vance whatever additional money was required for that purpose and to hold the stocks so bought as security for the moneys so advanced by him, with interest thereon, and for his commissions for making the purchases, all of which Sisson agreed to pay. If the stocks bought depreciated so that they were not worth the amount of such advances, interests and commissions, Edwards was empowered to sell them to reimburse himself. Under this arrangement, Edwards had bought stocks from time to time for Sisson, had received divers sums of money from Sisson for that purpose, and had advanced sums of money for him in payment thereon, the particular amounts whereof were unknown to the plaintiff administrator, but were well known to the defendant. In November, 1907, and January, 1908, the stocks bought by Edwards had depreciated and he threatened to sell the same to repay the advances, interest and commissions owing to him, whereupon, to prevent the making of such sales, Sisson delivered to Edwards, in pledge as additional security for the moneys so owing to Edwards, two stock certificates, representing 200 shares of the Arizona Lumber and Timber Company. These shares were owned by Sisson and were not a part of the stocks purchased by Edwards in pursuance of the aforesaid agreement. A few days after the pledge of this stock was made Sisson died. The plaintiff is the duly appointed administrator of his estate. Edwards threatened to sell the two certificates last mentioned to obtain repayment of the moneys so due him from Sisson, whereupon this action was begun. The complaint prays for judgment directing the delivery to plaintiff of the two last mentioned certificates of stock and enjoining the threatened sale thereof, and that Edwards be compelled to account for the moneys furnished by Sisson to him and that judgment be given in favor of plaintiff for the balance found due upon such accounting.

"The action was begun on June 12, 1908. It was predicated on the provisions of section 26, article IV, of the constitution, as it then existed, authorizing a recovery of money paid on a contract for the sale of corporate stock on margin. A demurrer to the complaint was filed and before it was disposed of, the people, on November 3, 1908, adopted an amendment of section 26, article IV, aforesaid. Thereupon an amended complaint and a general demurrer thereto were filed, and this

demurrer, as above stated, was sustained by the court below. On behalf of the respective defendants it is claimed that the amendment of the constitution takes away all prior rights of action to recover moneys paid on contracts for margin sales of stock and all rights growing out of such contracts.

"Prior to the amendment of November 3, 1908, section 26 was as follows:

""The legislature shall have no power to authorize lotteries or gift enterprises for any purpose, and shall pass laws to prohibit the sale in this state of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery. The legislature shall pass laws to regulate or prohibit the buying or selling of the shares of the capital stock of corporations in any stock board, stock exchange, or stock market under the control of any association. All contracts for the sale of shares of the capital stock of any corporation or association, on margin or to be delivered at a future day, shall be void, and any money paid on such contracts may be recovered by the party paying it by suit in any court of competent jurisdiction.'

"The section as amended on November 3, 1908, is as follows: ""The legislature shall have no power to authorize lotteries or gift enterprises for any purpose and shall pass laws to prohibit the sale in this state of lottery or gift enterprise tickets or tickets in any scheme in the nature of a lottery. The legislature shall pass laws to prohibit the fictitious buying and selling of the shares of the capital stock of corporations in any stock board, stock exchange, or stock market under the control of any corporation or association. All contracts for the purchase or sale of shares of the capital stock of any corporation or association without any intention on the part of one party to deliver and of the other party to receive the shares, and contemplating merely the payment of differences between the contract and market prices on divers days, shall be void, and neither party to any such contract shall be entitled to recover any damages for failure to perform the same, or any money paid thereon, in any court of this state.'

"The concluding sentences of the respective sections show the changes made by the amendment which are involved in this action. The original section gives the broader description of the thing prohibited. It forbids all contracts for the

sale of stock 'on margin, or to be delivered at a future day.' The new section forbids such sales only when they are made 'without any intention on the part of one party to deliver and of the other party to receive the shares, and contemplating merely the payment of differences between the contract and market price on divers days.' The contract between Sisson and Edwards, as it is alleged, was clearly a contract for the purchase and sale of stocks on margin (see Parker v. Otis, 130 Cal. 330, [92 Am. St. Rep. 56, 62 Pac. 571]), and as such was forbidden by the constitutional provision in force at the time it was made. But the allegations of the complaint do not show a contract which comes within the description of the thing forbidden by the amended section. The complaint does not aver that the sales were made without any intention to deliver or receive the stock, or that the parties contemplated merely the payment of differences between the buying price and the market price on a future day. Both the old and the new section declare that the forbidden contracts 'shall be void.' The contract as alleged was void under the old section, the one then in force, but it would not have been void under the new section, if it had been made after its adoption.

"The effect of the adoption of the amendment of 1908 was to repeal or extinguish all provisions of the former section that are not re-enacted in the amended section. If it has a retroactive effect it would validate the contract for the purchase of stocks as it is alleged in the complaint, and render it binding upon both parties. This would necessarily defeat the action to recover from Edwards the money paid thereon by Sisson, for it does not appear that Edwards is in any respect in default thereon; hence he could not be called upon to return the money paid to him thereunder and used by him. in pursuance thereof, if the validity of the contract is established. The first question for determination is, therefore, whether or not the repeal or extinguishment of the former section had the effect of validating the contract which by it was expressly declared to be void.

"The general rule, applicable alike to constitutions and statutes, is that they are not to be considered retrospective in their operation, unless the intention to make them so clearly appears from their terms. (Gurnee v. Superior Court, 58 Cal. 90; Watt v. Wright, 66 Cal. 204, [5 Pac. 91]; Oakland

v. Whipple, 44 Cal. 303; Cooley on Constitutional Limitations, 97.) The amendment is therefore not retrospective in operation, for it contains nothing to that effect.

"The established rule is that if a contract is void by the law in force at the time it is made, the subsequent repeal of the law will not validate such contract. The following cases declare this rule: Hannay v. Eve, 7 U. S. (2 Cranch,) 242, [2 L. Ed. 427]; Milne v. Huber, 3 McLean, 216, [Fed. Cas. No. 9617]; Mays v. Williams, 27 Ala. 267; Woods v. Armstrong, 54 Ala. 150, [25 Am. Rep. 671]; Pacific G. Co. v. Dawkins, 57 Ala. 115; Mitchell v. Doggett, 1 Fla. 371; Denning v. Yount, 62 Kan. 220, [50 L. R. A. 103, 61 Pac. 803]; Quarles v. Evans, 7 La. Ann. 543; Springfield Bank v. Merrick, 14 Mass. 324; Hathaway v. Moran, 44 Me. 67; Robinson v. Barrows, 48 Me. 186; Banchor v. Mansell, 47 Me. 58; Webber v. Howe, 36 Mich. 155, [24 Am. Rep. 590]; Ludlow v. Hardy, 38 Mich. 690; Handy v. St. Paul etc. Co., 41 Minn. 188, [16 Am. St. Rep. 695, 4 L. R. A. 466, 42 N. W. 872]; Andling v. Levy, 57 Miss. 58; Decell v. Loewenthal, 57 Miss. 331, [34 Am. Rep. 449]; Bailey v. Mogg, 4 Denio. 62; New York etc. Co. v. Van Horn, 57 N. Y. 477; Roby v. West, 4 N. H. 285, [17 Am. Dec. 423]; Puckett v. Alexander, 102 N. C. 95, [3 L. R. A. 43, 8 S. E. 767]; Hughes v. Boone, 102 N. C. 164, [9 S. E. 286]; Nichols v. Poulson, 6 Ohio 309; Denny v. McCown, 34 Or. 47, [54 Pac. 952]; Gilliland v. Phillips, 1 S. C. 155; Hunt v. Robinson, 1 Tex. 748; Sayer v. Brown, 7 Ind. Terr. 675, [104 S. W. 878]

"The text writers declare the same doctrine. (9 Cyc. 576; 15 Am. & Eng. Ency. of Law, 242; 1 Page on Contracts, sec. 333, p. 517; Bishop on Contracts, sec. 479; 2 Sutherland on Statutes, 2d ed., p. 1219.)

"Statutes changing the law relating to usury seem to constitute an exception to this rule. In Curtis v. Leavitt, 15 N. Y. 85, 152, 173, 229, 254; Woodruff v. Scruggs, 27 Ark. 26, [11 Am. Rep. 777]; Iowa Assoc. v. Heidt, 107 Iowa 297, [70 Am. St. Rep. 197, 43 L. R. A. 689, 77 N. W. 1050]; Savings Bank v. Allen, 28 Conn. 97: Welch v. Wadsworth, 30 Conn. 149, [79 Am. Dec. 239], and Andrew's v. Russell, 7 Blackf. (Ind.) 474, there were retrospective statutes expressly forbidding the party to set up the defense of usury in actions upon pre-existing contracts, or, in effect, taking away the

right to make such defense. In Ewell v. Daggs, 108 U. S. 148, [27 L. Ed. 682, 2 Sup. Ct. Rep. 408]; Wood v. Kennedy, 19 Ind. 68, and Parmelee v. Lawrence, 48 Ill. 339, the amended statutes merely omitted and consequently repealed by implication the penal provisions of the previous usury law. The defense of usury must be made affirmatively in some recognized mode, or it is waived. (22 Ency. of Plead. & Prac. pp. 421, 422.) The usurious contract, although said by the statute to be 'void,' is held to be only voidable at the election of the payer, and money paid thereon cannot be recovered. (Matthews v. Ormerd, 140 Cal. 582, [74 Pac. 136].) The general rule that the repeal of a law does not validate contracts declared void thereby is recognized and admitted in all the above mentioned cases, and the usury law is said to be an exception. The decisions are based on the ground that the right to set up usury as a defense and avoid the contract to pay principal or interest, is in the nature of a statutory penalty upon the lender and comes within the rule that the repeal of a penal law instantly releases the penalty imposed, and that it is not a property right, but a mere privilege pertaining only to the remedy, which the legislature may take away. The situation of one who has agreed to pay usury is not similar to that of the decedent here. One who sets up the defense of usury to avoid his note is not seeking to recover money which he has paid, or of which he has been deprived. He is endeavoring to avoid the payment of money which he justly owes. He is given the right to do this solely for the sake of accomplishing the public purpose of preventing the making of usurious contracts, and not to reimburse him for any outlay he has made. The decedent, on the other hand, has paid money to the broker. He had, in contemplation of the law as it then stood, suffered a pecuniary loss. He was allowed to recover the loss, whereas the one who pleaded usury to avoid payment of his debt was allowed to inflict a positive injury upon the payee.

"There are a few decisions not involving usury laws which declare that the particular contracts under consideration therein, although void by the law in force when made, were rendered valid by the subsequent repeal of the law. (Washburn v. Franklin, 35 Barb. (N. Y.) 599; Central Bank v. Empire etc. Co., 26 Barb. (N. Y.) 23; Hess v. Werts, 4 Serg. &