dicial from a legislative act is, that the one is a determination of what the existing law is in relation to some particular thing and charges of administration, or the support of the family, is void in California. Brenham v. Story, 39 Cal. 179. By the general law of California, an administrator has a large control of the real estate as assets. The Constitution of Michigan provides that the Legislature shall not authorize, “by private or special law, the sale or conveyance of any real estate belonging to any person." An act authorizing a particular Plank Road Co. to mortgage its road, was held not to fall within this restriction, but to be a mere amendment of its charter, and to be valid. Joy v. Jackson, &c. Co. 11 Mich. 155. The Tennessee Constitution 66 says: The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals, inconsistent with the general laws of the land." A statute was passed, limiting to a period of six months from the passage thereof, actions for slaves which had been sold under judicial sale, under the provisions of a certain special act, and where heirs, legatees, or distributees were not parties to the proceedings,-held, unconstitutional and void. Morgan v. Reed, 2 Head, 276. Curative Statutes.-Broad powers have sometimes been attributed to Legislatures acting by means of curative statutes, especially in matters of public concern, so that even decisions and judgments of the courts, legal and valid when rendered, have sometimes been annulled or avoided. It is not pretended, however, that the Legislature can, in general, set aside or make of no effect a judgment establishing private rights. When such effect has been produced, it is simply as an incident to the power of the Legislature to cure irregularities in legislative or administrative proceedings. To illustrate: A statute legalizing certain appropriations, infected with irregularity, was held to make the proceedings valid ab initio, and therefore to destroy the effect of an intervening judgment declaring them invalid. King v. Course, 25 Ind. 202. And where a contract, entered into under an ordinance, had been pronounced void by the court, because the ordinance itself had not been recorded, as required by the statute, a subsequent statute removed the difficulty and overcame the adverse decision. Commonweath v. Marshall, 69 Penn. St. 328. In these and similar cases the defect or irregularity did not go to the essence or foundation of the proceeding: it was in respect to something of mere form, which the Legislature might have dispensed with originally; although it rendered the proceeding invalid in strict law, yet, as a matter of abstract right and justice, the proceeding ought to stand. Thus, in the last case, the ordinance was properly passed, the contract under it properly made, and the subsequent neglect to record the ordinance did not affect the just and equitable relations of the parties, however much it may have affected their strict legal relations. The Legislature, therefore, by curing the defect, carried out the real intentions and sustained the just rights of those interested; and the intervening judgment did not change those intentions, relations, and abstract rights; but being a mere incident, it was removed with the formal defect upon which it was based. In another large class of cases, it is held that the Legislature cannot disturb judgments-cannot make valid what the courts have pronounced void. In these cases it will be found that the element of invalidity was essential, that it affected the entire relations of the parties, and that the judgment did not, in fact, add anything to the existing defect which was itself beyond the curative power of the Legislature. The following cases are illustrations: The Legislature cannot validate an assignment in insolvency which has been declared void by the court. Denny v. Mattoon, 2 Allen, already done or happened, while the other is a predetermination of what the law shall be for the regulation and govern 361. Nor authorize the collection of an assessment already pronounced void by the court. Mayor, &c. v. Horn, 26 Md. 194. Nor validate a sheriff's deed under which the court has held that no title passed. Menges v. Dentler, 33 Penn. St. 495. Nor, it seems, validate defective pleadings without an amendment. People v. Maripoosa Co. 31 Cal. 196. Nor declare a man and woman husband and wife, where the man had a wife living from whom he had been divorced for his desertion, and without leave to marry again. White v. White, 105 Mass. 325. Where a suit has been commenced to set aside a deed, or proceeding, or transaction, it is at least doubtful whether curative legislation is not an interference with the judicial function, and void. Thus, where a married woman, not of age, had released her dower, and afterwards commenced proceedings to avoid her release, it was held that a curative statute could not validate it. Adams v. Palmer, 51 Me. 480. But, on the other hand, it was held that the Legislature may cure irregularities in the organization of a school district, attempted under a general law, although it could not, by special act, incorporate the district; and although the organization would have been wholly invalid without this subsequent confirmation, and although a suit was pending involving the validity of the organization. State v. Squires, 26 Iowa, 340. Curative statutes may have the effect of taking away property without due process of law, even though not objectionable on the ground of their interference with judicial decisions. Such effect would, of course, render them unconstitutional. Where the validating of an act, proceeding, or transaction by a curative statute would divest an intervening vested title or right, and especially where the act, proceeding, or transaction was originally not merely defeetive or voidable, but void, the curative statute will not, it seems, avail, even though enacted before any legal steps in disaffirmance had been taken. Thus, it has been held that the Legislature cannot validate defective acknowledgments of a deed, so as to affect the vested rights of a purchaser at sale on execution against the grantor. Brinton v. Seevers, 12 Iowa, 389 ; and see Thompson v. Morgan, 6 Minn. 292. Nor can the Legislature confirm a patent or survey when absolutely void, so as to override an intervening title. Sherwood v. Fleming, 25 Tex. Su. 408; Wright v. Hawkins, 28 Tex. 452. But it was held in Wildes v. Van Voorhis, 15 Gray, 139, that the Legislature may provide that a husband's past deed of land, which was exempted to the extent of $800 as a homestead, shall be valid (though the wife did not join) to convey the excess over $800, subject to dower, as against a purchaser of the husband's interest. It has been held that tax proceedings, or other proceedings taking away a right or imposing a burden, cannot be validated, where the defects in them are so essential as to make them void; for example, a tax where there was no valuation. People v. McCreery, 34 Cal. 432. Or where a tax deed is void, as between the parties, for uncertainty of description. Orton v. Noonan, 23 Wisc. 102. Or where such a deed covers land not subject to taxation. Taylor v. Miles, 5 Kans. 498, 511. Or where the deed was void for want of authority to levy the tax. Hopkins v. Mason, 61 Barb. 469. Or where a judgment for taxes upon constructive notice is void for irregularities. Nelson v. Rountree, 23 Wisc. 367. A tax deed cannot, it seems, be made conclusive evidence of essential facts-e. g., assessment and notice. Abbott v. Lindenbower, 42 Mo. 162; and see, also, Corbin v. Hill, 21 Iowa, 70; Wright v. Cradlebaugh, 3 Nev. 341; Wantlan v. White, 19 Ind. ment of all future cases falling under its provisions.* This, like other definitions on this subject, may be defective; but the genBates v. Kimball, 2 Chipp. 77. 470; White v. Flynn, 23 Ind. 46; Hope, &c. Ins. Co. v. Flynn, 38 Mo. 483. But it is otherwise where irregularities only are cured. Thus, a statute providing that no irregularity in the levy or assessment shall be set up in defence to an action for taxes, and that certain documents shall be prima facie evidence of delinquency, is valid. People v. Seymour, 16 Cal. 332. And also a statute providing that after the recording of a tax deed it shall not be invalidated by any irregularities, provided the land was subject to the tax, and it was not paid. Smith v. Cleveland, 17 Wisc. 556; see, also, Allen v. Armstrong, 16 Iowa, 508, where notice seems to be held a non-essential. An act curing irregularities in previous tax levies is constitutional. Musselman v. Logansport, 29 Ind. 533; Bellows v. Weeks, 41 Vt. 590. But an act curing "any omission, defect, or irregularity" was held not to cover an assessment to the husband, jointly with his own, of lots owned by the wife. Hamilton v. Fond du Lac, 25 Wisc. 490. The Legislature may cure irregularities in the subscription of a municipal corporation, town, or county in aid of a railroad. McMillin v. Boyles, 6 Clarke (Ia.) 304. But if the proceeding was void for want of authority, it seems the Legislature cannot validate it, so as to bind the municipality, without its consent. Hasbrouck v. Milwaukee, 13 Wisc. 37; Comm'rs of Shawnee Co. v. Carter, 2 Kans. 115. 1 The Legislature may validate an ordinance for grading streets, which had become void, because not duly recorded, and make valid the lien on lot owners. Schenley v. Commonwealth, 36 Penn. St. 29; Commonwealth v. Marshall, 69 Penn. St. 328; see, also, Mayor v. State, 3 Vroom, 453; Dean v. Charlton, 23 Wisc. 590; May v. Holdridge, 23 Wisc. 93. The resolution of a common council assenting to the location of a railroad, may be validated. People v. Law, 34 Barb. 494; Wetmore v. Law, Ib. 515. And the Legislature may legalize the establishment of county roads. Bennett v. Fisher, 26 Iowa, 497. But where proceedings for taking land are void for want of jurisdiction, they cannot be cured. Richards v. Role, 68 Penn. St. 248. That the Legislature may cure irregularities in a sale of public land, under a statute, see State v. Sickler, 9 Ind. 67; Mayers v. Byrne, 19 Ark. 308. Or in a municipal grant of land. Payne v. Treadwell, 16 Cal. 220. Or may cure other municipal irregularities. Allen v. Archer, 49 Me. 346; People v. Ingham Co. 20 Mich. 95. The Legislature may confirm a sale of infant's estate made under order of Probate Court, without the appraisement required by law. Davis v. State Bank, 7 Ind. 316; and see, also Thornton v. McGrath, 1 Duv. (Ky.) 349; Boyce v. Sinclair, 3 Bush (Ky.) 261. The foregoing are illustrations of the power of the Legislature to cure irregularities and defects which do not go to the essence of a proceeding. It is a general principle, that when an act, proceeding, or transaction is void, and not merely voidable on account of some formal defect, it cannot be cured by legislative action; whatever discrepancy in the decided cases exists—and there is much discrepancyseems to result from a disagreement as to what constitutes an essential defect, rather than from any disagreement as to the principle itself. Thus, it is held in one case that a fraudulent sale cannot be confirmed by statute. White Mts. R. R. v. White Mts. R. R. 50 N. H. 50. And in another, that the deed of a married woman, void on account of defective acknowledgment, cannot be valid eral idea is correct, and the efforts of the courts to repress the State Legislatures within their proper limits, are very curious and instructive. It is difficult precisely to classify these objectionable laws, but they will be found, generally, to range under three heads: First, Where the Legislature, by a special act, has sought to dispense with a general law in favor of an individual; Second, Where the act is one of legislation for a particular case; Third, where the act is, in its nature, judicial—i. e., seeks to influence, directly or indirectly, the determination of private controversies. In these cases the judiciary have, with an intelligence and firmness that do them great honor, frequently interposed to arrest the operations of the State Legislatures; and the Legislatures, with equal intelligence and virtue, have, in a great majority of cases, recognized the wisdom and pro *Davison v. Johonnot, 7 Met. 389. ated. Alabama, &c. Ins. Co. v. Boykin, 38 Ala. 510; but see Journeay v. Gibson, 56 Penn. St. 57. And the decided weight of authority is that such and similar deeds may be validated, because the Legislature is thereby carrying out the intention of the parties, and is doing an act just and right. In Deutzel v. Waldie, 30 Cal. 138, a statute validating a past power of attorney of a married woman, and conveyances thereunder, was sustained. In Missouri, a statute legalizing the deed of an insane person was held void, under a provision of the State Constitution, forbidding “retrospective" legislation. Routsong v. Wolf, 35 Mo. 174. An act validating usurious contracts, previously void in part, was upheld in Savings Bank v. Allen, 28 Conn. 97; but see Reiser v. William Tell, &c. Assn. 39 Penn. St. 137. A term of court, held without authority of law, may, it seems, be legalized. Walpole v. Elliott, 18 Ind. 258. The Constitution of Ohio contains the following provision: "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 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." It was held under this provision that a statute authorizing the correction of errors or mistakes in the deed, &c. of any husband or wife, heretofore or hereafter executed, intended to convey or incumber the land of the wife, was valid. Goshorn v. Purcell, 11 Ohio, N. S. 641. Also, an act was held valid which prohibited injunctions on account of errors and irregularities in certain proceedings pending, and gave a special remedy. Miller v. Graham, 17 Ohio, N. S. 1.. It was held in California that a ratification of an invalid ordinance does not operate, by relation, to make such ordinance good from its enactment, but only from the enactment of the curative statute; and thus, consequently, an invalid ordinance, having required ten days notice of a sale, and the confirmatory statute being passed only one hour before the sale took place, the sale was void. McCracken v. San Francisco, 16 Cal. 591. priety of the judicial interference, and have, without contest or reluctance, made their action conform to the decisions of the courts. So in Vermont, an act of the Assembly, releasing a debtor imprisoned on execution at the suit of a party, from his imprisonment, and freeing his body from arrest for a limited. time, has not the characteristics of a law, and is void. And the court say, "A prescribed rule of civil conduct, is the correct and universally approved definition of municipal law."* So in the same State, a special act of the Legislature, granting to a party the privilege of an appeal from a decision of the commissioner on claims of an insolvent estate, after the time allowed by law for taking appeals in such cases, is void, " as being in the nature of a sentence or decree rather than a law, wholly retrospective in its operation, and taking away a vested right." So in the same State, the Legislature has been held to have no power to pass an act authorizing a probate court to renew a commission appointing commissioners upon the estate of a deceased person, after the commission has been closed, and after the expiration of the time limited by the general law for its renewal. So in Massachusetts, where the Declaration of Rights declares (Art. 20) that the power of suspending the laws or the execution of the laws, ought never to be exercised but by the Legislature or by authority derived from it, to be exercised in such particular cases only (which means upon such particular laws) as the Legislature shall expressly provide for,—it has been held, that a resolve of the Legislature, empowering a judge of probate to take an administration bond in a mode differing from that prescribed by the general laws of the commonwealth, is not imperative; and that if it were, it would be unconstitutional.|| So in Tennessee, an act authorizing a party to prosecute a suit in the name of a deceased plaintiff, without taking out letters of administration, has been held void. The act, it was said, takes away from some their vested rights and gives them to others, changes the nature of obligations, and dispenses with * Ward v. Barnard, 1 Aik. 121; Keith v. Ware, 2 Verm. 175, decides the same point; see, also, Lyman v. Mower, 2 Verm. 517; and Kendall v. Dodge, 3 Verm. 361. + Staniford v. Barry, 1 Aik. 315. So a general act of the same kind is void. Hill See also |