the Constitution. Congress is given the power of controlling navigable waters and yet police regulations by the states in many cases have been found necessary for the protection of life and property.290 The existence of a dual government requires the exercise of forbearance, good faith and a respect for respective rights; the exercise of the police power has already been considered and also that specific exercise of the power under which license fees are imposed upon, in many cases, the agents or instrumentalities of interstate commerce.292 291 § 543. The impairment of contract obligations. The consideration of the interstate commerce clause in connection with municipal action is important in defining powers and regulating their exercise as between sovereigns or their agencies. That clause of the Federal Constitution which prohibits a state from passing any law impairing the obligation of a contract is more important in connection with a determination of the rights which may exist in favor of third parties and which, but for the existence of such a clause, might be impaired or destroyed by municipal action. The contract obligation protected by the Constitution may be one which arises because of certain transactions between the public corporation itself and some other party 293 to 200 Harmon v. City of Chicago, 110 Ill. 400. An ordinance is not unconstitutional as in violation of the interstate commerce clause which prohibits steamboats or tugs in the river and harbor of Chicago from emitting dense smoke and further terms such smoke as a nuisance. People v. Williams, 64 Cal. 498; Robertson v. Com., 101 Ky. 285. 291 Chap. V, ante. 292 Sections 398 et seq., ante; Carson River Lumbering Co. v. Patterson, 33 Cal. 334. 293 Nottage v. City of Portland, 35 Or. 539. There is no contract express or implied by which a city must return an invalid assessment paid under protest. "Again it is claimed that when the plaintiff paid the assessment by coercion and under protest the law created an implied contract on the part of the city to return it to her if wrongfully collected and that the section in question is, therefore, void because it impairs the obligation of such a contract and deprives her of a vested right of action. But there was no contract on the part of the city to return the amount of the invalid assessment paid by the plaintiff. Her right to recover was based on an informality in the proceeding and the legislature may lawfully take away such right because a party has no vested right in a defense or right of action based upon an informality not af fecting his substantial equity. This precise question was determined by the supreme court of Pennsylvania the transaction or altogether between third parties. 294 The state or its agencies may enter into contract obligations 295 or grant franchises or charters which partake of the nature of a contract 296 in Grim v. Weissenberg School Dist., 57 Pa. 433. In that case the plaintiff had paid an illegal tax under protest and in an action to recover it back, the school district set up as a defense the provisions of an act of the legislature legalizing and making valid such tax. It was claimed there as here, that the act was unconstitutional because at the time of its passage the plaintiff had a vested right to recover from the district the money which he had been compelled to pay without authority of law and this vested right the legislature could not devest. But Mr. Justice Sharswood, speaking for the court, said in answer to this position: 'If an act of assembly be within the legitimate scope of legislative power, it is not a valid objection that it devests vested rights. There is no clause either in the constitution of the United States or of this commonwealth, which prohibits retrospective laws. The legislature cannot impair the obligation of a contract or pass an ex post facto law for both these are expressly forbidden. But an ex post facto law is one which makes an act punishable in a manner in which it was not punishable when it was committed. Ex post facto laws relate to penal and criminal proceedings, and not to civil proceedings which affect private rights retrospectively. Retrospective laws and state laws devesting vested rights, unless ex post facto, or impairing the obligation of contracts, do not fall within the prohibition contained in the constitution of the United States, however repugnant they may be to the principles of sound legislation. *** All acts curing irregularities in legal proceedings necessarily devest vested rights of the parties by closing the mouths of those who could otherwise avail themselves of such irregularities to escape from the fulfillment of what is a moral obligation and but for the irregularity would be a legal liability. To deny the validity of such laws would be to run the plowshare through hundreds of titles which are founded and repose in security upon them.'" 294 Lindsay v. City of Anniston, 104 Ala. 257, 16 So. 545, 27 L. R. A. 436. The enforcement of an ordinance regulating acts and the solicitation of patronage by agents of transfer companies does not impair the obligation of a contract between a transfer company and the depot company, made prior to the passage of the ordinance, which gives to the transfer company the exclusive privilege of entering the trains and premises of the depot company to solicit patronage. 295 Bietry v. City of New Orleans, 24 La. Ann. 21; Chapman v. City of Lowell, 58 Mass. (4 Cush.) 378; Neill v. Gates, 152 Mo. 585. 296 City of Chicago v. Sheldon, 76 U. S. (9 Wall.) 50; Cleveland City R. Co. v. City of Cleveland, 94 Fed. 385. "The constitution of Ohio has empowered the legislature to confer upon the city of Cleveland the authority to operate lines of railway through its streets. Acting under this delegated power the city council, from time to time, has * and which cannot be impaired by subsequent action. The subject has been considered in those sections relating to contracts,297 and will be further discussed under the subject of franchises. The inviolability of a contract or a contract obligation is the basis of a well governed and civilized community. Public corporations should not be exempt from performing their contracts; the fact that they are governmental agents does not relieve them of this obligation. The enforcement of this principle in respect to the contracts of public corporations is too often ignored. As said by the supreme court of the United States, "Its character as a municipal corporation does not affect the nature of its obligations to its creditors.' '298 § 544. Definition of "law." The Federal Constitution employs the word "law" in stating the prohibition, and its meaning in connection with action impairing or destroying contract rights has been questioned at times. although the word is definite and should be easily understood. It made grants to the street railroads, conferring privileges upon them and at the same time prescribing the terms and conditions under which such lines should be located and operated. Among the powers so vested in the city was the right to prescribe the rate of fare to be collected during the life of each grant. The city, acting under this general authority SO conferred, passed ordinances at different times pertaining to the street railways which make a printed volume and are in evidence before the court. These ordinances, granting sometimes original and sometimes additional authority, were accepted by the street railway companies; and these acceptances on the one side, and grants made with conditions on the other, became a contract between the parties, which could not be annulled or amended without the consent of both parties. These ordinances SO molded into contracts under the legislative power herein before referred to, are, in effect, laws of the state of Ohio, and, therefore, are without the inhibition of the fourteenth amendment to the constitution of the United States, which is directed quite as pointedly to the legislative power of the state or municipality as to the executive or judicial." Cincinnati St. R. Co. v. Smith, 29 Ohio St. 292; Cincinnati & S. R. Co. v. Village of Carthage, 36 Ohio St. 631; City of Columbus v. Columbus St. R. Co., 45 Ohio St. 104; City of Ashland v. Wheeler, 88 Wis. 607. See, also, sections, post, on exclusive franchises. 297 Sections 246 et seq., ante. 298 Meriwether v. Garrett, 102 U. S. 472. See, also, Cincinnati & S. R. Co. v. Village of Carthage, 36 Ohio St. 634. is commonly in those cases where contract rights have been impaired or destroyed by the public corporation that the doubtful application of the word "law" to the particular action which accomplished certain illegal and injurious results has been raised.. The law breaker or the dishonest person is usually a quibbler and seeks to avoid the results of his acts or justify his conduct by subtile and technical arguments or reasons. This term "law" has been defined as "Any enactment from whatever source originating, to which a state gives the force of law is a statute of the state within the meaning of the clause cited." 299 It would include a constitutional provision, an act, ordinance or resolution, a judgment of a court of competent jurisdiction or, in short, any action whatever its character by a state or any of its subordinate agencies to which that state gives the force and effect of a law,300 using the term in its broad sense as a command or rule of action laid down by a superior and which an inferior is bound to obey. § 545. Ordinances; reasonable or unreasonable. In a preceding section,301 the statement has been made that an ordinance, to be valid, must not be unreasonable. The determination of this question, when necessary, is for the courts to decide and they will consider all of the circumstances and conditions of the necessity for the passage of the ordinance or regulation.302 Its existence has raised an important question in respect to the power of a legislative body in passing laws. Where the element 299 Swift v. Tyson, 16 Pet. (U. S.) 18; Chamberlain v. City of Evansville, 77 Ind. 550; Leavenworth County Com'rs v. Miller, 7 Kan. 501; Budd v. State, 22 Tenn. (3 Humph.) 490; State v. McCann, 72 Tenn. (4 Lea) 7; 1 Bl. Comm. 14; 1 Kent, Comm. 447. 300 District Tp. of Dubuque v. City of Dubuque, 7 Iowa, 281; Durkee v. City of Janesville, 26 Wis. 703. 301 Section 537, ante. 302 State v. Boardman, 93 Me. 73, 46 L. R. A. 750; City of Brownville v. Cook, 4 Neb. 101. Where the court say in passing upon an ordinance for the punishment of those who willfully or mischievously meddle with personal or real property that "a reasonable presumption is that the people of cities and villages require more stringent regulations for their government than do those of more sparsely settled districts of the state." Long v. Jersey City, 37 N. J. Law, 348; City of Lead v. Klatt, 11 S. D. 109. But see Clason v. City of Milwaukee, 30 Wis. 316, which holds that the question of whether an ordinance was reasonable should have been submitted to the jury upon the evidence produced. 303 of reasonableness is involved, the weight of authority seems to be to the effect that the enactment of a law by a legislative body is conclusive on this point and precludes an investigation by the judicial branch of the government." Those cases which hold to the contrary of this general rule, it seems to the author, are sustained by the better reason. A legislative body is not so far above reproach, superior in intelligence or fair and unprejudiced in its conclusions or conservative in its action as to render it infallible. 304 Municipal legislative action may proceed from authority expressly granted; that implied because necessary for the exercise of an express power, and, finally, that implied because reasonably necessary and convenient to corporate existence and the performance of corporate duties.305 In regard to action taken under the first class of powers, the rule seems to be universally that which applies to the action of all legislative bodies.306 In respect to ac 303 Town of Greensboro v. Ehrenreich, 80 Ala. 579; Waters V. Leech, 3 Ark. 110; In re Ah You, 88 Cal. 99, 11 L. R. A. 408; City of Jacksonville v. Ledwith, 26 Fla. 163, 9 L. R. A. 69; Cosgrove v. City of Augusta, 103 Ga. 835, 42 L. R. A. 711; Ex parte Gregory, 20 Tex. App. 210. 304 Com. v. Steffee, 70 Ky. (7 Bush) 161; Pieri v. City of Shieldsboro, 42 Miss. 493; Borough of Freeport v. Marks, 59 Pa. 253. 305 Champer v. City of Greencastle, 138 Ind. 339, 46 Am. St. Rep. 390, 24 L. R. A. 768; Burg v. Chicago, R. I. & P. R. Co., 90 Iowa, 106; State v. Morris, 47 La. Ann. 1660; City of Baltimore v. Porter, 18 Md. 284; Town of Trenton v. Clayton, 50 Mo. App. 535; Southwark Com'rs v. Neil, 3 Yeates (Pa.) 54. 300 Huesing V. City of Rock Island, 128 Ill. 465; Skaggs v. City of Martinsville, 140 Ind. 476, 39 N. E. 241, 33 L. R. A. 781; Shea v. City of Muncie, 148 Ind. 14, 46 N. E. 138; State v. Hammond, 40 Minn. 43. "The charter of the city sixteenth, to prevent, open or notorious drunkenness and obscenity in the streets or public places of said city.' *** In respect to preventing and punishing lewdness, indecency, or obscenity, the specification above quoted,and it is the only one including that subject, refers only to acts or conduct in the streets or public places of the city; only to such as may affect the public peace, decency and good order; and does not authorize punishment for private conduct however reprehensible it may be in |