a failure in the supervisor to sign the certificate attached to the roll; a failure in the voters of the township to designate, as required by law, in a certain vote by which they had assumed the payment of bounty moneys, whether they should be raised by tax or loan; corrections made in the roll by the supervisor after it had been delivered to the collector; the including by the supervisor of a sum to be raised for township purposes without the previous vote of the township, as required by law; adding to the roll a sum to be raised which could not lawfully be levied by taxation without legislative authority; the failure of the supervisor to make out the roll within the time required by law; and the accidental omission of a parcel of land which should have been embraced by the roll. In each of these cases, except the last, the act required by law, and which failed to be performed, might by previous legislation have been dispensed with; and perhaps in the last case there might be question whether the roll was rendered invalid by the omission referred to, and, if it was, whether the subsequent act could legalize it. But if township officers should assume to do acts under the power of taxation which could not lawfully be justified as an exercise of that power, no subsequent legislation could make them good. If, for instance, a part of the property in a taxing district should be assessed at one rate, and a part at another, for a burden resting equally upon all, there would be no such apportionment as is essential to taxation, and the roll would be beyond the reach of curative legislation.2 And 1 See Weeks v. Milwaukee, 10 Wis. 242; Dean v. Gleason, 16 Wis. 1; post, p. *515, note. 2 This is clearly shown by McKinstry, J., in People v. Lynch, 51 Cal. 15. And see Billings v. Detten, 15 Ill. 218, Conway v. Cable, 37 Ill. 82, and Thames Manufacturing Co. v. Lathrop, 7 Conn. 550, for cases where curative statutes were held not effectual to reach defects in tax proceedings. As to what defects may or may not be cured by subsequent legislation, see Allen v. Armstrong, 16 Iowa, 508, Smith v. Cleveland, 17 Wis. 556, and Abbott v. Lindenbower, 42 Mo. 162. In Tallman v. Janesville, 17 Wis. 71, the constitutional authority 66 of the legislature to cause an irregular tax to be reassessed in a subsequent year, where the rights of bona fide purchasers had intervened, was disputed; but the court sustained the authority as a salutary and highly beneficial feature of our systems of taxation," and "not to be abandoned because in some instances it produces individual hardships." Certainly bona fide purchasers, as between themselves and the State, must take their purchases subject to all public burdens justly resting upon them. The case of Conway v. Cable is instructive. It was there held among other things, and very justly as we think, - that the legislature could not make good a - if persons or property should be assessed for taxation *in [* 383] a district which did not include them, not only would the assessment be invalid, but a healing statute would be ineffectual to charge them with the burden. In such a case there would be a fatal want of jurisdiction; and even in judicial proceedings, if there was originally a failure of jurisdiction, no subsequent law can confer it.2 Statutory Privileges and Exemptions. The citizen has no vested right in statutory privileges and exemptions. Among these may be mentioned,-exemptions from the performance of public duty upon juries, or in the militia, and the like; exemptions of property or person from assessment for the purposes of taxation; exemptions of property from being seized on attachment, or execution, or for the payment of taxes; exemption from highway labor, and the like. All these rest upon reasons of public policy, and the laws are changed as the varying circumstances seem to require. The State demands 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 might be recalled, without violation of any constitutional principle. The fact that a party had passed the legal age under an existing law, and performed the service demanded by it, could not protect him against further calls, when public policy or public necessity was tax sale effected by fraudulent combi- 19 Ill. 228, where a statute came unnation between the officers and the purchasers. In Miller v. Graham, 17 Ohio, N. s. 1, a statute validating certain ditch assessments was sustained, notwithstanding the defects covered by it were not mere irregularities; but that statute gave the parties an opportunity to be heard as to these defects. 1 See Wells v. Weston, 22 Mo. 385; People v. Supervisors of Chenango, 11 N. Y. 563; Hughey's Lessee v. Howell, 2 Ohio, 231; Covington v. Southgate, 15 B. Monr. 491; Morford v. Unger, 8 Iowa, 82; post, pp. *499, *500. So held in McDaniel v. Correll, der consideration which assumed to make valid certain proceedings in court which were void for want of jurisdiction of the persons concerned. See also Denny v. Mattoon, 2 Allen, 361; Nelson v. Rountree, 23 Wis. 367; Griffin's Ex'r v. Cunningham, 20 Grat. 109, per Joynes, J.; Richards v. Rote, 68 Penn. St. 248; State v. Doherty, 60 Me. 504; Pryor v. Downey, 50 Cal. 388; s. c. 19 Am. Rep. 656. Walpole v. Elliott, 18 Ind. 259, is distinguishable from these cases. In that case there was not a failure of jurisdiction, but an irregular exercise of it. thought to require them. In like manner, exemptions from taxation are always subject to recall, when they have been granted merely as a privilege, and not for a consideration received by the public; 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, a license to carry on a particular trade for a specified period, may be recalled before the period has elapsed. So, as before stated, a penalty given by statute may be taken away by statute at any time before judgment is recovered.5 So an offered bounty may be recalled, except as to so much as was actually earned while the offer was a continuing * and the fact that a party has purchased property or incurred expenses in preparation for earning the bounty cannot preclude the recall. A franchise granted by the State [* 384] one ; 1 Commonwealth v. Bird, 12 Mass. 443; Swindle v. Brooks, 34 Geo. 67; Mayer, Ex parte, 27 Tex. 715; Bragg v. People, 78 Ill. 328; Moore v. Cass, 10 Kan. 288; Murphy v. People, 37 Ill. 447; State v. Miller, 2 Blackf. 35; State v. Quimby, 51 Me. 395; State v. Wright, 53 Me. 328; State v. Forshner, 43 N. H. 89. And see Dale v. The Governor, 3 Stew. 387. 2 See ante, pp. *280, *281, and notes. All the cases concede the right in the legislature to recall an exemption from taxation, when not resting upon contract. The subject was considered in People v. Roper, 35 N. Y. 629, in which it was decided that a limited immunity from taxation, tendered to the members of voluntary military companies, might be recalled at any time. It was held not to be a contract, but only an expression of the legislative will for the time being, in a matter of mere municipal regulation." And see Christ Church v. Philadelphia, 24 How. 300; Lord v. Litchfield, 36 Conn. 116; East Saginaw Salt Manuf. Co. v. East Saginaw, 19 Mich. 259; s. c. in error, 13 Wall. 373. 8 Bull v. Conroe, 13 Wis. 238. unless a fee was paid for the license; and well-considered cases hold that it may be even then. See Adams v. Hackett, 5 Gray, 597; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; ante, p. *283, note. 5 Oriental Bank v. Freeze, 6 Shep. 109. The statute authorized the plaintiff, suing for a breach of a prison bond, to recover 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, even after breach, to so modify the law as to limit the plaintiff's recovery to his actual damages. See ante, p. *362, note 5, and cases cited. • East Saginaw Salt Manuf. Co. v. East Saginaw, 19 Mich. 271; s. c. 2 Am. Rep. 82, and 13 Wall. 373. But as to so much of the bounty as was actually earned before the change in the law, the party earning it has a vested right which cannot be taken away. People v. State Auditors, 9 Mich. 327. And it has been held competent in changing a county seat to provide by law for compensation, through taxation to the residents of the old site. Wilkinson v. Cheatham, 43 Geo. 258. with a reservation of a right of repeal must be regarded as a mere privilege while it is suffered to continue, but the legislature may take it away at any time, and the grantees must rely for the perpetuity and integrity of the franchises granted to them solely upon the faith of the sovereign grantor. A statutory right to have cases reviewed on appeal may be taken away, by a repeal of the statute, even as to causes which had been previously appealed.2 A mill-dam act which confers upon the person erecting a dam the right to maintain it, and flow the lands of private owners on paying such compensation as should be assessed for the injury done, may be repealed even as to dams previously erected.3 These illustrations must suffice under the present head. Consequential Injuries. It is a general rule that no one has a vested right to be protected against consequential injuries arising from a proper exercise of rights by others. This rule is peculiarly applicable to injuries resulting from the exercise of public powers. Under the police power the State sometimes destroys, for the time being, and perhaps permanently, the value to the owner of his property, 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 adjacent property; the removal of a county or State capital will often reduce very largely the value of all the real estate of the place from whence it was removed; but in neither case can the parties, whose interests would be injuriously affected, enjoin the act, or claim compensation from the public. The general laws of the State may be so changed as to transfer, from one town to another, the obligation to support certain individuals, who may become entitled to support as paupers, and the Constitution will present no impediment. The granting of a charter to a new 1 Per Smith, J., in Pratt v. Brown, 3 Wis. 611. See post, pp. *578-*579, note. 2 Ex parte McCardle, 7 Wall. 506. Pratt v. Brown, 3 Wis. 603. But if the party maintaining the dam had paid to the other party for the permanent flowing of his land, a compensation assessed under the statute, it might be otherwise. 4 For the doctrine damnum absque injuria, see Broom's Maxims, 185; Sedgwick on Damages, 30, 112. 5 See ante, p. *208, and cases cited in note. Also Wilkinson v. Cheatham, 43 Geo. 258; Fearing v. Irwin, 55 N. Y. 486. Goshen v. Richmond, 4 Allen, 460; Bridgewater v. Plymouth, 97 Mass. 390. corporation may sometimes render valueless the franchise of an existing corporation; but unless the State by contract has precluded itself from such new grant, the incidental injury [* 385]* can constitute no obstacle. But indeed it seems idle to specify instances, inasmuch as all changes in the laws of the State are liable to inflict incidental injury upon individuals, and, if every citizen was entitled to remuneration for such injury, the most beneficial and necessary changes in the law might be found impracticable of accomplishment. We have now endeavored to indicate what are and what are not to be regarded as vested rights, and to classify the cases in which individual interests, in possession or expectancy, are protected against being devested by the direct interposition of legislative authority. Some other cases may now be considered, in which legislation has endeavored to control parties as to the manner in which they should make use of their property, or has permitted claims to be created 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 possess through an exercise of the police power, a power which is merely one 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 un 1 The State of Massachusetts the value of the first franchise, if not granted to a corporation the right to render it altogether worthless. to construct a toll-bridge across the But the first charter was not exclusive Charles River, under a charter which in its terms; no contract was violated was to continue for forty years, after- in granting the second; the resulting wards extended to seventy, at the end injury was incidental to the exercise of which period the bridge was to of an undoubted right by the State, become the property of the Common- and as all the vested rights of the first wealth. During the term the corpo- corporation still remained, though reration was to pay 2001. annually to duced in value by the new grant, the Harvard College. Forty-two years case was one of damage without legal after the bridge was opened for pas- injury. Charles River Bridge v. Warsengers, the State incorporated a com- ren Bridge, 7 Pick. 344, and 11 Pet. pany for the purpose of erecting 420. See also Turnpike Co. v. State, another bridge over the same river, 3 Wall. 210; Piscataqua Bridge v. a short distance only from the first, New Hampshire Bridge, 7 N. H. 35; and which would accommodate the English v. New Haven, &c. Co., 32 same passengers. The necessary Conn. 240; Binghamton Bridge Case, effect would be to decrease greatly 27 N. Y. 87, and 3 Wall. 51. |