It is now well settled, and on obvious grounds, that the abandonment of the taxing power is not to be presumed, where act of the legislature of New Jersey, giving effect to an agreement between the tribe of the Delaware Indians and the commissioners of New Jersey, for an exchange of lands, and declaring that the lands to be purchased for the Indians "shall not hereafter be subject to any tax," by virtue of which the proposed exchange was subsequently effected, constituted a contract—and a law, repealing the section exempting the lands purchased from taxation, was held unconstitutional - although the Indians had, after the exchange, obtained a legislative act authorizing a sale of the lands, and when taxed they were owned by their vendees. Murshall, C. J.: "Every requisite to the form ation of a contract is found in the proceedings between the colony of New Jersey and the Indians. The subject was a purchase, on the part of the government, of extensive claims of the Indians, the extinguishment of which would quiet the title to a large portion of the province. A proposition to this effect is made, the terms stipulated, the consideration agreed upon; which is a tract of land with the privilege of exemption from taxation; and then, in consideration of the arrangement previously made, one of which this act of assembly is stated to be, the Indians execute their deed of cession. This is certainly a contract, clothed in forms of unusual solemnity. The privilege, though for the benefit of the Indians, is annexed, by the terms which create it, to the land itself, not to their persons. It is for their advantage that it should be annexed to the land, because, in the event of a sale, on which alone the question could become material, the value would be enhanced by it. Of this case it has been observed that there was no restriction on the colonial government- that the right of the legislature to surrender or limit the taxing power so as to bind its successor, was not raised-and that it may be sustained on the ground that it was in the nature of a treaty with the Indians." Brewster r. Hough, 10 N. H. 143; Debolt v. The Ohio Life Insurance & Trust Co. 1 Ohio State, 589. In Gordon . Appeal Tax Court, 3 How. 133, the State of Maryland had passed acts pledging the faith of the State not to impose any further tax on certain banks, upon their accepting and complying with certain conditions, as subscribing for the construction of a road, which were duly accepted and complied with. It was held, that the individual stockholders were thereby exempted from taxation for shares in the stock of the banks, and a law imposing such a tax was unconstitutional, as impairing the obligation of a contract. The construction of the statute exempting the banks, was the only question raised by the defendant's counsel, who maintaincd that it exempted merely the corporate franchise, and not the property of the banks, or the shares of the individual stockholders in the stock. This question of construction is the only one to which the opinion of the court is directed. In Providence Bank v. Billings, 4 Pet. 561, Marshall, C. J., speaking of the taxing power, said: "We will not say that a State may not relinquish it; that a consideration sufficiently valuable to induce a partial release of it may not exist." In Philadelphia & Wilmington R. R. Co. v. Maryland, 10 How. 394, the court forbore to express an opinion on the question. The case of New Jersey v. Wilson, has been followed in Connecticut. Atwater v. Woodbridge, 6 Conn. 223; Osborne v. Humphrey, 7 id. 335; Parker v. Redfield, 10 id. 495; Landon v. Litchfield, 11 id. 251; Armington v. Barnet, 15 Vt. 751; Herrick v. Randolph, 13 Vt. 525. the other hand the Superior Court of New Hampshire has strongly intimated an opinion, that the taxing power is an essential attribute of sovereignty, inherent in the people under a republican government, and that the legislature cannot exempt land from taxation, so as to bind future legislation, without an express authority for that purpose in the constitution, or in some other way directly from the people themselves. Piscataqua Bridge v. N. H. Bridge, 7 N. H. 69; Brewster v. Hough, 10 id. 138; Backus v. Lebanon, 11 id. 24. The Supreme Court of Ohio, in elaborate opinions, has recently held that the taxing power is a sovereign right of the State, essential to its existence, delegated by the people to the General Assembly, to be used as a means to secure the ends of government, and that among the powers delegated to that body, there is none to surrender or limit this right so as to abridge the control of future legisla tion over it; that it has power to exercise Un the deliberate purpose of the State to relinquish it does not distinctly appear. (x) And, on the other hand, if the constitu tion of a State exempts property from taxation, the legislature cannot authorize its assessment. (y) SECTION IV. OF THE RELATION OF THIS CLAUSE TO MARRIAGE AND DIVORCE. The effect of this clause upon the subject of marriage, or rather of divorce, has also been considered, but not yet fully ascertained and defined by adjudication. It has been contended that marriage is not a contract which comes within the scope of this clause; but it may be considered that it has been settled, that this clause may operate on the contract of it for the purposes for which it was granted, but no power over the right itself. Debolt v. Ohio Life Insurance & Trust Co. 1 Ohio St. 563; Mechanics and Traders Bank v. Debolt, id. 591; Knoup v. The Piqua Bank, id. 603; Toledo Bank v. Bond, id. 622; Milan & R. Plank Road Co. v. Husted, 3 Ohio St. 578. But see Piqua Bank v. Knoup, 16 How. 369, in which the judgment of the State court in the first three cases was reversed. (x) A bank charter does not carry with it by implication an exemption from taxation. Providence Bank v. Billings, 4 Pet. 514, 561. Marshall, C. J.: "That the taxing power is of vital importance, that it is essential to the existence of government, are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be assumed. We will not say that a State may not relinquish it, that a consideration sufficiently valuable to induce a partial release of it may not exist, but, as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandon it does not appear." The Philadelphia & Wilmington R. R. Co. v. Maryland, 10 How. VOL. III 35 376. Taney, C. J.: "This court, on several occasions, has held, that the taxing power of a State is never presumed to be relinquished, unless the intention to relinquish is declared in clear and unambiguous terms." Portland Bank v. Apthorp, 12 Mass. 252; Bank of Watertown v. Assessors of Watertown, 25 Wend. 686, 1 Hill, 616, 2 id. 353; Brewster v. Hough, 10 N. H. 138; Gordon v. Baltimore, 5 Gill, 231; Herrick v. Randolph, 13 Vt. 525. Accordingly, it has been held, that where a charter prescribes the pay. ment of a certain per cent. on the dividends of the corporation, as a tax, that is a temporary rule of taxation, which may afterwards be increased. Easton Bank v. Commonwealth, 10 Barr, 442; Debolt v. Ohio Life Insurance and Trust Co. 1 Ohio St. 563, 16 How. 416. The legis lature may exempt property from taxation for the time being, and a town cannot levy a tax upon it until the law exempting it is repealed. Brewster v. Hough, 10 N. H. 142; Capen v. Glover, 4 Mass. 305. But a town cannot, by a grant or stipulation in a conveyance, exempt property thereafter from taxation Mack v. Jones, 1 Foster, 393. (y) Hardy v. Waltham, 7 Pick. 108; Brewster v. Hough, 10 N. H. 144; Fall v. County of Sutter, 21 Cal. 237. marriage, leaving only the question as to what is the effect and operation of the clause. It might seem, on general prin ciples, that, if it be applicable at all, it must go so far as to prevent any divorce for reasons which were not sufficient ground for divorce when the marriage was contracted. Or, in other words, that a legislature might pass what law it would as to divorce, limiting its effect to marriages which should take place after the law was enacted; but that any law creating new grounds or new facilities for the divorce of parties married before the law was passed, would impair the obligation of the marriage contract, and therefore be void. We have not, however, sufficient adjudication for positively asserting this as law. (2) And in one very important case, — in which, however, it is true that whatever touches marriage is spoken altogether obiter, it is implied, that any divorce is valid which is granted for any cause which may be regarded as a breach of the mar riage contract; for if this contract be broken, there is no obliga tion left to be impaired. (a) If this be so, the operation of this (z) It was held in Clark v. Clark, 10 N. H. 380, that a general law providing for the dissolution of existing marriages, for transactions occurring subsequent to its passage, which were not grounds of divorce when the marriage was contracted, is not within the prohibition of this clause of the constitution. (a) Dartmouth College v. Woodward, 4 Wheat. 518. Marshall, C. J.: "The provision of the constitution never has 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 never has been understood to restrict the general right of the legislature to legislate on the subject of divorces." Story, J., pp. 695-697: "As to the case of the contract of marriage, which the argument supposes not to be within the reach of the prohibitory clause, because it is a matter of civil institution, I profess not to feel the weight of the reason assigned for the exception. In a legal sense, all contracts recognized as valid, in any country, may be properly said to be matters of civil institution, since they obtain their obligation and construction jure loci contractus. Titles to land, constitutmg part of the public domain, acquired by grants under the provisions of existing laws, by private persons, are certainly contracts of civil institution. Yet no one ever supposed that, when acquired bona fide, they were not beyond the reach of legislative revocation. And so, certainly, is the established doctrine of this court. A general law regulating divorces from the contract of marriage, like a law regulating remedies in other cases of breaches of contracts, is not necessarily a law impairing the obligation of such a contract. Holmes v. Lansing, 3 Johns. Cas. 73. It may be the only effectual mode of enforcing the obligations of the contract on both sides. A law punishing a breach of a contract, by imposing a forfeiture of the rights acquired under it, or dissolving it because the mutual obligations were no longer observed, is in no correct sense a law impairing the obligations of the con. tract. Could a law, compelling a specific performance, by giving a new remedy, be justly deemed an excess of legislative power? Thus far the contract of marriage has been considered with reference to general laws regulating divorces, upon breaches of that contract. But if the ar gument means to assert, that the legislative power to dissolve such a contract, without any breach on either side against clause upon the contract of marriage would be confined to pre venting a divorce at the will of one party, against the will of the other party, and for no cause. It should be added, that there is, at least, one judicial decision; that marriage is not only a contract, but much more than a contract, and so much more that it is not to be considered as within the scope or intention of the clause of the constitution. (b) the wishes of the parties, and without any judicial inquiry to ascertain a breach, I certainly am not prepared to admit such a power, or that its exercise would not intrench upon the prohibition of the constitution If, under the faith of existing laws, a contract of marriage be duly solemnized, or a marriage settlement be made (and marriage is always in law a valuable consideration for a contract), it is not easy to perceive why a dissolution of its obligations, without any default or assent of the parties, may not as well fall within the prohibitions, as any other contract for a valuable consideration. A man has quite as good a right to his wife as to the property acquired under a marriage contract. He has a legal right to her society and her fortune; and to divert such right without his default, and against his will, would be as flagrant a violation of the principles of justice, as the confisca tion of his own estates. I leave this case, however, to be settled when it shall arise. I have gone into it, because it was urged with great carnestness upon us, and required a reply. It is sufficient now to say, that as at present advised, the argument derived from this source does not impress my mind with any new and insurmountable difficulty. The dicta of Story, J., are ratified in Ponder v. Graham, 4 Fla. 23. In Holmes v. Holmes, 4 Barb. 295, it was held, that, as respects property, the contract of marriage must stand upon the same footing as other contracts, and that where the husband, by virtue of the marriage relation or as incident thereto, becomes entitled to the property of the wife, a law passed subsequent to their marriage, and vesting her property solely in herself, as her own sole and separate property, is void, as impairing the obligation of a contract. (b) Maguire v. Maguire, 7 Dana, 183, 184. Per Robertson, C. J.: "Marriage, though in one sense a contract, because, being both stipulatory and consensual, it cannot be valid without the spontaneous concurrence of two competent minds, is nevertheless, sui generis, and unlike ordinary or commercial contracts, is publici juris, because it establishes fundamental and most important domestic relations And, therefore, as every well organized society is essentially interested in the ex istence and harmony and decorum of all its social relations, marriage, the most clementary and useful of them all, is reg. ulated and controlled by the sovereign power of the State, and cannot, like mere contracts, be dissolved by the mutual consent only of the contracting parties, but may be abrogated by the sovereign will, either with or without the consent of both parties, whenever the public good, or jus tice to both or either of the parties, will be thereby subserved. Such a remedial and conservative power is inherent in every independent nation, and cannot be surrendered or subjected to political re straint or foreign control, consistently with the public welfare. And, therefore, marriage being much more than a contract, and depending essentially on the sovereign will, is not, as we presume, embraced by the constitutional interdiction of legislative acts impairing the obligation of contracts. The obligation is created by the public law, subject to the public will, and not to that of the parties. So far as a dissolution of a marriage, by public authority, may be for the public good, it may be the exercise of a legislativo function; but so far as it may be for the benefit of one of the parties, in conse. quence of a breach of a contract by the other, it is undoubtedly judicial." White v. White, 5 Barb. 474, Mason, J., held, that marriage is not a contract, in the common law or popular sense of the term, and that the relation of husband and wife is not within the prohibition of the constitution respecting contracts, and came to a conclusion adverse to that intimated by Story, J., in Dartmouth College v. Woodward. In Londonderry v. Ches ter, 2 N. H. 268, per Woodbury, J., mar. riage was held to be a mere civil contract. In SECTION V. OF THE RELATION OF THIS CLAUSE TO BANKRUPTCY AND INSOLVENCY. This subject has already been considered, to some extent, in the preceding chapter. We add, that the language of this clause is exceedingly general. It comprehends all contracts; and whatever may have been in the minds of the framers of the constitution (c) and arguments have been strongly urged on this ground, to limit the operation of this clause-it is now quite settled that the clause is to be construed by itself, so far, at least, that there is no contract which a State law can affect, which is not within the prohibition. Hence a contract between two States is a contract in this sense and for this purpose. (d) (c) Dartmouth College v. Woodward, 4 Wheat. 518, 644, per Marshall, C. J.: "It is more than possible, that the. preservation of rights of this description was not particularly in the view of the framers of the constitution, when the clause under consideration was introduced into that instrument. It is probable that interferences of more frequent occurrence, to which the temptation was stronger, and of which the mischief was more extensive, constituted the great motive for imposing this restriction on the State legislatures. But although a particular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule when established, unless some plain and strong reason for excluding it can be given. It is not enough to say, that this particular case was not in the mind of the convention, when the article was framed, nor of the American people when it was adopted. It is necessary to go further, and to say, that had this particular been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repugnant to the gen eral spirit of the instrument, as to justify those who expound the constitution in making it an exception." (d) Green v. Biddle, 8 Wheat. 1; Hawkins v. Barney, 5 Pet. 457. A contract of a State with an individual, whether it assumes the form of a grant or not, is a contract within the prohibition of the con stitution. New Jersey v. Wilson, 7 Cranch, 164; Fletcher v. Peck, 6 id. 87. Marshall, C. J.: "When, then, a law is in its nature a contract; when absolute rights have vested under the contract; a repeal of the law cannot divest those rights; and the act of annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community." Winter v. Jones, 10 Ga. 190; Adams v. Hackett, 7 Foster, 294; Providence Bank v. Billings, 4 Pet. 560. In Woodruff v. Trapnall, 10 How. 190, the State of Ar kansas chartered a bank of which it owned all the stock, and provided in the charter that the bills of the bank should be received in payment of debts due the State; it was held, that a contract subsisted be tween the State and the holders of the notes, and that a repeal of that provision could not affect notes in circulation at the time of the repeal, with which the holder might discharge any debt due from him to the State. |