep. 23; De Baker v. Railway Co., 106 Cal. 257, 39 Pac. Rep. 610; City of Kansas City v. Smart, 128 Mo. 272, 30 S. W. Rep. 773. Now, it is an admitted fact that there are considerable tracts of land, comprised within the limits of the city, which are sparsely inhabited. As was said by the court below, "there are within the corporate limits of the city of Portland several large tracts of lands, which are used solely for farming purposes, some of them containing several hundred acres, and on some of them interments could be made which would be distant a half mile or more from any human inhabitant or public thoroughfare." Under these conditions, it is assuredly not a reasonable regulation, as a police provision, or for the conservation of the health or good order of the community, to exclude burials from the whole territory, save the districts enumerated by the ordinance. If, however, as before indicated, the legislature had granted special and express power to exclude burials from within the city limits, the adoption of such an ordinance would be a legitimate exercise thereof, and no one could question its validity; yet, when the nature of the power delegated enjoins upon the city the duty of adopting such measures only as are reasonable, that becomes the measure and limit of the power, and any act in excess thereof is without legal efficacy. The ordinance being unreasonable as applied to those sparsely inhabited portions of the city and |