ation in a jurisdiction where they were not, a healing statute would be equally ineffectual to charge them. In such a case there would be a fatal defect of jurisdiction; and even in judicial proceedings, if there was originally a failure of jurisdiction, no subsequent law can confer it.1

A Statutory Privilege is not a Vested Right.

Of this class are exemptions from the performance of public duty, upon juries, or in the militia, and the like; exemptions of property or person from assessment for taxation; exemptions of property from being seized by attachment or execution, or for the payment of taxes; exemption from highway labor, and the like. The State requires the performance of military duty by those persons only who are within certain specified ages; but if, in the opinion of the legislature, the public exigencies should demand military service from all other persons capable of bearing arms, the privilege of exemption would be recalled without violation of any constitutional principle. The fact that a party had passed the legal age under an existing law could not protect him when public policy or public necessity demanded a change.2 In like manner exemptions from taxation are always subject to be recalled, when they have been granted as a mere privilege, and not for a consideration; as in the case of exemption of buildings for religious or educational purposes, and the like. So also are exemptions of property from execution. So, as we have already seen, a penalty given by statute may be taken away by statute at any time before judgment is recovered. But if a bounty is offered, and the party

1 So held in McDaniel v. Correll, 19 Ill. 228, where a statute had been passed to make valid. certain proceedings in court which were void for want of jurisdiction of the persons interested. See also Denny v. Mattoon, 2 Allen, 361. In Walpole v. Elliott, 18 Ind. 259, it was held competent to confirm the proceedings of a court not held pursuant to law; but in that case there was not a failure of jurisdiction, but only an irregular exercise of it.

2 Commonwealth v. Bird, 12 Mass. 443.

Bull v. Conroe, 13 Wis. 238.

Oriental Bank v. Freeze, 6 Shep. 109. The statute authorized the plaintiff, when there had been a breach of a prison bond, to recover upon it the amount of his judgment and costs. This was regarded by the court as in the nature of a penalty; and it was therefore held competent for the legislature, notwithstanding a breach might have occurred, to so change the law as to limit the plaintiff's

has actually earned it, the offer, and its acceptance by earning it, must be regarded as a contract, and a subsequent repeal of the statute cannot deprive the party of the moneys.1, A franchise granted by the State, with a reservation of a right to repeal, must be regarded as a mere privilege while it continues, and the legislature may recall it at any time, without affording any ground to claim redress. A mill-dam act, which gives to the owner of the dam the right to maintain it on payment to owners of lands flowed the assessed damages, may be repealed, even as to dams already erected.2

Consequential Injuries.

It is also a rule that a party has no vested right to be protected against consequential injuries arising from the exercise of rights by others. Under the police power the State sometimes destroys for the time being, and perhaps permanently, the value of property to the owner, without affording him any redress. The construction of a new way, or the discontinuance of an old one, may very seriously affect the value of property; the removal of a county or State capital will often reduce very largely the value of all the property of the place from whence it was moved: but in neither case can the party injured enjoin the act, or claim compensation from the public. The granting of a charter to a new corporation may sometimes render valueless the franchise of an existing corporation, without constituting any breach of contract between the State and the first grantees. The State of Massachusetts granted to a corporation the right to construct a toll-bridge across the Charles River, under a charter which was to continue for forty years, afterwards extended to seventy, at the end of which time the bridge was to belong to the Commonwealth. During the term the corporation was to pay two hundred pounds annually to Harvard College. Forty-two years after the bridge was opened for passengers, the State incorporated a company for the purpose of erecting another bridge over the same river a short distance only from the first, and which would accommodate the same passengers. The necessary effect would be to decrease greatly the

recovery to his actual damages. See also Welch v. Wadsworth, 30 Conn. 149; Washburn v. Franklin, 35 Barb. 599.

value of the first franchise, if not to render it altogether worthless. The terms of the first charter, however, did not make it exclusive; no contract was violated in granting the second; the injury which resulted was incidental to the exercise of an undoubted right by the State, and all the vested rights of the first corporation still remained, though less valuable in consequence of the new grant. It was therefore a case of damage without legal injury.1

Having thus endeavored to point out what are and what are not to be regarded as vested rights, and to indicate the cases in which such rights are shielded from legislative interference, it may be well now to speak of other cases in which legislation has endeavored to control parties as to the manner in which they should make use of their property, or to create claims against it through the action of other parties against the will of the owners. We do not allude now to the control which the State may exercise through the police power, and which is merely a power of regulation with a view to the best interests and the most complete enjoyment of rights by all; but to that which, under a claim of State policy, and without any reference to wrongful act or omission by the owner, would exercise a supervision over his enjoyment of undoubted rights, or in other cases would compel him to recognize and satisfy demands upon his property which have been created without his assent.

The first class of cases must be so few and so baseless in principle as to make it unnecessary to spend time in discussing them. The State of Kentucky at one time passed an act to compel the owners of lands to make certain improvements upon them within a specified time, and declared them forfeited to the State in case the improvements were not made. It would be difficult to frame, from the general principles of government, any reasonable argument in support of such a statute. It was not the exercise of the right of eminent domain, for that appropriates property to some specific public use on making compensation. It was not taxation, for that is simply an apportionment of the burden of supporting the government. It was not a police regulation, for that could not go beyond preventing an improper use of the land with reference to

1 Charles River Bridge v. Warren Bridge, 11 Pet. 420. For the doctrine of damnum absque injuria, see Broom's Maxims, 185. See also Turnpike Co. v. State, 3 Wal. 210; Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35; English v. New Haven, &c. Co., 32 Conn. 240.

the due exercise of rights and enjoyment of legal privileges by others. It was purely and simply a law to forfeit a man's property if he failed to improve it to the legislative satisfaction. To such a power, if possessed by the government, there could be no limit but the legislative discretion, and it could no more be defended on principle than the regulation which should authorize the officer to enter a man's dwelling and seize his furniture if it fell below, or his food if it exceeded, an established legal standard.1 Sumptuary laws are confessedly obnoxious, and on principle indefensible; and laws of the class we have referred to come under the same condemnation.

But different considerations arise when one man has been in possession of the land of another, and made improvements upon it in good faith, and in the expectation that he was to reap the benefit of them. If this has been done with the assent of the owner, express or implied, or if it has been suffered through his negligence, and he afterwards recovers the lands and appropriates the improvements, there will exist against him at least a strong equitable claim for reimbursement, and perhaps no sufficient reason why it should not be changed by legislation into a lien upon the land.

The statute of Vermont upon this subject will illustrate the whole class of statutes in regard to what are known as betterments. It provided, in substance, that after recovery against a defendant in ejectment, where he or those through whom he claimed had purchased or taken a lease of the land, supposing at the time that the title purchased was good, or the lease valid to convey and secure the title and interest therein expressed, the defendant should be entitled to recover of the plaintiff the full value of the improvements made by him or by those through whom he claimed, to be assessed by jury, and to be enforced against the land, and not otherwise. The value was ascertained by estimating the increased value of the land in consequence of the improvements; but the plaintiff, at his election, might have the value of the land without the improvements assessed, and the defendant should purchase the same at that price within four years, or lose the benefit of his claim for improvements. But the benefit of the law was not given to one who had entered on land

1 See Gaines v. Buford, 1 Dana, 499, where the act was declared unconstitutional. Also Violett v. Violett, 2 Dana, 326.

by virtue of a contract with the legal owner, unless it should appear that the owner had failed to fulfil such contract on his part.1

This statute, and similar ones which preceded it, have frequently been enforced by the Supreme Court of Vermont, and adjudged constitutional. In an early case the court explained. the principle of these statutes as follows: "The action for betterments, as they are now termed in the statute, is given on the supposition that the legal title is found to be in the plaintiff in ejectment, and is intended to secure to the defendant the fruit of his labor, and to the plaintiff all that he is justly entitled to, which is his land in as good a situation as it would have been had no labor been bestowed thereon. The statute is highly equitable in all its provisions, and would do exact justice if the value either of the improvements or of the land was always correctly estimated. The principles on which it is founded are taken from the civil law, where ample provision was made for reimbursing to the bona fide possessor the expense of his improvements, if he was removed from his possession by the legal owner. It gives to the possessor not the expense which he has laid out on the land, but the amount which he has increased the value of the land by his betterments thereon; or, in other words, the difference between the value of the land as it is when the owner recovers it and the value if no improvement had been made. If the owner take the land, together with the improvements, at the advanced value which it has from the labor of the possessor, what can be more just than that he should pay the difference? But if he is unwilling to pay this difference, by giving a deed as the statute provides, he receives the value as it would have been if nothing had been done thereon. The only objection which can be made is, that it is sometimes compelling the owner to sell when he may have been content with the property in its natural state. But this, when weighed against the loss to the bona fide possessor, and against the injustice of depriving him of the fruits of his labor, and giving it to another, who, by his negligence in not sooner enforcing his claim, has in some measure contributed to the mistake under which he has labored, is not entitled to very great consideration." 2

1 Revised Statutes of Vermont, 216. Brown v. Storm, 4 Vt. 37.