88.

Where does

faith of the State, and be designed to circulate as money, on the credit of the State, in the ordinary uses of business. Briscoe v. Bank of Kentucky, 11 Pet. 257, 311; Woodruff v. Trapnall, 10 How. 204. As to what are such bills of credit, see Craig v. Missouri, 4 Pet. 410, 434-448; same case, 8 Pet. 40; Woodruff v. Trapnall, 10 How. 205; McFarland v. The Bank of Arkansas, 4 Ark. 410; Darrington v. State Bank of Alabama, 13 How. 12; Curran v. Arkansas, 15 How. 317-18. The loan certificates of Missouri were bills of credit, and formed no valid consideration for a contract. Mankster v. The State, 1 Mo. 321; Lopez v. The State, 1 Mo. 451; Craig v. Missouri, 4 Pet. 410, 435. And see State of Indiana v. Warm, 6 Hill, 33; Delafield v. State of Illinois, 26 Wend., 192; Sturges v. Crowinshield, 4 Wheat. 204-205; Madison's Letter to C. J. Ingersol, 2d Feb. 1811. Story's Const. § 1358-1373.

Bills of credit in the colonies were understood to apply to all paper money, whether funds were provided for their repayment or not. (See 2 Hutch. Hist. 208, 381.) Story's Const. § 1368. This author and the cases cited exhaust the whole learning upon the subject.

"Emit bills of credit," was omitted in the Constitution of the Confederate States. The result was that many of the States issued large amounts of bills intended to circulate as money. Paschal's Annotated Digest, p. 91, Arts. 806-811.

155. "MAKE ANY THING BUT GOLD AND SILVER COIN A TENDER the power as IN PAYMENT OF DEBTS."-The things in this article, not also proto legal tenders reside? hibited to Congress, are allowed to be exercised by it, if the power come within the purview of either of the express or implied powers granted. Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 418, 423, 442.

269.

"The interpretation which I give to this clause is, that the United States possess power to make any thing besides gold and silver a legal tender. * *They have a right to make bank paper a legal tender. Much more then, have they the power of causing it to be received by themselves in payment of taxes." (4 Elliot's Debates, 367, 368; Mr. Alston of South Carolina.) Metropolitan Bank v. Van Dyck, 27 N. Y. R. 418; The Pennsylvania Cases, 52 Penn. St. R. (2 Smith) 1-100.

There is no express delegation of power to Congress to legislate on the subject of legal tenders, neither is there any prohibition in the Constitution, upon Congress forbidding such legislation, or declaring what shall or shall not make a legal tender; the omission was not accidental. Metropolitan Bank v. Van Dyck, 27 N. Y. 422.

It was the opinion of Mr. Madison, that Congress would have the power to declare bills or notes issued on the credit of the United States, a legal tender, unless prohibited by the Constitution. Metropolitan Bank v. Van Dyck, 27 N. Y. 419, 420, 422, 423, 426.

The first legal tender act was in favor of foreign coin. (Act 1st July, 1793.) Metropolitan Bank v. Van Dyck, 27 N. Y. 424, where are cited all the acts on the subject.

A contract dated 16th December, 1851, payable "in gold or silver

coin, lawful money of the United States," may be paid in United States legal tender notes, as lawful money of the United States. Rodes v. Bronson, 34 N. Y. R. 649. When the contract matured, it was payable in the only lawful money of the country. The power 83, 97-99. of Congress to declare treasury notes legal tenders for debts contracted previously to its passage, as well as those contracted subsequently, has been affirmed by this court. (Metropolitan Bank v. Van Dyck, 34 N. Y. R. 654.) Rodes v. Bronson, 34 N. Y. 654.

to change the currency

A law of Congress to change the currency in which a contract Does a law may be discharged, does not impair the obligation of the contract. of Congress (Faw v. Marsteller, 2 Cr. 20; Dowmans v. Dowmans, 1 Wash. Virg. 26; Pong v. Lindsay, Dyer, 82; Barrington v. Potter, Dyer, impair the 81 B. fol. 67; United States v. Robertson, 6 Pet. 644; Conkey v. contracts? Hart, 4 Kern. 22; Mason v. Haile, 12 Wh. 370.) Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 455-8.

The above authorities also settle, that if a contract be made payable in a particular currency, and that currency ceases to exist before it is due, it must be discharged in the lawful currency at the date of maturity. See, particularly, Faw v. Marsteller, 2 Cr. 20, and Metropolitan Bank v. Van Dyck, 27 N. Y. Rep.

to be uncon

A law will not be held to be unconstitutional, unless it is clearly When will a and plainly so. (Morris v. The People, 3 Den. 381; Ex parte law be held McCollom, 1 Cow. 564; Fletcher v. Peck, 6 Cr. 87; Ogden v. San- stitutional? ders, 12 Wh. 29; Adams v. Howe, 14 Mass. 345.) Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 460.

law?

156. "PASS ANY BILL OF ATTAINDER OR EX POST FACTO LAW." Define ex --These terms relate to criminal law only; but as the words "ex post fucto post facto law, or law impairing the obligation of contracts," are only separated by a comma, many of the judges treat the words in 142–143. this connection as synonymous; and thus seem to make ex post facto apply to contracts.

The critical reader is referred to the phrase in Burrill's law dic. tionary, for the civil law origin of the term, wherein will be found its exact application. Quae ab initio inutilis fuit institutio, ex post facto non convalescere non potest. Translated: An institution or act which was of no effect at the beginning (when made or done), cannot acquire force or validity from after matter. Nunquam crescit ex post facto præteriti delicti æstimatio. The estimate of the character of a past offense is never enhanced by after matter. See 1 Kent's Com. 409. Here follows an instance where it is used in reference to contracts.

Ex post facto, literally construed, operating upon a previous fact, yet the restricted sense stated, is the one in which it has always been held. It was the sense in which it was understood at the time the Constitution was adopted, both in this country and in England. (1 Blackstone's Com. 46; Calder v. Bull, 3 Dallas, 390.) Locke v. New Orleans, 4 Wallace, 173, 174.

the obliga

157. THE OBLIGATION OF THE CONTRACT.-The laws which What laws exist at the time and place of the making of the contract, enter enter into into and form a part of it; and they embrace alike those which tion of the affect its validity, construction, discharge and enforcement. contract?

155-159.

160-161.

How are

155.

(Green v. Biddle, 8 Wheat. 92; Bronson v. Kinzie. 1 How. 319; McCracken v. Hayward, 2 How. 612; People v. Bond, 10 California, 570; Ogden v. Sanders, 12 Wheat. 231.) Von Hoffman v. City of Quincy, 4 Wallace, 550. (This principle has been denied. Farnsworth v. Vance, 2 Coldwell (Tenn.) Rep. 111.)

As, if the acts so change the remedies as materially to impair the rights and interests of the owner, they are just as much a violation of the compact as if they overturned his rights and interests. (Green v. Biddle, 8 Wheat. 92.) Voi Hoffman v. City of Quincy, 4 Wallace, 551. Or the Illinois two-thirds twelve months stay law. (1 Howard, 297.) Id. Or the State bankrupt insolvent laws, as to anterior contracts. Sturges v. Crowinshield, 4 Wheat. 122.) Id. But not as to subsequent contracts. Ogden v. Sanders, 1 Wheat. 213.) Id.

The ideas of validity and remedy are inseparable, and both are the validity parts of the obligation, which is guarantied by the Constitution and remedy connected? against invasion. The obligation of the contract "is the law which binds the parties to perform their agreement.' (Sturges v. Crowninshield, 12 Wheat. 257.) Von Hoffman v. City of Quincy, 4 Wallace, 552; Story v. Furnam, 25 N. Y. (11 Smith), 223. Where the State incorporated a bank, with no other stockholder than the State, which issued bills, for which all the bank assets were legally bound (and which provided that the issues were receivable for all public dues), laws which withdrew the funds from the bank, and appropriated them to various other purposes than paying the notes of the bank, impaired the obligation of the contract, and were unconstitutional. (Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608.) Curran v. The State of Arkansas, 15 How. 310. The guaranty that the bills were receivable for all public dues, was a contract with the bill-holders; and to repeal the guaranty, impaired the contract as to bills then in circulation. Woodruff v. Trapnall, 10 How. 205; affirmed. Hawthorn v. Caleff, 2 Wall. 23. A law repealing a bank charter, does not impair the obligation of a contract, because the property bona fide heid, is still a fund for the creditors. (Muma v. The Potomac Co. 8 Pet. 281.) Curran v. Arkansas, 15 How. 310, 331; This seems not to be so, as to creditors, where the corporators are liable personally for the issues. Corning v. McCulloch, 1 Comst. 47, 49; Conant v. Van Schaick. 24 Barb. 87; Bronson v. Kinzie, 1 How. 311; Hawthorne v. Caleff, Id. 311. The legislature may repeal the guaranty that the bills shall be received for all public dues; but the repeal only operates upon future issues, the guaranty remaining as to those outstanding. Woodruff v. Trapnall, 10 How. 206.

What of the repeal of bank charters?

157.

What is the

doctrine of bridges?

A bridge charter, which declared that no other bridge should be built within the designated limits, is a contract, within the meaning of the Constitution. Bridge Proprietors v. Hoboken Co. 1 Wall. 146-7. But a railroad bridge is not a bridge, within the meaning of a statute of New Jersey of 1790. Bridge Proprietors v. Hoboken Co. 1 Wall. 147. A railroad bridge does not necessarily impair the right of an ordinary toll-bridge. (Mohawk Bridge Co. v. Utica & S. R. R. Co. 6 Paige, 561; Thompson v.

New York & Harlem R. R. Co. 3 Sandf. 625; McRae v. Wilming ton Raleigh R. R. Co. 17 Conn. 56; Enfield Toll-bridge v. The Hartford & New Haven R. R. Co. 17 Coun. 56;) Bridge Proprietors v. Hoboken, 1'Wall. 150-1. As to what a ferry privilege is, see Conway v. Taylor, 1 Black. 603; Hartford Bridge Co. v. Union Ferry Co. 29 Conn. 210. It may be granted by Kentucky without the concurrent assent of Ohio. Id. (Cites Trustees of Newport v. Taylor, 6 J. J. Marsh, 134)

160.

A contract is an agreement to do or not to do a particular Define a thing. (Sturges v. Crowinshield, 4 Wheat. 197; Green v. Biddle, contract? 8 Wheat. 92; Ogden v. Saunders, 12 Wheat. 256, 297, 302, 316, 335; Gordon v. Prince, 3 Wash. C. C. Rep. 319.) Story's Const. § 1376.

This provision has never been understood to embrace other con- To what tracts than those which respect property, or some object of value, contracts only does and confer rights which may be asserted in a court of justice. the inhibiDartmouth College v. Woodward, 4 Wh. 629. A private charter tion apply? is such a contract. Id. 518. So also an act incorporating a banking institution. Providence Bank v. Billings, 4 Pet. 514; Gordon v. Appeal Tax Court, 3 How. 133; Planter's Bank v. Sharp, 6 Id. 301; Curran v. Arkansas, 15 Id. 304. And a grant of land by the legislature of a State. Fletcher v. Peck, 6 Cr. 87; Terrett v. Taylor, 9 Id. 43. And so is a compact between two States. Green v. Biddle, 8 Wh. 1; Allen v. McKean, 1 Sumn. 276. And see 2 Pars. on Cont. 509. An appointment to a salaried office, however, is not a contract, within the meaning of the Constitution. Butler v. Pennsylvania, 10 How. 402; Commonwealth v. Mann, 5 W. & S. 418; Commonwealth v. Bacon, 6 S. & R. 322; Barker v. Pittsburgh, 4 Barr, 49; Jones v. Shaw, 15 Tex. 577. All contracts are subject to the right of eminent domain existing in the several States; and the exercise of this power does not conflict with the Constitution. West River Bridge Co. v. Dix, 6 How. 507; Rundle v. Delaware & Raritan Canal Co., 14 Id. 80; The State v. De Lesdernier, 7 Tex. 99.

It is a compact between two or more persons. (Fletcher v. Peck, 6 Cranch, 136; s. c. 2 Pet. Cond. 321.) Story's Const. $1376.

A law of a State, issuing transferable swamp land-scrip, and exempting the land from taxation, for ten years or until reclaimed, constituted a contract, between the State and the holders of the land-scrip, issued under the act. McGee v. Mathis, 4 Wallace,

156.

160.

tion 4

An act of incorporation is a contract between the State and the Is an act of stockholders. All courts, at this day, are estopped from question- incorporaing the doctrine. (Dartmouth College v. Woodward, 4 Wheat. 418.) contract? The Binghampton Bridge, 3 Wallace, 72.

Such contracts are construed liberally by the government. The Binghampton Bridge, 3 Wallace, 74. Nothing is to be taken by intendment against the State. The Binghampton Bridge, 3 Wallace, 75; The Charles River Bridge, 11 Peters, 544; Jefferson Br. Bank v. Skelley, 1 Black. 446. But the State may grant franchises by reference to another statute on the same subject-matter.

What contracts are included?

155.

Id. After the grant of such franchises, the restraint is upon the legislature itself. Id.

The Supreme Court of the United States will determine for itself, irrespective of the State decisions, what is the contract of a State, Jefferson Branch Bank v. Skelley, 1 Black (U. S.), 442, 443.

It includes executory as well as executed contracts. (Fletcher v. Peck, 6 Cranch, 137; s. c. 2 Pet. Cond. R. 321, 322.) Story's Const. 1376. Whoever may be the parties to them. (Fletcher v. Peck, 6 Cranch, 87.) Von Hoffman v. City of Quincy, 4 Wallace,

549.

Because the State is not a single sovereign, but a part of the Union, whose Constitution is supreme and imposes limits upon the legislatures of the several States. (New Jersey v. Wilson, 7 Cranch. 164; Terret v. Taylor, 9 Cranch, 43.) Von Hoffman v. City of Quincy, 4 Wallace, 550.

Also express and implied contracts. The grantor is estopped by both. (Fletcher v. Peck, 6 Cr. R. 137; s. c. 2 Cond. R. 321, 322; Dartmouth College v. Woodward, 4 Wheat. R. 657, 658, 688, 689.) 1 Story's Const. § 1377.

And assessments upon the stockholders of banks which have gone into liquidation. Commonwealth v. Cochituate Bank, 3 Allen, Mass. 42.

What of retrospective laws?

571.

155-156.

158. MERELY RETROSPECTIVE.-Because a law is merely retrospective, does not bring it within the prohibition. Locke v. New Orleans, 4 Wallace, 173.

The Constitution does not prohibit the States from passing retrospective laws generally, but only ex post facto laws. Watson v. Mercer, 8 Pet. 110. Retrospective laws, divesting vested rights, are impolitic and unjust; but they are not ex post facto laws within the meaning of the Constitution, nor repugnant to its provisions (Albee v. May, 2 Payae. 74), unless they impair the obligation of a contract. Baltimore & Susquehanna R. R. Co. v. Nesbit, 10 How. 401. Should a statute declare, contrary to the general principles of law, that contracts founded upon an illegal or immoral consideration, whether in existence at the time of passing the statute, or which might hereafter be entered into, should nevertheless be valid and binding upon the parties, all would admit the retrospective character of the enactment; but it would not be repugnant to the Constitution of the United States. Satterlee v. Mathewson, 2 Pet. 412; Curran v. Arkansas, 15 How. 10; Aspinwall v. The Commissioners, &c., 22 How. 365; Dartmouth College v. Woodward, 4 Wh. 628. For the same inhibitions in the Constitution of Texas, see Paschal's Annotated Dig. 168, 170.

The prohibition has no reference to the degree of impairment. The largest and least are alike forbidden. Sturges v. Crowinshield, 12 Wheat. 257; Green v. Biddle, 8 Wheat. 84; Von Hoffman v. City of Quincy, 4 Wall. 552; Planter's Bank v. Sharp, 6 How. 327; Farnsworth v. Reaves, 2 Coldwell, 111. Its value must not be diminished by legislation. (Planter's Bank v. Sharp, 6 How. 327.) Von Hoffman v. City of Quincy, 4 Wallace, 553.