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public bridge and may be maintained by the county." "This," say the court, "is a direction to a public body (not an option to a private person or corporation), in the execution whereof the inhabitants of that county have a pecuniary interest. In fact the public generally may be said to have such an interest. Where persons or the public have an interest in having the act done by a public body, 'may' in such a statute means 'must.' This rule must prevail where there is nothing that • would evince a contrary intention in the statute or in the surrounding facts." Whether merely permissive or imperative depends on the intention as disclosed by the nature of the act in connection with which the word is employed and the context.3

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1 Newburgh Turn. Co. v. Miller, 5 John. Ch. 113; Malcolm v. Rogers, 5 Cow. 188.

2 Phelps v. Hawley, 52 N. Y. 23, 27; Steckert v. East Saginaw, 22 Mich.

104; Spangler v. Jacoby, 14 Ill. 297; Supervisors v. People, 25 Ill. 181.

3 Lewis v. State, 3 Head, 127; 1 Kent's Com. 463; Minor v. Mechanics' Bank, 1 Pet. 46, 64.




§ 463. Generally regarded with dis- § 471. Laws impairing obligation of


465. Ex post facto laws.

467. Retrospective laws relating to
criminal procedure.

470. Change of punishment by sub-
sequent legislation.


476. Change of remedy.

480. Vested rights inviolable.
483. Curative statutes.

§ 463. Generally regarded with disfavor.- Retrospective statutes relate to past acts and transactions. Retroactive statutes are those which operate on such acts and transactions and change their legal character or effect. Congress, as well as the states, are expressly forbidden by the federal constitution to pass any ex post facto law,' and the states are forbidden to pass any law impairing the obligation of contracts. As retrospective laws are generally unjust and in many cases oppressive, they are not looked upon with favor. Statutes not remedial will therefore not be construed to operate retrospectively, even when they are not obnoxious to any constitutional objection, unless the intent that they shall do so is plainly expressed or made to appear. Where the intention

1 Art. I, secs. 9 and 10.
2 Id.

3 Hill v. Nye, 17 Hun, 467; Dash v.
Van Kleeck, 7 Johns. 477; McMannis
v. Butler, 49 Barb. 176; Railroad v.
Murrell, 11 Heisk. 715; Goshen v.
Stonington, 4 Conn. 220; Life Ins.
Co. v. Ray, 50 Tex. 512; Fultz v. Fox,
9 B. Mon. 499; Taylor v. Rountree,
15 Lea, 725; Buckley, Ex parte, 53
Ala. 42; Barnes v. Mayor, etc. 19 id.
707; Bond v. Munro, 28 Ga. 597;
State v. Bradford, 36 id. 422; All-
husen v. Brooking, L. R. 26 Ch. Div.
Evans v. Williams, 2 Drew. &
Sm. 324; Marsh v. Higgins, 9 C. B.

551; Waugh v. Middleton, 8 Ex. 352; Couch v. McKee, 6 Ark. 484; Graham, Ex parte, 13 Rich. 277; Johnson v. Johnson, 52 Md. 668; Appeal Tax Court v. Western, etc. R. R. Co. 50 id. 274; Blanchard v. Sprague, 3 Sumn. 279; Duval v. Malone, 14 Gratt. 28; Succession of Deyraud, 9 Rob. (La.) 357; Nicholson v. Thompson, 5 id. 367; Guidry v. Rees, 7 La. 278; Gilmore v. Shuter, 2 Lev. 227; Warder v. Arell, 2 Wash. (Va.) 282; Wallace v. Taliaferro, 2 Call, 447; Elliot's Ex'r v. Lyell, 3 id. 268; Green v. Anderson, 39 Miss. 359; Commonwealth v. Hewitt, 2 H. & M. 181; Ryan v. Com

as to being retrospective is doubtful the statute will be construed as prospective only; but where the language clearly indicates that it was intended to have a retrospective effect, it will be so applied.1

464. A statute should not receive such construction as to make it impair existing rights, create new obligations, impose new duties in respect of past transactions, unless such plainly appear to be the intention of the legislature. In the absence of such plain expression of design, it should be construed as prospective only, although its words are broad enough in their literal extent to comprehend existing cases. A general provision that the statute of limitations shall run against the state will not be construed retrospectively. A statute of limitations which does not purport to include existing cases will be applied only to those which subsequently arise. Although there is no vested right in an office which may not be disturbed by legislative enactment, yet to take away the right thereto the terms of the statute in which the purpose is stated must be clear. A statute provided that every will devising or purporting to devise all the testator's real estate shall be construed to pass all the real estate which he was entitled to devise at the time of his death. It was held to be prospective merely and did not operate on wills previously executed, though the testator died after its enactment. Thus, the power of sale in such a will did not embrace lands acquired after the will was executed. It was enacted expressly in the same statute that it should not affect the construction of any will previously made. A new constitutional provision as to the ad

monwealth, 80 Va. 385; State v. Judge Bermudez, 12 La. 352; Miller v. Reynolds, 5 Martin (N. S.), 665; Orr v. Rhine, 45 Tex. 345; Crigler v. Alexander, 33 Gratt. 674; State v. Norwood, 12 Md. 195; Quilter v. Mapleson, L. R. 9. Q B. Div. 672.

1 State v. Norwood, 12 Md. 195. 2 Green v. Anderson, 39 Miss. 359. 3 Crigler v. Alexander, 33 Gratt. 674; Campbell, etc. Co. v. Nonpareil, etc. Co. 75 Va. 291; Moon v. Durden 2 Exch. 22; Dash v. Van Kleeck, 7

John. 477; Wood v. Oakley, 11 Paige, 400; Johnson v. Burrell, 2 Hill, 238; Butler v. Palmer, 1 Hill, 324; Snyder v. Snyder, 3 Barb. 621; Hackley v. Sprague, 10 Wend. 114; McMannis v. Butler, 49 Barb. 176; In re Application of Prot. Ep. P. School, 58 Barb. 161.

4 State v. Pinckney, 22 S. C. 484. 5 Pitman v. Bump, 5 Oregon, 17. 6 People v. Green, 58 N. Y. 295.

7 Green v. Dikeman, 18 Barb. 535; Parker v. Bogardus, 5 N. Y. 309.

vanced age which should prevent the incumbents of certain judicial offices from retaining them was held prospective; it did not apply to persons in office at the time of its taking effect. An officer was elected under the old constitution by the provisions of which he was eligible; a new constitutional provision took effect on the same day, which was the first day of the official term; he was held in office so as to be within the exemption. It was held also that it was not intended by the new judiciary article to overthrow or disturb what had been lawfully done under and in pursuance of the constitution and laws previously existing. A statute provided for review by a court of assessments on complaints, with power to require the amount erroneously assessed to be deducted. After an application had been made and proof taken, the law was changed. It was held that the new act did not apply to pending cases.2

The repeal of a statute giving jurisdiction takes away the right to proceed in pending cases.3 Section 711 of the Revised Statutes of the United States, which provides that the jurisdiction of the federal courts shall be exclusive of the courts of the several states as to all matters and proceedings in bankruptcy, was held not to affect a creditor's bill filed in a state court before the Revised Statutes were adopted. An act which extended for four years the time in which a magistrate's execution may be levied without renewal was held to be prospective and not to embrace executions which were issued before it was passed." A statute which gave the probate court the power to entertain bills of review of its own decrees and judgments was held to have no retrospective operation so as

1 People v. Gardner, 59 Barb. 198. 2 In re Petition of Remsen, 59 Barb. 317; In re Petition of Eager, 58 id. 557; In re Petition of Treacy, 59 id. 525.

3 Butler v. Palmer, 1 Hill, 324; Assessor v. Osbornes, 9 Wall. 567; McCardle, Ex parte, 7 id. 506; Baltimore, etc. R. R. Co. v. Grant, 98 U. S. 398; South Carolina v. Gaillard, 101 id. 433; North Canal St. Road, 10 Watts, 351; Fenelon's Petition, 7 Pa. St. 173;

Hampton v. Commonwealth, 19 id. 329; Uwchlan T. Road, 30 id. 156; Illinois, etc. Canal v. Chicago, 14 Ill. 334; Macnawhoc Plantation v. Thompson, 36 Me. 365; Lamb v. Schottler, 54 Cal 319; Smith v. Dist. Court, 4 Colo. 235; Hunt v. Jennings, 5 Blackf. 195.

4 Davis v. Lumpkin, 57 Miss. 506. See Farris v. Houston, 78 Ala. 250; Gholston v. Gholston, 54 Ga. 285; McCool v. Smith, 1 Black, 459.

5 Briggs v. Cottrell, 4 Strob. 86.

to confer upon it jurisdiction of a bill to review a decree rendered prior to the passage of the act. A statute respecting the title of personal property, requiring the deeds thereof to be recorded in the county where the property is, was held not to apply to conveyances of such property made prior to the passage of the act. The father of an illegitimate child, begotten under a former act, but born under a new act, may be compelled to contribute towards its support by a prosecution under the latter. It results from this conservatism that retrospective laws will be strictly construed.3

§ 465. Ex post facto laws.- An authoritative exposition of ex post facto laws was given in an early case by the supreme court of the United States. Chase, J., said: "The prohibition in the letter is not to pass any law concerning and after the fact, but the plain and obvious meaning and intention of the prohibition is this: That the legislatures of the several states shall not pass laws after a fact done by a subject or citizen which shall have relation to such fact and shall punish him for having done it. . . . I do not think it was inserted to secure the citizen in his private rights of either property or contracts.

. I will state what laws I consider ex post facto laws within the words and the intent of the prohibition: 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3d. Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. All these and similar laws are manifestly unjust and oppressive. In my opinion the true distinction is between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law; the former only are prohibited.

1 Palmer v. Cross, 1 Sm. & M. 48. 2 Willets v. Jeffries, 5 Kan. 470. 3 Hedger v. Rennaker, 3 Met. (Ky.) 255; Couch v. Jeffries, 4 Burr. 2460;

Moon v. Durden, 2 Ex. 22; Edmonds v. Lawley, 6 M. & W. 285; McCowan v. Davidson, 43 Ga. 480.

Calder v. Bull, 3 Dall. 386, 390.

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