"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)]
Murray v. City of Charleston, 96 U.S. 432,
1877 WL 18506 U.S. (1877)
"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)]
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)]
"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]
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]
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.
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)]
Legal Tender Cases, 79 U.S. 457,
1870 WL 12742 (1870)
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.
[
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.
[Clark
v. United States, 95 U.S. 539 (1877)]
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