#### Edward Coles, Plaintiff in Error, v. The County of Madison, Defendant in Error.

ERROR TO MADISON.

The legislature have the power, by an act of their own, to release a penalty accruing to a county, after verdict but before judgment. Such an act is not unconstitutional, it being neither an ex post facto law, or law impairing the obligation of contracts, and it can be pleaded, puis darrien continuance.

Counties are public corporations, and can be changed, modified, enlarged, restrained, or repealed, to suit the ever varying exigencies of the state—they are completely under legislative control.

Opinion of the Court by

Chief Justice Wilson.*

This is an action of debt brought by the county commissioners of Madison county, for the use of the county, against Edward Coles, for $2,000, as a penalty for bringing into the county, and setting at liberty, ten negro slaves, without giving a bond, as required by an act of the legislature of 1819. To this action, Coles plead the statute of limitations, which plea was demurred to, and the demurrer sustained by the court, and the parties went to trial upon the issue of nil debet. A verdict was found against Coles, at the September term, 1821, of the Madison circuit court, but no judgment was rendered upon it, till September, 1825, the cause having been continued till that time, under advisement, upon, a *155motion for a new trial. In January, 1825, the legislature passed an act releasing all penalties incurred under the act of 1819, (including those sued for,) upon which Coles was prosecuted.

This act Coles plead puis darrien continuance, and renewed the motion for a new trial, but the court overruled the motion, and rejected the plea, and rendered judgment for the plaintiffs.

There are several causes assigned for error, but the one principally relied upon is, that the court rejected the defendant’s plea, (as a bar to the further prosecution of the suit,) alleging a compliance on his part with the act of January, 1825.

The only question for the decision of the court, from this statement of the case, is, Was the legislature competent to release the plaintiff in error from the penalty imposed for a violation of the act of 1819, after suit brought, but before judgment rendered? or in other words, could they, by a repeal of the act imposing the penalty, bar a recovery of it ? If the legislature can not pass an act of this description, it must be because it would be in violation of that provision of the constitution of the United States, (and which has in substance been adopted into ours,) which denies to the state legislatures the right to pass an ex post facto law, or law impairing the obligation of contracts. This is the only provision in that instrument, that has any bearing upon the present question.

Is the law of 1825, then, an ex post facto law, or does it impair the obligation of a contract ? The term ex post facto is technical, and must be construed according to its legal import, as understood and used by the most approved writers upon law and government. Judge Blaclcstone says, “ an ex post facto law is where, after an action (indifferent in itself) is committed, the legislature then, for the first time, declare it to have been a crime, and inflict a punishment upon the person who committed it.” This definition is familiar to every lawyer, and I am not aware of any case in either the English or American courts, hi which its correctness is denied.

It appears from the Federalist, a work which has been emphatically styled the text-book of the constitution, that the term was understood and used in this sense by the framers of that instrument. The authors of this work were among the ablest statesmen and civilians of the age,—two of them were members of the convention that framed the con*156stitution, and would not have been mistaken in the meaning of the terms used in it. Judge Tucker, in his notes on the Commentaries of Blackstone,"also adopts it as the true one, and it is evident from the tenor of his comments upon the principles contained in that work, that if there had been any doubt of the correctness of this one, that it would not have been passed in silence, much less would it have received his approbation.

But that the term ex post facto is applicable only to laws relating to crimes, pains and penalties, does not rest upon the bare acquiescence of the courts, or the authority of elementary writers. It has received a judicial exposition by the highest tribunal in the nation. The decision of the Supreme Court of the United States, in the case of Calder and wife v. Bull and wife, 3 Dallas, 386, must be considered as having put this question to rest. The point decided in that case was, as to the validity of an act of the legislature of Connecticut, which had a retrospective operation, but which did not relate to crimes. All the state courts, through which that case passed, decided in favor of the validity of the law. It was then taken up to the supreme court of the United States, where the judgment was affirmed. The court was clearly of opinion, that the prohibition in the United States constitution was confined to laws relating to crimes, pains and penalties. Judge Chase, in delivering his opinion, says, “ 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 by the constitution.” Patterson, Justice, said, “he had an ardent desire to have extended the provision in the constitution to retrospective laws in general,” and concludes his remarks by saying, “but on full consideration, I am convinced that ex post facto laws must be limited in the manner already expressed.” Sergeant’s Constitutional Law, 347. No higher evidence, I believe, can be adduced, of the existence of any principle of law, than is afforded by these authorities, that the law under consideration is not an ex post facto one. It is considered that it is retrospective, and that as a general principle of legislation it is unwise to enact such laws; yet it is not the province of a court to declare them void. No prohibition to the exercise of such a power by the legislature is contained in the constitution of the United States or of this state, and it is an incontrovertible principle, that all powers which are not denied them by one or other of those instruments, are granted. The next inquiry is, does this law violate the obligation of a contract?

*157This question is easily answered. A contract is an agreement between two or more, to do, or not to do, a particular act—nothing like this appears in the present case.'* If a judgment had been obtained, the law might, by implication, raise a contract between the parties; but until judgment, the defendant is regarded as a tortfeasor; he is prosecuted upon a penal statute for a tort; the action would die with him, which would not happen in the case of a contract. It is idle, therefore, to talk of a contract between the plaintiff and defendant, and it is only between the contracting parties that the legislature is prohibited from interfering. But in this case there is no contract between any parties, and all reasoning founded upon the idea of a contract, is nugatory. But it is said, the legislature could not pass this law, because the plaintiffs have acquired a vested interest in the penalty, by commencing suit, which can not be taken away.

The authorities relied upon to support this position, are not apposite. The decisions in those cases, turned on the construction of the laws, and not on the authority of the legislature to pass them. In the case of Coleman v. Shower, (2 Show.,) which was an action brought after the passage of the statute of frauds and perjuries, upon a marriage promise made by parol, the judges said, they believed the intention of the makers of that statute was only to provide for the future, and not to annul parol promises which were good and valid in law, at the time they were made. In the case of Couch qui tam v. Jeffries, (4 Burrow, 2460,) lord Mansfield placed his opinion on the intention of the legislature, which, he believed, was not to do injustice to the plaintiff, by subjecting him to costs. So, too, in Dash v. Van Kleeck, 7 Johns., 577, the same ground was assumed. The court did not intend to decide that the legislature could not pass a retrospective law, but that the one under consideration was not necessarily retrospective, and therefore ought not to receive that construction. In this opinion, the court was divided three to two. But had the plaintiffs a vested interest in the penalty before judgment? a vested right is one perfect in itself, and which does not depend upon a contingency, or the commencement of suit. Suit is the means of enforcing, or acquiring possession of a previously vested interest, but the commencement of suit does not of itself, even in a qui tam, or popular action, vest a right in the penalty sued for. The only consequence that results from the commencement of a popular action is, that it prevents another person from suing, and the executive from releasing the penalty. Blackstone, *158(vol. 2, p. 442,) in speaking of the means of vesting a right in chattel interests, says, “ and here we must be careful to distinguish between property, the right of which is before vested in the party, and of which only possession is recovered by suit or action, and property, to which a man before had no determinate title, or certain claim, but he gains as well the right, as the possession, by the process and judgment of the law. Of the former sort, are debts and choses in action.” In these cases the right is vested in the creditor by virtue of the contract, and the law only gives him a remedy to enforce it. “But,” continues he, “there is also a species of property to which -a man has not any claim or title whatsoever, till after suit commenced and judgment obtained in a court of law, where before judgment had, no one can say he has any absolute property, either in possession or in action; of this sort are, first, such penalties as are given by particular statutes, to be recovered in an action popular.” Here is an authority directly in point. In the present case no judgment had been rendered previous to the passage of the law releasing the penalty, consequently, no right to the penalty had vested in the plaintiffs, which this law directs. The right which the plaintiffs had acqxxired by the commencement of the suit was, according to Blackstone, “ an inchoate, imperfect degree of property,” which required the judgment of the court to consummate, and render it a vested right. Before judgment in a popular action, the property in the penalty is imperfect and contingent, liable to be destroyed by a repeal of the statute upon which suit is brought. This principle is settled in a variety of cases; in that of Seaton v. The United States, 5 Cranch, p. 283, Judge Marshall, in delivering the opinion of the court says, “ That it has been long settled upon general priixciples, that after the expiration or repeal of a law, no penalty can be imposed or punishment inflicted, for violations of the law committed while it was in force.” The same point was decided in the case of the Schooner Rachael v. The United States, 6 Cranch, 329; and in the case of the United States v. Ship Helen, 6 Cranch, 203, the doctrine is fully settled that, even after judgment of condemnation in rem for a breach of the embargo laws, provided the party appeals, or obtains a writ of error, he may avail5 himself of a statute repealing the penalty enacted subsequent" to such condemnation. In The People v. Coleman, the court unanimously awarded a new trial, in ordér that the defendant might avail himself of a defense given by a statute passed subsequent to the commission of the offense; and in the case *159of the Commonwealth v. Duane, 1 Binney, 601, the defendant had been indicted at common law for a libel: after a verdict, and before judgment, the legislature passed a law that, “after the passage of this act no person shall be prosecuted criminally for a libel.” The supreme court refused to give judgment on the verdict. The terms of this act were not retrospective, yet the court considered it so, and must necessarily have acknowledged the power of the legislature to pass such laws. (See also, Sergeant’s constitutional law, 348; 1 Cranch, 109, and 3 Dall., 279.) These cases require no comment. They are directly on the point under consideration, and have settled the doctrine, that a repeal of a law imposing a penalty, after verdict for the penalty, is a bar to a judgment on the verdict. The court has no longer any jurisdiction of the case. There is no law in force upon which they can pronounce judgment. If then, the legislature can, by a total repeal of the law of 1819, defeat a recovery for an infraction of it before judgment, can they not by the act of 1825, release all penalties incurred anterior to its passage? There is no rule of law which denies them the power of doing that indirectly, which they may do directly. In effect and in principle, there is no difference, and the power to do the greater act, includes the less.

It is said that the king can not remit an informer’s interest in a popular action after suit brought; this is no doubt true, but it is equally true that the parliament can. It is not pretended that the executive could remit the penalty in this case, but that the legislature may. Neither the constitution of the United States, or of this state, contain any prohibition to the exercise of such a power by the legislature, and their powers have no limits beyond what are imposed by one or other of those instruments, nor is it necessary that they should. They form an ample barrier against tyranny and oppression in every department of the government, and secure to the citizens every right in as perfect a manner as is compatible with a state of government. If they should, by mistake, or from any other cause, attempt the exercise of a power incompatible with the constitution, the obligation of a court to resist it is imperative. But “ it is not in doubtful cases, or upon slight implications, that the court should pronounce the legislature to have transcended their powers. In the present case, I am clearly of opinion, they have not done so. The law under consideration is not an ex post facto law, because the generally received and well settled import of the term is not applicable to a law of this *160character. It impairs the obligation of no contract, for the conclusive reason that no contract ever existed, and for the same reason it can not be said to destroy a vested right. 2 Dall., 304. 1 Cranch, 109.

The objection that this law works injustice to the county, is not well founded. All the rights of the county, contemplated to be secured by the law of 1819, are secured by this.

The object of the law of 1819 was to compel persons bringing slaves into this state for the purpose of emancipation, to give bond for their maintenance. This law requires the bond to be given, which has been done, and all costs of suit and damages incurred in any case to be paid, which the defendant has also offered to do in this case. The county, then, is secured, not only against prospective injury, but against all damages heretofore sustained. There is no ground of complaint, then, on the part of the county; they are secured in their rights, and lose nothing. In another point of view which this case is susceptible of, I am satisfied that the law under consideration, is not unconstitutional. On an inquiry into the different kinds of corporations, their uses and objects, it will appear that a plain line of distinction exists between such as are of a private and such as are of a public nature, and form a part of the general police of the state. Those that are of a private nature, and not general to the whole community, the legislature can not interfere with. The grant of incorporation is a contract. But all public incorporations which are established as a part of the police of the state, are subject to legislative control, and may be changed, modified, enlarged, restrained, or repealed, to suit the ever varying exigencies of the state. Counties are corporations of this character, and are, consequently, subject to legislative control.

Were it otherwise, the object of their incorporation wquld be defeated. It can not be doubted that Madison county, as a county, might be stricken out of existence, and her interest in a popular action thereby defeated. Upon what principle, then, can it be contended, that the legislature can not remit a penalty in a popular action brought for her benefit ? Every view I have been able to take of this interesting and important subject leads to the conclusion that the legislature have the constitutional power to pass the act of 1825, releasing Coles, upon the terms prescribed in that act.

The judgment of the court below must be reversed, and the proceedings remanded, with directions to the circuit *161court to receive the defendant’s plea upon his paying costs, Ac. (a) , (1)

Starr, for plaintiff in error.

Turney and Reynolds, for defendant in error.

Judgment reversed.

*

Justice Lockwood having been counsel in this cause, gave no opinion.

(a)

In the case of Fletcher v. Peck, 6 Cranch, 138, the supreme court of the United States say, that an ex post facto law is one which renders an act punishable in a manner in which it was not punishable at the time it was committed. This definition, says Kent in the 1st volume of his Comm., page 382, is distinguished for its comprehensive brevity and precision, and it extends equally to laws inflicting personal or pecuniary penalties, and to laws passed after the act, and affecting a person by way of punishment, either in his person or estate.

The legislature is competent to relieve from a forfeiture after judgment, and where the money goes to a county. Conner v. Bent, Missouri Rep., 235.

(1)

In the case of The People v. Wren, it was said by the court, (approving of the case of Coles v. County of Madison,) “As the constitution of this state contains no restrictions, either express or implied, upon the action of the legislature in such a case, we hold that it has absolute control over municipal corporations—to create, change, modify, or destroy them at pleasure.” 4 Scam., 273. The same principle is held in Bradley v. Case, 3 Scam., 585. Bush v. Shipman, 4 Scam., 186. County of Richland v. County of Lawrence, 12 Ill., 8. Trustees of Schools v. Tatman, 13 Ill., 30. Gutzweller v. The People, 14 Ill., 142.

Under the constitution of 1818, the governor had the power to grant a pardon to one convicted of a crime, and thereby not only release him from imprisonment, but also from a fine, which otherwise would have belonged to the county. Holliday v. The People, 5 Gilm., 216. And it is believed the present constitution does not lessen the power of the governor in this respect. Constitution of 1848, art. 5, sec. 8.