New Orleans Gas Company v. Louisiana Light Company, 115 U.S. 650
(1885)
"The constitutional prohibition upon state laws impairing the
obligation of contracts does not restrict the power of the state to
protect the public health, the public morals, or the public safety, as
the one or the other may be involved in the execution of such contracts.
Rights and privileges arising from contracts with a state are subject to
regulations for the protection of the public health, the public morals,
and the public safety, in the same sense, and to the same extent, as are
all contracts and all property, whether owned by natural persons or
corporations. [. . .]
"A state can no more impair the obligation of a contract by her
organic law [constitution] than by legislative enactment; for her
constitution is a law within the meaning of the contract clause of the
national constitution. Railroad Co. v.
[115 U.S. 650, 673] McClure, 10 Wall. 511;
Ohio Life Ins. & T. Co. v. Debolt, 16 How. 429; Sedg. St. & Const. Law,
637 And the obligation of her contracts is as fully protected by that
instrument against impairment by legislation as are contracts between
individuals exclusively. State v. Wilson, 7 Cranch, 164; Providence Bank
v. Billings, 4 Pet. 514; Green v. Biddle, 8 Wheat. 1; Woodruff v.
Trapnall, 10 How. 190; Wolff v. New Orleans,
103 U.S. 358 ." [New Orleans Gas Company v. Louisiana Light Company, 115 U.S. 650
(1885)]
"There is no more important provision in the Federal Constitution
than the one which prohibits States from passing laws impairing the
obligation of contracts, and it is one of the highest duties of this
court to take care the prohibition shall neither be evaded nor
frittered away. Complete effect must be given
*449
to it in all its spirit. The inviolability of contracts, and the
duty of performing them, as made, are foundations of all
well-ordered society, and to prevent the removal or disturbance of
these foundations was one of the great objects for which the
Constitution was framed."
[Murray v. City of Charleston, 96 U.S. 432, 1877 WL 18506 U.S.
(1877)]
Sinking Fund Cases, 99 U.S. 700 (1878)
Independent of these
views, there are many considerations which lead to the conclusion
that the power to impair contracts, by direct action to that end,
does not exist with the general government. In the first place, one
of the objects of the Constitution, expressed in its preamble, was
the establishment of justice, and what that meant in its relations
to contracts is not left, as was justly said by the late Chief
Justice, in Hepburn v. Griswold, to inference or conjecture.
As he observes, at the time the Constitution was undergoing
discussion in the convention, the Congress of the Confederation was
engaged in framing the ordinance for the government of the
Northwestern Territory, in which certain articles of compact were
established between the people of the original States and the people
of the Territory, for the purpose, as expressed in the instrument,
of extending the fundamental principles of civil and religious
liberty, upon which the States, their laws and constitutions, were
erected. By that
ordinance it was declared, that, in the just preservation of rights
and property, 'no law ought ever to be made, or have force in the
said Territory, that shall, in any manner, interfere with or affect
private contracts or engagements bona fide and without fraud
previously formed.' The same provision, adds the Chief
Justice, found more condensed expression in the prohibition upon the
States against impairing the obligation of contracts, which has ever
been recognized as an efficient safeguard against injustice; and
though the prohibition is not applied in terms to the government of
the United States, he expressed the opinion, speaking for himself
and the majority of the court at the time,
that it was clear 'that those who framed
and those who adopted the Constitution intended that the spirit of
this prohibition should pervade the entire body of legislation, and
that the justice which the Constitution was ordained to establish
was not thought by them to be compatible with legislation of an
opposite tendency.' 8 Wall. 623.
[99
U.S. 700, 765]
Similar
views are found expressed in the opinions of other judges of this
court. In Calder v. Bull, which was here in 1798, Mr. Justice Chase
said, that there were acts which the Federal and State legislatures
could not do without exceeding their authority, and among them he
mentioned a law which punished a citizen for an innocent act; a law
that destroyed or impaired the lawful private contracts of citizens;
a law that made a man judge in his own case; and a law that took the
property from A. and gave it to B. 'It is against all reason and
justice,' he added, 'for a people to intrust
a legislature with such powers, and therefore it cannot be presumed
that they have done it. They may command what is right and prohibit
what is wrong; but they cannot change innocence into guilt, or
punish innocence as a crime, or violate the right of an antecedent
lawful private contract, or the right of private property. To
maintain that a Federal or State legislature possesses such powers
if they had not been expressly restrained, would, in my opinion, be
a political heresy altogether inadmissible in all free republican
governments.' 3 Dall. 388.
In Ogden v. Saunders, which was before
this court in 1827, Mr. Justice Thompson,
referring to the clauses of the
Constitution prohibiting the State from passing a bill of attainder,
an ex post facto law, or a law impairing the obligation of
contracts, said: 'Neither provision can strictly be considered as
introducing any new principle, but only for greater security and
safety to incorporate into this charter provisions admitted by all
to be among the first principles of our government. No
State court would, I presume, sanction and enforce an ex post facto
law, if no such prohibition was contained in the Constitution of the
United States; so, neither would retrospective laws, taking away
vested rights, be enforced. Such laws are repugnant to those
fundamental principles upon which every just system of laws is
founded.'
In the Federalist, Mr.
Madison declared that laws impairing the obligation of contracts
were contrary to the first principles of the social compact and to
every principle of sound legislation; and in the Dartmouth College
Case Mr. Webster contended that acts, which were there held to
impair the obligation of contracts, were not the exercise of a power
properly legislative,
[99 U.S. 700, 766]
as their object and
effect was to take away vested rights. 'To justify the taking away
of vested rights,' he said, 'there must be a forfeiture, to adjudge
upon and declare which is the proper province of the judiciary.'
Surely the Constitution would have failed to establish justice had
it allowed the exercise of such a dangerous power to the Congress of
the United States.
In the
second place, legislation impairing the obligation of contracts
impinges upon the provision of the Constitution which declares that
no one shall be deprived of his property without due process of law;
and that means by law in its regular course of administration
through the courts of justice. Contracts are property, and a large
portion of the wealth of the country exists in that form. Whatever
impairs their value diminishes, therefore, the property of the
owner; and if that be effected by direct legislative action
operating upon the contract, forbidding its enforcement or transfer,
or otherwise restricting its use, the owner is as much deprived of
his property without due process of law as if the contract were
impounded, or the value it represents were in terms wholly or
partially confiscated. [Sinking Fund Cases, 99
U.S. 700 (1878)]
Milwaukee v. White, 296 U.S. 268 (1935)
|
"Even if the judgment is deemed to be colored by the
nature of the obligation whose validity it establishes, and
we are free to re-examine it, and, if we find it to be based
on an obligation penal in character, to refuse to enforce it
outside the state where rendered, see Wisconsin v. Pelican
Insurance Co.,
127 U.S. 265 , 292, et seq. 8 S.Ct. 1370, compare
Fauntleroy v. Lum,
210 U.S. 230 , 28 S.Ct. 641, still the obligation
to pay taxes is not penal. It is a statutory liability,
quasi contractual in nature, enforceable, if there is no
exclusive statutory remedy, in the civil courts by the
common-law action of debt or indebitatus assumpsit.
United States v. Chamberlin,
219 U.S. 250 , 31 S.Ct. 155; Price v. United States,
269 U.S. 492 , 46 S.Ct. 180; Dollar Savings Bank v.
United States, 19 Wall. 227; and see Stockwell v. United
States, 13 Wall. 531, 542; Meredith v. United States, 13
Pet. 486, 493. This was the rule established in the English
courts before the Declaration of Independence. Attorney
General v. Weeks, Bunbury's Exch. Rep. 223; Attorney General
v. Jewers and Batty, Bunbury's Exch. Rep. 225; Attorney
General v. Hatton, Bunbury's Exch. Rep.
[296 U.S. 268,
272] 262; Attorney General v. _ _, 2 Ans.Rep.
558; see Comyn's Digest (Title 'Dett,' A, 9); 1 Chitty on
Pleading, 123; cf. Attorney General v. Sewell, 4 M.&W. 77. "
[Milwaukee v. White,
296 U.S. 268 (1935)] |
Black' Law Dictionary, Fourth Edition, p. 401
"CONVENTIO PRIVATORUM NON POTEST PUBLIC0 JURI DEROGARE. The
agreement of private persons cannot derogate from public right, i.
e., cannot prevent the application of general rules of law, or
render valid any contravention of law. Co. Litt. 166a; Wing. Max. p.
746, max. 201."
[Black' Law Dictionary, Fourth Edition, p. 401]
Black' Law Dictionary, Fourth Edition, p. 1263
"PACTA PRIVATA JURI PUBLICO DEROGARE NON POSSUNT. 7 Coke, 23.
Private compacts cannot derogate from public right."
[Black's Law Dictionary, Fourth Edition, p. 1263]
Black' Law Dictionary, Fourth Edition, p. 1359
PRIVATORUM CONVENT10 JURI PUBLICO NON DEROGAT. The agreement of
private individuals does not derogate from the public right, [law.]
Dig. 50, 17, 45, 1; 9 Coke, 141; Broom, Max. 695.
[Black' Law Dictionary, Fourth Edition, p. 1359]
Bouvier's
Law Dictionary, 1856
IDIOT, Persons. A person who has been without understanding from
his nativity, and whom the law, therefore, presumes never
likely to attain any. Shelf. on Lun. 2.
3. Idiots are incapable of committing crimes, or entering into
contracts. They cannot of course make a will; but they may acquire
property by descent.
[Bouvier's Law Dictionary, 1856]
[EDITORIAL: Can a person who is an IDIOT
about law enter into a binding contract that forfeits his rights?}
Black's Law Dictionary, Sixth Edition, p. 1245
"Quasi contact. An obligation which law creates in
absence of agreement; it is invoked by courts where there is unjust
enrichment. Andrews v. O'Grady, 44 Misc.2d 28, 252 N.Y.S.2d
814, 817. Sometimes referred to as implied-in-law contracts
(as a legal fiction) to distinguish them from implied-in-fact
contracts (voluntary agreements inferred from the parties' conduct).
Function of "quasi-contract" is to raise obligation in law where in
fact the parties made no promise, and it is not based on apparent
intention of the parties. Fink v. Goodson-Todman Enterprises,
Limited, 9 C.A.3d 996, 88 Cal.Rptr. 679, 690. See also
Contract." [Black's Law Dictionary, Sixth Edition, p. 1245]
Black's Law Dictionary, Sixth Edition, p. 1390
"Social contract, or compact. In political philosophy, a
term applied to the theory of the origin of society associated
chiefly with the names of Hobbes, Locke and Rousseau, though it can
be traced back to the Greek Sophists. Rousseau (Contract
Social) held that in the pre-social state man was unwarlike and
timid. Laws resulted from the combination of men who agreed,
for mutual protection, to surrender individual freedom of action.
Government must therefore rest on the consent of the governed."
[Black's Law Dictionary, Sixth Edition, p. 1390]
Bouvier's
Law Dictionary, 1856
INDENTURE, conveyancing. An instrument of writing containing a
conveyance or contract between two or more persons, usually indented
or cut unevenly, or in and out, on the top or, side.
2. Formerly it was common to make two instruments
exactly alike, and it was then usual to write both on the same
parchment, with some words or letters written between them, through
which the parchment was cut, either in a straight or indented line,
in such a manner as to leave one-half of the word on one part, and
half on the other. The instrument usually commences with these
words, "This indenture," which were not formerly sufficient, unless
the parchment or paper was actually indented to make an indenture 5
Co. 20; but now, if the form of indenting the parchment be wanting,
it may be supplied by being done in court, this being mere form.
Besides, it would be exceedingly difficult with even the most
perfect instruments, to out parchment or paper without indenting it.
Vide Bac. Ab. Leases, &c. E 2; Com. Dig. Fait, C, and note d; Litt.
sec. 370; Co. Litt. 143 b, 229 a; Cruise, Dig t. 32, c. 1, s. 24; 2
Bl. Com. 294; 1 Sess. Cas. 222.
[Bouvier's Law Dictionary, 1856]
In General
"Party cannot be bound by contract that he has not made or authorized." Alexander v. Bosworth (1915), 26 C.A. 589, 599, 147
P.607.
"The intention of one party does not make contract." Barrios & Co. v. Pettigrew (G. V.) Co. (1924), 68 C.A. 139, 228 P. 676.
"The complaint, on its face, must show that the plaintiff has the better right." Rogers v. Shannon (1877), 52 C. 99.
Statutory Contract
"Statutory is a contract which the statute says shall be implied from certain facts, and is governed by the ordinary rules
relating to contracts." Foley v. Leisy Brewing Co., 89 N.W. 230, 231, 116 Iowa 176.
Contracts Implied in Law
"A contract "implied in law" is but a duty imposed by law and treated as a contract for the purposes of a remedy only." G. T.
Fogle & Co. v. United States, 135 F.2d 117, 120.
"Contracts "implied in law" imply a promise to pay, whether or not any such promise was made or intended." In Re Altmann's Will,
266 N. Y. S. 773, 779, 149 Misc. 115.
"Contract "implied in law" is, however, a term used to cover a class of obligations, where the law, though the defendant did not
intend to assume an obligation, imposes an obligation upon him, notwithstanding the absence of intention on his part, and, in many
cases, in spite of his actual dissent. Such contracts...may be termed quasi-contracts and are not true contracts. They are found
generally;
2. Upon statutory, official, or customary duties...
Bouvier's Law Dictionary (1914), Vol. I, p. 661. Clark on Contracts, Quasi-Contracts, p. 531.
Quasi-Contracts
"An obligation similar in character to that of a contract, but which arises not from an agreement of parties but from some
relation with them, or from a voluntary act of one of them."
Bouvier's Law Dictionary, supra, Vol. III, p. 2781.
"Quasi contracts were a well defined class under the civil law. By the civil code of Louisiana they are defined to be "the
lawful and purely voluntary acts of man, from which there results any obligation whatever to a third person and sometimes a
reciprocal obligation between parties. In quasi-contracts the
obligation arises not from consent, as in the case of contracts, but from the law of natural equity." Bouvier's Law Dictionary, id.
"According to Professor Ames (Lect. on Leg. Hist. 160), the term was not found in the common law, but it has been taken by
writers of the common law from the Roman Law.
* * *
It need only be added here that quasi contracts were in Roman Law in almost infinite variety, but were divided into five (5)
classes:
1. Gregotirorum gestio, the management of the affairs of another, without authority..." Bouvier's Law Dictionary, id.
Quasi-Contracts as fictions of law
"Both in Roman and English law there are certain obligations which were not in truth contractual, but which the law treats as IF
they were. They are contractual in law, but not in fact, being the subject-matter of a FICTITIOUS extension of the sphere of contract
to cover obligations which do not in reality fall within it." Salmond, Salmond on Jurisprudence, p. 642 (9th Edition, 1937, Sweet
& Maxwell, Ltd. England).
"Constructive/quasi-contracts are created by statute on the premise that they are needed as a matter of reason and justice, and
are allowed to be enforced ex contractu." Kraft Foods Co. of Wisc. v. Commodity Credit Corp.,266 F.2d 254; Hill v. Waxberg, 237 F.2d
936.
"Ex contractu is a form of action under the civil law, whereas under the commmon law it would arise from actions of case,
trespass, replevin, trover, or detinue. Ex contractu actions are from the civil law, not the common law, and are enforced by actions
in personam." Indep. School District of White Bear Lake v. City of White Bear Lake, 292 N.W. 777.
"Constructive/quasi contracts are based solely upon a legal fiction or fiction of law." Hill v. Waxberg, 237 F.2d 936.
"Since there is no agreement and a remedy is disired, they are treated as a contract." Stipp v. Doran, 18 F.2d 83, 84.
"Since there is no agreement as in contracts, the obligation arises from natural equity." Riscarhson v. Permacel Tape Corp.,
244 F.2d 80.
"Constructive/quasi contracts include obligations founded on statutory duties." Donovan v. Kansas City, 175 S. W. 2d 874; In Re
United Burton Co., 140 F. 495, 502.
"A quasi contractual action presupposes acceptance and retention of a benefit by one party with full appreciation of the
facts, under circumstances making it inequitable for him to retain the benefit without payment of its reasonable value." Major-
Blakeney Co. v. Jenkins (1953), 121 C.A.2d 325, 263 P.2d 655, hear den.; Townsend Pierson, Inc. v. Holly-Coleman Co. (1960), 178
C.A.2d 373, 2 Cal. Rptr. 812.
"Existence of implied contract is usually a question of fact for trial court." Caron v. Andrew (1955), 133 C.A.2d 412, 284 P.2d
550, hear den.; Bolster (C. F.) Co. v. Boespflug (J. C.) Construction Co. (1959), 167 C.A.2d 143, 334 P.2d 247, hear den.
"A debt resulting from a normal agreement or contract has always been the result of a promise to pay, and invoked a remedy in
the form of assumpsit. However, an assumpsit cannot be applied to actions of debts where there is no agreement unless the court does
so by means of a fiction, because in order to support assumpsit, it is necessary to allege a promise, and without agreement there is no
promise. Historically, the courts have adopted the fiction of a promise, and it was declared that a promise was implied in law." Keener, "Quasi-Contracts", pp. 4-5.
As Convenience for Remedy in Equity
"For the convenience of the remedy, they have been made to figure as though they sprang from contract, and have appropriated
the form of agreement." Anson, Contracts (8th Ed.), p. 362.
The Supreme Court of California stated that actions founded on licenses issued by the State and their fees are in form common law
actions of assumpsit upon an implied contract. Welsbach Co. v. State of California (1929), 206 C. 556.
". . . not only unscientific, and therefore theoretically wrong, but is also destructive of clear thinking, and therefore
vicious in practice. It needs no argument to establish the proposition that it is not scientific to treat as one and the same
thing an obligation that exists in every case because of the assent of the defendant, and an obligation that not only does not depend
in any case upon his assent, but in many cases exists without his assent." Keener, "Quasi-Contracts", p. 3.
Promises Implied in Law
"A promise implied in law is one in which neither the words nor the conduct of the party involved are promissory in form, or
justify an inference of a promise. The term is used to indicate that a party is under a legally enforceable duty, as he would have
been if he had in fact made a promise. Ferrous Products Co. v. Gulf States Trading Co., 323 S. W. 2d 292.
Benefit and Burden from Contracts
"It is a well settled rule of law that he who seeks benefits of contract must also assume burdens." Higgins v. Monckton (1938),
28 C.A.2d 723, 83 P.2d 516.
"Voluntary acceptance of benefit of transaction is equivalent to consent to all obligations arising from it, so far as facts are
known, or ought to be known, to person accepting." Northern Assurance Co. v. Stout (1911), 16 C.A. 548, 117 P. 617.
"Legislature is without power to affect past contracts, or to alter or destroy nature or tenure of estates [i. e. the estate of
California]." Dewey v.Lambier, 7 Cal. 347; McKinney's New California Digest (1961), Constitutional Law § 125, p. 548 and §
134, p. 558.
Performance
"Where performance depends on existence of a given thing [consideration, benefit] assumed as the basis of the agreement,
performance is excused to extent that thing ceases to exist the fair import of their terms, without reference to the hardships that may
fall upon the parties. . .If persons voluntarily express themselves in writing, they must be bound by language employed; law presumes
that they understand import of their own contracts, and have entered into them with knowledge of their mutual rights." Abbott v. Gatch, 71 D. 735.
Sutton v. U.S., 256 U.S. 575 (1921)
Second. It is contended that since the contract provided that the
government 'inspectors will keep a record of the work done,' since
their estimates were relied upon by the contractor, and since by
reason of the inspector's mistake the contractor was led to do work
in excess of the appropriation, the United States is liable as upon
an implied contract for the fair value of the work performed. But
the short answer to this contention is that since no official of the
government could have rendered it liable for this work by an express
contract, none can by his acts or omissions create a valid contract
implied in fact. The limitation upon the authority to impose
contract obligations upon the United States is as applicable to
contracts by implication as it is to those expressly made. Nor did
the subsequent use of the excavation by the government imply a
promise to pay for it if at any time thereafter Congress should
appropriate money to be applied in completing the improvement.
'Whenever a structure is permanently affixed to real property
belonging to an individual, without his consent or request, he
cannot be held responsible because of its subsequent use. It
becomes his by being annexed to the soil; and he is not obliged
to remove it to escape liability. He is not deemed to have
accepted it so as to incur an obligation to pay for it, merely
because he has not chosen to tear it down, but has seen fit to
use it.' United States v. Pacific Railroad,
120 U.S. 227, 240 , 7 S. Sup. Ct. 490, 496 (30 L. Ed. 634).
And the work here in question was not done with the consent or at
the request of the United States; for neither the government
inspectors [256 U.S.
575, 581] nor the Secretary of War had authority either
to obligate the government or accept voluntary services. See Rev.
Stat. 3679, as amended by Act March 3, 1905, c. 1484, 4, 33 Stat.
1257, and Act February 27, 1906, c. 510, 3, 34 Stat. 48 (Comp. St.
6778).
There is no necessity to consider what may be the equitable rule
where there is a claim of unjust enrichment through work done upon
the land of another under a mistake of fact. See Bright v. Boyd, 1
Story, 478, Fed. Cas. No. 1,875; Id., 2 Story, 608, Fed. Cas. No.
1,876; Williams v. Gibbes, 20 How. 535, 538; Canal Bank v. Hudson,
111 U.S. 66 , 82-83, 4 Sup. Ct. 303; Armstrong v. Ashley,
204 U.S. 272, 285 , 27 S. Sup. Ct. 270. Nor need we consider
whether the doctrine is ever applicable to transactions with the
government. For the right to sue the United States in the Court of
Claims here invoked must rest upon the existence of a contract
express or implied in fact. United States v. North American Co.,
253 U.S. 330, 335 , 40 S. Sup. Ct. 518.
[Sutton
v. U.S., 256 U.S. 575 (1921)]
In the course of a cause tried in 1816,FN62
in the Circuit Court in Philadelphia, Mr. Justice Washington is
reported to have made the interlocutory remark that Congress was not
restricted from impairing the obligation of contracts. This remark
has been since frequently quoted without either approval or
disapproval. It is a singular instance of a casual observation,
passing for years unaffirmed and unchallenged by all the great
commentators upon the Constitution. This was said in reference to a
grant by the Federal government of a patent for an invention. If it
meant that Congress was at liberty to recall its voluntary grant, I
shall not dispute it. If it even meant that the government was not
compelled to keep its own contracts, I need not dispute it, for
government can never be coerced. It can only be sued according to
its own provisions; and whether it be or be not constitutional for
government to extinguish its contracts without fully performing
them, it nevertheless remains that the creditor can in no event
recover anything more than the government chooses he shall have. The
remark does not indeed imply that Congress had any such general
power; but only that it was not restricted by any such limitation in
the exercise of its particularly granted powers.
FN62 Evans v. Eaton, 1
Peters's Circuit Court, 323.
That the power to impair the obligation of contracts is not
generally forbidden to Congress in express terms, I admit. It was
unnecessary, upon the theory of the Constitution, to have so
forbidden it. That such power in the case of bankrupts is expressly
authorized, and not therefore to be taken as forbidden by the
general prohibitions in favor of private rights, I also admit.
But
that it is not withheld or otherwise forbidden, I deny. It is,
except in the authorized cases, indeed forbidden, by the very nature
of the instrument, from the fact that it is not authorized.
It is forbidden by those amendments which forbid the infringement of
private rights and property. It is forbidden by the scheme and
object of the instrument, which it itself declares was ‘to establish
justice and secure the blessings of liberty.’*503
Thirteen States met to form a common government. Before such
meeting, and except as then formed, this government had no
existence. Certain powers were invested for the general advantage in
the hands of what Marshall, C. J., in McCulloch v.
Maryland, called the common agent; what Daniels, J., in Fox
v. Ohio, called the common arbiter. Such of these powers as
were important to be exercised for the general good, like the power
to make war, maintain a navy, enter into treaties, and the like,
were conferred on the agent, and were forbidden to the States;
others were left concurrently to both; still others were forbidden
to both. Among the powers of the States when they thus met was the
power to impair the obligation of contracts; but only within their
respective limits. New York had no power to impair contracts in
Delaware, but only in New York; nor had Delaware power to impair
contracts in New York, but only in Delaware. Now, the whole history
of the time shows this was regarded as a dangerous power; as a power
to be limited even between the States and their own citizens- not
to be extended throughout all. It was, therefore, forbidden to
the States. In particular cases of general concern, the power was
expressly granted to the Federal government. But to assume it was
otherwise granted, and to imply it, because expressly forbidden to
the States and not to the Federal government, is to reverse the
whole spirit and purpose of the times; to turn a restraint upon a
limited evil into permission to make it general. Since then, except
in these specific instances, when, before this legal tender law, has
Congress claimed to exercise such a power? Has it ever been
suggested that Congress can direct divorces-can authorize a man to
discharge a contract for one hundred bushels of wheat by delivering
fifty, or fulfil a contract to convey one thousand acres of land by
conveying nine hundred? We all know it cannot.
**33
Indeed, that Congress has power to impair the obligations of private
contract is absolutely without authority. I find no court that has
so decided. On the contrary, the very
*504
reverse has been declared by this very court, and other high
constitutional authorities.FN63
FN63
Wilkinson v. Leland, 2 Peters, 646, 657; Calder v.
Bull, 3 Dallas, 386;
Sturges v. Crowninshield, 4 Wheaton, 206; Ogden v.
Saunders, 12 id. 269, 270, 312, 303, 304, 327, 331, 336, 354;
Federalist, No. 44.
If Congress possesses, by implication, this power to impair the
obligation of contracts, why was authority to establish a uniform
system of bankruptcy expressly granted to it? If Congress took this
sovereign power in any case without express grant, surely it would
be in connection with bankruptcies, where it might be regarded in
some aspects as a regulation of commerce, and as, indeed, in the
interest of creditors generally. As Marshall, C. J., remarked, ‘the
bankrupt law had been said to grow out of the exigencies of
commerce, and to be applicable solely to traders.’ The FederalistFN64
refers to the grant of power to establish a uniform system of
bankruptcy ‘as so intimately connected with the regulation of
commerce, and so preventive of frauds, that its expediency was not
likely to be drawn into question.’ That such a power was regarded as
necessaryFN65 to be
specifically granted, establishes, I maintain, that the Federal
government took by the Constitution, even as it was before the
restrictive amendments were added, no general power of impairing the
obligation of contracts.
FN64 No. 42.
FN65
12 Wheaton, 274.
And when the dissenting judges of this bench declared, in Hepburn
v. Griswold, ‘that it is difficult to perceive how it can be
in accordance with the spirit of the Constitution to destroy
directly the creditors' contract for the sake of the individual
debtor, but contrary to its spirit to affect remotely its value for
the safety of the nation,’ I answer that in the one case it is in
accordance with this spirit, because it is so expressly declared and
provided; and in the other it is not in accordance with it, because
it is not provided for at all, but is in violation of its general
restrictions,-a discrimination which, recalling those provisions of
the Constitution, I submit it is not difficult to perceive;
difficult, indeed, not to perceive.*505
**34
This whole question, however, of the power of Congress to impair the
obligation of contracts depends upon the other question of what
power Congress can take by implication; returns, indeed, to the
pivotal question of whether Congress is a body of absolute or
limited powers. And here let me remark, that it seems to me very
immaterial whether it be considered that it is for Congress to
determine what means are necessary and proper to carry into effect
the delegated powers, and that its decision is not subject to
revision here, or whether it be that this court is the ultimate
judge, if it be decided that any means are appropriate to the
exercise of any of the delegated powers which make the government
stronger. The one conclusion would relieve Congress from all
restraint but that of its own judgment; the other conclusion would
relieve it from all but the express limitations of the Constitution.
If by the assertion of the discretion of Congress it be meant that
when the end is legitimate, and within the scope of the
Constitution, and a choice of appropriate means exists, Congress is
the sole judge of which to select among those means, and that its
judgment in such selection is not open to review, I shall not deny
it. But to hold that Congress, in selecting the means to carry into
effect any of the delegated powers, may select means not authorized,
not necessary nor proper, not appropriate nor plainly adapted, and
can make them appropriate simply by its selection of them, is
to make the power of Congress generally absolute.
[
Clark v. United States, 95 U.S. 539 (1877)
The first objection made to the claim is that the contract was not in
writing as required by the Act of June 2, 1862, entitled "An Act to
prevent and punish fraud on the part of officers entrusted with the
making of contracts for the government." 12 Stat. 411. This act
provides:
SEC. 1. That it shall be
the duty of the Secretary of War, of the Secretary of the Navy, and of
the Secretary of the Interior immediately after the passage of this act
to cause and require every contract made by them severally on behalf of
the government or by their officers under them appointed to make such
contracts to be reduced to writing and signed by the contracting parties
with their names at the end thereof, a copy of which shall be filed by
the officer making and signing the said contract in the "returns office"
of the Department of the Interior (hereinafter established for that
purpose) as soon after the contract is made as possible, and within
thirty days, together with all bids, offers, and proposals to him made
by persons to obtain the same, as also a copy of any advertisement he
may have published inviting bids, offers, or proposals for the same, all
the said copies and papers in relation to each contract to be attached
together by a ribbon and seal and numbered in regular order numerically
according to the number of papers composing the whole return.
The act further
provides that the officer shall affix an affidavit to his return, and
makes it a misdemeanor to neglect making his return, and directs the
heads of departments to furnish printed instructions and forms of
contracts &c. It is
contended on the part of the government that this act is mandatory and
binding both on the officers making contracts and on the parties
contracting with them, whilst the claimant insists that it is merely
directory to the officers of the government, and cannot affect the
validity of contracts actually made, though not in writing. The Court of
Claims has heretofore held the act to be mandatory, and as requiring all
contracts made with the departments named to be in conformity with it.
The arguments by which this view has been enforced by that court are of
great weight, and, in our judgment, conclusive. The facility with which
the government may be pillaged by the presentment of claims of the most
extraordinary character, [95 U.S. 542] if allowed to be sustained by
parol evidence, which can always be produced to any required extent,
renders it highly desirable that all contracts which are made the basis
of demands against the government should be in writing. Perhaps the
primary object of the statute was to impose a restraint upon the
officers themselves, and prevent them from making reckless engagements
for the government; but the considerations referred to make it manifest
that there is no class of cases in which a statute for preventing frauds
and perjuries is more needed than in this. And we think that the statute
in question was intended to operate as such. It makes it unlawful for
contracting officers to make contracts in any other way than by writing
signed by the parties. This is equivalent to prohibiting any other mode
of making contracts. Every man is supposed to know the law. A
party who makes a contract with an officer without having it reduced to
writing is knowingly accessory to a violation of duty on his part. Such
a party aids in the violation of the law. We are of opinion,
therefore, that the contract itself is affected, and must conform to the
requirements of the statute until it passes from the observation and
control of the party who enters into it. After that, if the officer
fails to follow the further directions of the act with regard to
affixing his affidavit and returning a copy of the contract to the
proper office, the party is not responsible for this neglect.
We do not mean to say that where a parol contract has been wholly or
partially executed and performed on one side, the party performing will
not be entitled to recover the fair value of his property or services.
On the contrary, we think that he will be entitled to recover such value
as upon an implied contract for a quantum meruit. In the present case,
the implied contract is such as arises upon a simple bailment for hire,
and the obligations of the parties are those which are incidental to
such a bailment. The special contract being void, the claimant is thrown
back upon the rights which result from the implied contract. This will
cast the loss of the vessel upon him. A bailee for hire is only
responsible for ordinary diligence and liable for ordinary negligence in
the care of the property bailed. This is not only the common law but the
[95 U.S. 543] general law on the subject. See Jones, Bailm., p. 88;
Story, Bailm., secs. 398, 399; Domat, Lois Civiles, lib. 1, tit. 4, sec.
3, pars. 3, 4; 1 Bell, Com., pp. 481, 483, 7th ed. |