pre-existing engagements; whether affecting only citizens of the State passing the law, or having an extraterritorial opera

R. R. v. Waldron, 11 Minn. 515; Thorpe v. Rutland &c. R. R. 27 Vt. 140. And crossings of highways by railroads may be regulated. Bangor &c. R. R. v. Smith, 47 Me. 34. And railroads may be made liable for cattle killed on their tracks. Indiana &c. R. R. v. Kercheval, 16 Ind. 84. And for the death of persons caused by their negligence. Board of Int. Imp. v. Scearce, 2 Duv. (Ky.) 576; B. C. & M. R. R. v. State, 32 N. H. 215; S. W. R. R. v. Paulk, 24 Geo. 356; Coosa River St. Bt. Co. V. Barclay, 30 Ala. 120. And a city may regulate the speed of trains within its limits. Whitson v. Franklin, 34 Ind. 392; but see State v. Jersey City, 5 Dutch. 170. A lottery franchise may be repealed. Moore v. State, 48 Miss. 147.

A reasonable license may be imposed upon street cars. Johnson v. Philadelphia, 60 Penn. St. 445; but see Mayor &c. v. Second Av. R. R. 34 Barb. 41. The majority of the directors of a railroad may be required to reside within the State. State v. Southern &c. Pac. R. R. 24 Tex. 80. Insurance companies may be required to give certain information to the Insurance Department. State v. Mathews, 44 Mo. 523. And officers of a corporation of a public nature-e. g., a college—may be required to take a test oath. State v. Adams, 44 Mo. 570; but as to test oaths, see note on ex post facto laws.

The true limit of the police power of the State over such corporations was stated in State v. Noyes, 47 Me. 189, as follows: That such regulations may be imposed as are necessary for the safety, not such as are required merely for the convenience of the public. In accordance with this doctrine, a statute requiring trains to wait to make connections with trains on another road was, in that case, held unconstitutional. State v. Noyes, ubi sup. On the same principle, a statute imposing a tariff of way freights was held void. Hamilton v. Keith, 5 Bush (Ky.) 458; and see People v. New York, 32 Barb. 102. See also, on the question of limit upon the police power, People v. Jackson &c. Pl. R. 9 Mich. 285, 307; Washington Bridge Co. v. State, 18 Conn. 53; State v. Jersey City, 5 Dutch. 170.

The following additional cases illustrate the exercise of the police power over corporations: Veazie v. Mayo, 45 Me. 560; Peters v. Iron Mt. R. R. 23 Mo. 107; Grannahan v. Hannibal &c. R. R. 30 Mo. 546; Galena &c. R. R. v. Appleby, 28 Ill. 283; Horn v. Atlantic &c. R. R. 35 N. H. 169; s. c. 36 N. H. 440; Smith v. Eastern R. R. 35 N. H. 356; Bulkley v. N. Y. & N. H. R. R. 27 Conn. 479; Jones v. Galena &c. R. R. 16 Iowa, 6; Bradley v. Buffalo &c. R. R. 34 N. Y. 427; Lyman v. Boston & Wor. R. R. 4 Cush. 288; Fitchburg R. R. v. Grand Junc. R. R. 1 Allen, 552; s. c. 4 Allen, 198; Clark's Adm'r v. Han. & St. Jo. R. R. 36 Mo. 202.

Analogous questions may arise as to implied powers of regulation residing in parties other than the State. Thus, on the sale of a college scholarship, the right is impliedly reserved in the college to make all needful rules and regulations as to its enjoyment; but a regulation requiring students under the scholarship to board in the college was held unreasonable and to impair the obligation of the contract. Illinois &c. College v. Cooper, 25 Ill. 148.

The Power of Taxation.-The exercise of this sovereign function of government cannot be considered as impairing the obligation of contracts, whether its operation affects charters or any other species of contract, unless under the doctrine at present accepted by the U. S. Supreme Court, the State has in a valid manner, upon a legal consideration, granted an exemption from taxation. The cases in which this doc

tion. These topics, partly growing out of the clause which we are now considering, partly out of the 8th section of the 4th

trine is generally applied are those growing out of taxation of private corporations; but the doctrine is, of course, not limited to such cases. Thus, corporations can be taxed by general law, but a special tax on the franchises of a single corporation would in many States be invalid under other constitutional provisions. Erie R. R. v. Commonwealth, 3 Brewst. (Pa.) 368; Bank of Republic v. County of Hamilton, 21 Ill. 53. The bonds of a corporation may, it seems, be taxed, and the tax deducted from the interest due bondholders. Maltby v. Reading &c. R. R. 52 Penn. St. 140; see Buffalo &c. R. R. v. Commonwealth, 3 Brewst. (Pa.) 374. And a mortgage may be taxed, the tax being payable by the mortgagor and deducted from the interest due the non-resident mortgagee. Cook v. Smith, 1 Vroom, 387. Where the State had postponed the lien of its mortgage bonds, on a railroad to allow the negotiation of first mortgage bonds, it was held that it might tax the gross earnings of the road to pay the interest and principal of its postponed mortgage debt, it not being shown that prompt payment of interest to the preferred bondholders was endangered. North Mo. R. R. v. Maguire, 49 Mo. 490. But where the State was sole stockholder in a State bank, and furnished all the capital, it was held that the claims of creditors were paramount, and that an act authorizing the sale of the effects, &c., and payment of the proceeds into the State treasury, was void. State v. Bank of S. C. 1 Rich. N. S. 63.

It has been held in Georgia that a statute taxing certain classes of debts, and making an affidavit that such tax was paid within six months after the act was passed a condition precedent to any remedy at law on the claims, was constitutional. Garrett v. Cordell, 43 Geo. 366; Walker v. Whitehead, Ib. 538; Welborn v. Akin, 44 Geo. 420; Conally v. Peck, Ib. 430; and see West v. Sanson, 44 Geo. 295. It is very plain that this provision as to the condition precedent to maintaining actions is a gross violation of the constitutional guaranty. Granting that the taxing power is unlimited, that the State may tax a debt out of existence by sweeping it all into the State treasury, all remedy on contracts cannot be taken away in this manner as an incident of the taxing power. This statute was held void in Walker v. Whitehead, 16 Wal. 314.

Eminent Domain.-The power of eminent domain, when exercised either upon the property of private individuals, or upon the property and franchises of corporations, does not impair the obligation of contracts, as is correctly and fully stated in the text. And see note on "Eminent Domain."

Palairet's

But an act for the extinguishment of ground rents on payment of their value as found by a jury was held void, the taking not being for a public use. Appeal, 67 Penn. St. 479.

Laws which operate directly upon the Remedy.

What is the Remedy?—It is laid down in all cases that the remedy may be changed provided the obligation of the contract is not altered. As this proposition is found in decisions of the United States Supreme Court, which pronounce State laws void which extend the time for redemption by mortgagors after sale, or which stay execution on judgments for a period; and in the decisions of State courts which pronounce State laws valid that exempt most, and perhaps all of the debtor's property from execution, and which hold in substance that the obligation of a contract is spent as soon as a judgment is recovered, it is plain that there is a double meaning in it, and that different courts use it to cover entirely different conclusions. In many decisions

Article, giving Congress power to pass bankrupt laws, have been repeatedly and elaborately considered. Nor are they yet

of State courts, besides those referred to in the text, it is held that the obligation is not impaired provided a substantial remedy is left to the parties. Van Rensselaer v. Snyder, 9 Barb. 302; 13 N. Y. 299; Same v. Bull, 19 N. Y. 100; Same v. Hays, 19 N. Y. 68; Conkey v. Hart, 14 N. Y. 22; Story v. Furman, 25 N. Y. 214; Guild v. Rogers, 8 Barb. 502; Van Baumbach v. Bade, 9 Wisc. 559; Smith v. Packard, 12 Wisc. 371; Coriell v. Ham, 4 Greene (Iowa), 455; Maynes v. Moor, 16 Ind. 116; Heyward v. Judd, 4 Minn. 483; Swift v. Fletcher, 6 Minn. 550; Auld v. Butcher, 2 Kans. 135; Paschal v. Perez, 8 Tex. 348; Grosvenor v. Chesley, 48 Me. 369; Kenyon v. Stewart, 44 Penn. St. 179; Clark v. Martin, 49 Penn. St. 299; Huntzinger v. Brock, 3 Grant's Cas. 243; Mechanics' &c. B'k Appeal, 31 Conn. 63. And some State cases hold this, even though the new remedy be less effective, convenient, or speedy. Holloway v. Sherman, 12 Iowa, 282 (statute giving mortgagor in foreclosure suit nine months to answer); Tarpley v. Harner, 17 Miss. 310; Morse v. Gould, 11 N. Y. 281; Penrose v. Erie Canal Co. 56 Penn. St. 46; Farnsworth v. Vance, 2 Cold. 108. And a Kansas court took the broad ground that the obligation is ended when a judgment on the contract is obtained, that this was all the remedy the party had a right to demand. Mede v. Hand, 5 Am. Law Reg. N. S. 82.

The conflict in decision has arisen from a confusion of the two meanings which may be given to the word "remedy." That word may refer to and describe the secondary or sanctioning right by which the observance of the contract is made something more than voluntary. In other words, it may describe the right to a specific performance of the contract accruing to the injured party in some cases, or the right of compensation accruing to the injured party in all cases, as soon as the contract is broken. On the other hand, it may mean the mere modes and methods by which this secondary and sanctioning right is made available, the organization and practice of the courts, the rules of pleading, the rules of evidence, and the like. If the decisions of the United States Supreme Court are carefully examined, it is plain that when they speak of the remedy being changed without impairing the ob ligation of contracts, they use the word in the second sense above stated, and that in every case in which the State statute has taken away from the remedy as used in the first sense above stated, such statute has been pronounced void. On the other hand, many State courts, using the same general formula, have applied it to the remedy, using the word in both of the above significations, and have sustained statutes which plainly impaired the obligation of contracts. It should be remembered that in giving a construction to this constitutional guaranty, the national court is supreme, and the ratio decidendi of its judgments gives the principle by which the correctness of all other decisions is to be tested. See Walker v. Whitehead, 16 Wal. 317.

The true doctrine was very concisely and accurately stated by Ch. J. Merrick, in Morton v. Valentine, 15 La. Ann. 153: "Statutes pertaining to the remedy are merely such as relate to the course and form of proceedings, but do not affect the substance of a judgment when pronounced." In Butz v. City of Muscatine, 8 Wal. 575, the Supreme Court of the United States held that taking away remedies existing at the time a contract was made, impairs its obligation, even when this is the effect of judicial decisions giving a new construction to a statute. See Olcott v. Supervisors, 16 Wal. 678.

Stay Laws.-The cases in the United States Supreme Court cited in the text, namely, Bronson v. Kinzie, McCracken v. Hayward, Grantly's Lessee v. Ewing, and

exhausted; for the division of judicial opinion in the Federal tribunal in some of the cases, has left the precise point decided

Howard v. Bugbee, have clearly settled the following rule: That State statutes which create any arbitrary stay of execution or other means of enforcing judgment, whether for a definite or for an indefinite period, when by the procedure of the courts such judgment might be executed or otherwise enforced sooner were it not for the stay, are void as against contracts existing at the time such statutes were passed. The essential remedial right, which is a part of the obligation of all contracts, implies the right to have the contract enforced without any other delay than the ordinary procedure of the courts makes necessary. If these cases do not establish the doctrine, they are meaningless. Yet State courts in numerous cases have sustained the validity of such stay laws, sometimes on the broad ground that the Legislature has absolute control over the remedy, and sometimes on the ground that the particular stay was for a definite period, while conceding that an indefinite stay would be void. The following are such cases: A statute providing for a stay of one year on giving good security was held valid. Farnsworth v. Vance, 2 Cold. (Tenn.) 108. Also a statute providing for a stay of two terms and twelve months. Er parte Woods, 40 Ala. 77. Aliter, if act provides for an indefinite stay, Ibid. And an act giving mortgagors nine months in which to answer in foreclosure suits. Holloway v. Sherman, 12 Iowa, 282. Also an act passed May 24, 1861, forbidding the rendition of judgments for debt until January 1, 1862; the court saying that the statute did not deal with the remedy, but with the functions and powers of the courts!! Johnson v. Higgins, 3 Metc. (Ky.) 566; Barkley v. Glover, 4 Metc. (Ky.) 44. And acts staying suits against persons in the service of the State or of the United States for a definite time-"three years or during the war," in Pennsylvania. Breitinbach v. Bush, 44 Penn. St. 313; Coxe v. Martin, Ib. 322; Huntzinger v. Brock, 3 Grant's Cas. 243; McCormick v. Rusch, 15 Iowa, 127; State v. McGinty, 41 Miss. 435; per contra, see State v. Carew, 13 Rich. 498; Hasbrouck v. Shipman, 16 Wisc. 296; Barnes v. Barnes, 8 Jones (Law), 366. An act staying execution on judgments confessed before demand due until demand becomes due, was held valid in Wood v. Child, 20 Ill. 209.

The following are cases holding the "stay law" invalid: When it stayed suits against persons in the service "during the war." Clark v. Martin, 49 Penn. St. 299. When it suspended remedies for an indefinite time. State v. Carew, 13 Rich. (Law) 498; Wood v. Wood, 14 Rich. (Law) 148; Burt v. Williams, 24 Ark. 91; Luter v. Hunter, 80 Tex. 688; Hudspeth v. Davis, 41 Ala. 389. When the stay, though deffnite, was excessive-three years. Coffman v. Bank of Kentucky, 40 Miss. 29. Providing for three or four annual instalment Aycock v. Martin, 37 Geo. 124; Jacobs v. Smallwood, 63 N. C. 112; Jones v. McMan n, 30 Tex. 720. Until the second term after execution. Stevens v. Andrews, 31 Mo. 205, and see Taylor v. Stearns, 18 Gratt. 244; Cutts v. Hardee, 38 Geo. 350.

It will not make the stay valid that it is conditioned on the assent of a majority of the creditors. Bunn v. Gorgas, 41 Penn, St. 441. Nor can debts without interest be made to bear interest as a compensation for the stay. Goggans v. Turnipseed, 1 Rich. N. S. 80.

Where a stay is expressly waived none can be granted. Billmeyer v. Evans, 40 Penn. St. 324; Lewis v. Lewis, 47 Penn. St. 127.

Under the guise of a stay law the right to sue cannot be permanently taken away. Thus, a statute that parties concerned in the rebellion shall be forever de

a matter of controversy; and I think, therefore, that I shall best attain the objects of this treatise by a reference to the decisions,

barred from collecting their debts is void. Vernon v. Henson, 24 Ark. 242; Reson v. Farr, Ib. 161. And a statute suspending the right of persons aiding the rebellion to prosecute or defend actions is void. Davis v. Pierse, 7 Minn. 13; McFarland v. Butler, 8 Minn. 116; Jackson v. Butler, Ib. 117.

But an act requiring an oath of loyalty from litigants was sustained, in Cohen v. Wright, 22 Cal. 293.

Stay laws are valid so far as they apply to future contracts between parties subject to the jurisdiction. Barry v. Iseman, 14 Rich. L. 129. A statute allowing the mortgagor six months instead of twenty days in which to answer in foreclosure suits was held valid as to existing mortgages, in Van Baumbach v. Bade, 9 Wisc. 559; Starkweather v. Hawes, 10 Wisc. 125.

Exemption Laws.-Statutes exempting certain property of debtors from execution have generally been held valid, even in their effect upon prior contracts. In addition to the cases mentioned in the text, the following sustain such exemptions: Gromes v. Bryne, 2 Minn. 89; Stephenson v. Osborn, 41 Miss. 119; Snider v. Heidelberger, 45 Ala. 126; Cusic v. Douglas, 3 Kans. 123; Maxey v. Loyal, 38 Geo. 531. But the exemption must not be so great as to render the remedy nugatory. Stephenson v. Osborne, 41 Miss. 119. Such statute was held void in Kibbey v. Jones, 7 Bush, 243. Homestead Exemptions.-The same is true of statutes authorizing homestead exemptions. Hardeman v. Downer, 39 Geo. 425; Pulliam v. Sewall, 40 Geo. 73; Gunn v. Barry, 44 Geo. 351 (reversed by the United States Supreme Court, see below); Cusic v. Douglas, 3 Kans. 123; Root v. McGrew, 1b. 215; Hill v. Kessler, 63 N. C. 437; In re Kennedy, 2 Rich. N. S. 216; Mede v. Hand, 5 Am. Law Reg. (N. S.) 82. In the last case, and in the other Kansas cases, a statute exempting 160 acres was upheld and applied to a past contract. This is the reductio ad absurdum of the argument, that changing the remedy does not impair the obligation. In "The Homestead Cases," 22 Gratt. 266, a clause of the Virginia Constitution providing for a homestead exemption, and a statute passed in pursuance thereof, were held void as to existing debts. The opinion is a careful discussion of the whole subject. The Supreme Court does not seem as yet to have passed upon the validity of such exemption laws in their application to past contracts. We think, however, that the principles laid down by that tribunal would condemn many of them. The Georgia statute has just been passed upon by the U. S. Supreme Court. A creditor had obtained a judgment, which at the time was, by existing law, a lien on all the lands of the debtor, with some slight exemption. Before the judgment was enforced, the new Constitution was adopted, which declares that a householder shall be entitled to an exemption of a homestead to the value of $2,000 in specie, and personal property to the value of $1,000 in specie, &c. The State courts, in the series of cases above cited, held that this applied to existing contracts, and even destroyed the lien of existing judgments. The exact point raised by the facts, and decided by the U. S. Supreme Court, was that the provision was void so far as it purported to affect the lien of existing judgments. Gunn v. Barry, 15 Wall. 610. It cannot be said, therefore, that the national court has directly passed upon the broad question whether exemption laws are valid as against existing contracts, and doubtless many State courts will still insist that they only touch the remedy. But the ratio decidendi-the whole course of argument-of the case plainly covers such statutes in