It cannot be doubted, that the true meaning of this clause in the constitution is, that the body upon which the prohibition rests, and which is restrained thereby, is the legislative department. The subject, upon which the prohibition takes effect, is contracts. In this is included every contract relating to property, or some object of value, which confers rights, and which may be asserted in a court of justice. It is immaterial whether the contract be between a state and an individual, or between individuals only. The contracting parties whoever they may be, stand in this respect upon the same ground. The obligations imposed, and the rights acquired by virtue of the contract, cannot be impaired by a legislative act. A law which discharges these obligations, or abrogates these rights, impairs them.

A constitutional act of legislation, which is equivalent to a contract, and is perfected, requiring nothing further to be done in order to its entire completion and perfection, is a contract executed. Whatever rights are thereby created, a subsequent legislature cannot impair. Nor can an obligation created by a constitutional law which is in the nature of an executory contract, and which is supported by a sufficient consideration, be annulled at the pleasure of the legislature. But a statute, though passed by a legislature having constitutional authority to enact it, which implies a contract executory depending upon the further action of the legislature or its agents for its execution, and which is without consideration in fact or in law, may, before its execution, and the existence of any consideration, be repealed. Such a contract does not create rights or duties, which, in legal contemplation, can be impaired. Such has been adjudged to be the true meaning of this clause of the constitution. a

It is obvious therefore, that in every case, where the prohibition is attempted to be applied, the first inquiry is, whether the case be one in which the subject matter is a contract relating to property, or some object of value, and which imposes an obligation capable, in legal contemplation, of being impaired? If it be such a contract, the remaining inquiry is, whether the act of the legislature impairs that obligation? Hence it is a proper subject of a People v. Platt, 17 John 214, 215; Dartmouth College v. Woodward, 4 Wheat. 518; Sturges v. Crowninshield, 4 Wheat. 204.

examination whether the contract be executed, or only executory If the latter, whether it be upon sufficient consideration, proved, or presumed, if it be an act of the legislature which constitutes the contract, it is executed. Has the object of the contract been performed? or, is it a mere executory contract requiring the further action of the legislature, or its agents, to complete its execution? And if the latter, is it voluntary, or upon sufficient consideration? If the contract be one which the legislature has the constitutional power to make, and it be executed, and no further act remains to be done, by the state or its agents, as if a grant of money be made, and the money be delivered, or if it be a grant of land, and the legislative act is, itself, the conveyance, not requiring the execution and delivery of a deed or other instrument, nor any other to be done to complete it, the contract has passed to the form of a grant; it has become a contract executed; and the law in which it originates, cannot be repealed. But if the contract be executory, as if it be a gift of money or land unexecuted, requiring some further act to its completion, as the delivery of the money, or the execution of an instrument of conveyance, and is without consideration in fact, or to be presumed, then, before its completion, and the existence of any consideration, it may be repudiated; the gift may be withheld, and the party who made the promise may revoke it. In this respect, the state and an individual are subject to the same rule. a

Another distinction is found in the particular character of the property, between that which may be affected by legislative action, and that which may not, and more especially between such statutes as are of a retrospective character, and such as are called remedial and prospective. It is hardly questioned, that a retrospective statute which affects and changes vested rights, is founded upon unconstitutional principles, and is consequently inoperative and void.b Judge Cooley, in his valuable work on constitional limitations has well said, "Every man holds all he possesses, & looks forward to, all he hopes for, through the aid and protectio✅ the

a Smith's, com. 384. The Derby Turnpike Co. v. Parks, 10 Conn. 540,Atwater v. Woodbridge, 6 Conn. 230. Osborne v. Humphrey, 7 Id., 340, State of New Jersey v. Wilson, 7 Cranch. 165. Fletcher Peck, 6 Cranch. 13 to 138.

b1 Kent. Com. 455.

laws; but as changes of circumstances, and of public opinion, as well as other reasons of public policy, are all the time calling for changes in the laws, and these changes must more or less affect the value and stability of private possessions, and strengthen or destroy well founded hopes; and, as the power to make very many of them must be conceded, it is apparent that many rights, privileges and exemptions, which usually pertain to ownership under a particular state of the law, and many reasonable expectations, cannot be regarded as vested rights, in any legal sense. In many cases, the courts, in the exercise of their ordinary jurisdiction, cause the property vested in one person to be transferred to another, either through a statutory power, or by the force of their judgments, or decrees, or by compulsory conveyances. If in these cases the court has jurisdiction, they proceed in accordance with the law of the land, and the right of one man is divested by way of enforcing a higher and better right in another." a

But the question, what constitutes due process of law, can be, and frequently is raised in the courts and in judicial proceeddings, as frequently as elsewhere, and the final decision of the court, when jurisdiction is had of the subject and the person, is conclusive in that particular case. It is the conflict of adjudications in the courts on this question, and upon words of nearly similar import, that has seemed to create conflict of opinion, as to the true interpretation of these words.

This constitutional security to the citizen, that his property cannot be taken but by due process of law, or, by the law of the land, extends even to actions at law in the courts. He cannot even be deprived of it by courts, except they obtain jurisdiction of the subject, and of the person of the proprietor. An adjudication by a court, where jurisdiction is not obtained, is void as to property which its judgments assume to affect, and its owner may repudiate their action, defy their powers, and avail himself of his objection at any stage of their proceedings under the judgment, or decree, as well collaterally as otherwise. In such case the proceeding is not by due process of law, nor by the law of the land, and all persons interfering with individual property under such assumed authority render themselves liable as trespassATY,

a Cooley on Const. Lim. 358.

The question of jurisdiction of parties and property, is sometimes determined by the common law, and sometimes by a statute constitutionally enacted. Such statutes affect only the remedy and form of proceeding; but it must be admitted, that the method of acquiring jurisdiction, often seriously affects or impairs the value of this constitutional protection, and the question of jurisdiction is sometimes one of law, and sometimes of fact.

By the statute of this state a jurisdiction over the person and property of a party may be obtained without actual personal service upon him of the process or proceeding by which an action may be commenced against him in the courts, by which, proceedings to judgment may be had, and his property taken under its judgments; and similar statutes are found in most of the other states.

In this state such jurisdiction may be obtained, when the party cannot, after due diligence, be found within the state; in a class of cases enumerated, to wit, when a cause of action exists against him, or, when he is a proper party to an action relating to real property in the state. Then, by an order duly obtained according to the directions of the same statute, a judge of the court may direct the service of the process by a publication of it, in specified public newspapers, for a required period, in the following cases: 1. Where the defendant is a foreign corporation, has property within the state, and the cause of action arose therein. 2. Where the defendant, being a resident of this state, has departed therefrom with the intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with like intent. 3. Where he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action. 4. Where the subject of the action is real or personal property in this state, and the defendant has, or clains a lien, or interest, actual or contingent therein, or the relief demanded consists wholly, or partly, in excluding the defendant from any interest or lien therein. 5. Where the action is for divorce, in the cases prescribed by law.

The right of the legislature to prescribe such substituted notice by publication, and to give to it the effect of personal service of

a Code, § 135.

process in the enumerated class of cases, is with legislative power. They may thus, by a remedial and enabling statute, provide a substituted method of service, basing it upon the necessity of the case. This power has long been acted upon, and recognized as being authorized and justified by the courts, and, as being due process of law. a Common justice requires that a party in cases provided for in the New York statute, should have some mode of giving notice to his adversary. It cannot be admitted, that a party may defeat the ends of justice as against himself, by so removing himself from the power to make personal service, that not even the legislative power is sufficient to provide the means of reaching his property. The practice of service by publication, is free from reasonable objection under the protection of the courts, and has long been held sufficient. b

Under jurisdiction thus acquired, there is no doubt, the private property of one person may, through the instrumentality of the court, and by its judgment or decree, be transferred to another, and this will be held to be due process of law.

No subject, on the question of jurisdiction, obtained under such statutes, has been more prolific of litigation, than that relating to cases of divorce from the bonds of matrimony; raising the question of fact, whether the party applying to have the process of the court issued under such a statute, and served only by publication, is, himself or herself, a bona fide resident within the state in which such process is issued. This question being one of jurisdiction, is always open to the party affected thereby, even in a collatteral action, to dispute it. So that if a party goes to a jurisdiction other than that of his domicile, for the purpose of procuring a divorce, and has residence there for that purpose only, such residence is not bona fide, and does not confer upon the courts of that state or country, jurisdiction over the marriage relation, and any decree they may assume to make, would be void as to the other party.'

a Matter of Empire City Bank, 18 N. Y. 200-215; Rockwell v. Nearing, 35 N. Y. 314.

b Nations v. Johnson, 24 How. U. S. R. 206.

NOTE 1.-A valuable note is found in the work of Judge Cooley on constitutional limitations, page 401, which contains a reference to the adjudications of various states, upon the effect of the service of process in the commencement of