Lowell W. Tinker v. Philip J. Van Dyke et al.

cases, where the citizens of one State have rights of action against those of another, under laws creating liabilities for corporate premises, will make a fearful inroad upon the jurisdiction of the Federal judiciary.

A very large percentage of all the commerce, manufacturers and trading of the country is coming to be done by State corporations; the citizen relies in large degree upon the security afforded by those obligations imposed upon officers and shareholders for an omission of their duty. To call this obligation a penalty is to exclude the jurisdiction of the Federal courts by a mere name. We can see no distinction in principle between a State statute which should repeal a provision in a railroad or bank charter, rendering liable directors and shareholders if they incurred debts beyond the amount of the capital paid in, or failed to make proper scrutiny and publicity of the accounts of their corporation, and a law divesting such a liability, unanimously held to be unconstitutional in 2 Wall., Hawthorne v. Calef.

In this case a railroad charter provided that shareholders should be liable to the extent of their shares for the debts of the corporation, if there was a deficiency of corporate assets. This provision was repealed anterior to the bringing of an action; Held, it violated the obligation of the contract implied between the shareholders and the creditor growing out of the statute and their reciprocal action under it. In this case the liability was fully statutory; there was no liability at common law on the part of the corporators for the debts of the corporation.

The court cites as analogous, Woodruff v. Trapnall, 10 How. 190, in which it was held that the repeal of a law which made bills issued by a bank receivable in payment of State debts, could not deprive a citizen of the liberty of so applying them. Corning v. McCullough, 1 Coms. 47, is also approbated, which quite fully accords with the principles stated.

Lowell W. Tinker v. Philip J. Van Dyke et al.

Between the statute involved in 2 Wal. 10, and those which the State judgments cited have held to be pure penalties, and therefore cognizable only in the courts of the State which enacts them, we see no such difference in principle as to cause a Circuit Court of the United States to refuse to entertain an action upon the ground that one is penal, and to entertain it under the other because it is a contract.

To erect such a distinction into a rule of law, would enable State legislatures, by the mere form and phraseology of a statute, to create property rights of which the Federal courts could take no cognizance, and thus do indirectly, what, in Ins. Co. v. Morse, 20 Wall. 445, the Supreme Court said they could not do directly.

This liability constitutes a part of the law of the contract. See, also, 21 Wall. 252, 233, Ochiltree v. R. R. Co.

The rule so frequently quoted in the books that which is created by statute may be taken away by statute was also largely relied upon at the bar. We remarked during the argument, and now repeat, there never was any such rule administered anywhere.

When remedies are created, penalties enacted, crimes defined and punished, political regulations established by statute, they may be abrogated by their appeal.

When repealed, the presumption is in favor of a retroactive application. It is a misdescription of the principle involved in these classes of cases, to say the right of action is gone because they are statutory.

They are gone on account of the nature of the statute, the right regulated, and the persons to be affected; because, in these peculiar instances, and other analogous cases, statutory rights are abrogated by repeal of the law, it by no means follows that all other statutory rights of a different character, creating substantial property rights, upon which business

Lowell W. Tinker v. Philip J. Van Dyke et al.

transactions between citizen and citizen are vested, fall in the same circumstances.

Large numbers of the latter class are protected by various constitutional inhibitions-Federal and State.

When you pass beyond the protection of the Constitution, and arrive at those vested rights which involve substantial property values, then, although the abstract proven may exist to destroy them, the presumption will be that the Legislature did not intend to do so, unless it expressly so

declares.

From the multitude of cases so declaring, we cite in addition to those already referred to, only the following: Dash v. Van Kleek, 7 J. R. 477, which contains a full discussion by most able judges, and reviews the elementary writers and decisions down to their date.

The duty of construing all laws prospectively, where rights are affected, is strongly insisted upon; and, see 4 S. & R. 401; 2 Cranch, 272.

No principle is more familiar in the Federal jurisprudence. It was also argued that, however courts might deal with affirmative provisions of law which prescribe new rules of conduct, and create new obligations, applying them prospectively only when such appeared to be the intention of the law-maker, that no such liberty of interpretation existed when a statute was unconditionally repealed.

We see no difference whatever, in principle, between the two cases, deeming it, in all instances, a mere matter of construction, depending upon the subject matter and language of the law. We should have thought it unworthy of consideration, but for the answer made by Justice CowEN, in Butler v. Palmer, 1 Hill, 324, to some judgments cited in favor of a wholly prospective application of a law in judg ment before him.

He does distinguish them by saying they are cases of posi

Lowell W. Tinker v. Philip J. Van Dyke et al.

tive enactments, and not unconditional repeals. If we might impute to that learned judge the absurdity of saying, that in no case could the Legislature repeal a clause in a statute, saving all rights accrued under it, his language, literally interpreted, might be read to mean that in every case of repeal, irrespective of circumstances, the courts are forbidden to confine its effects to future cases only. He cites many old English judgments in reference to political, penal, remedial and criminal statutes, in reference to which such a rule of presumption is rightfully declared; but all that is meant in the judgment, is that in case of a repeal, stronger language and more persuasive circumstances are required to authorize a limited application than will produce the same effect in reference to a new affirmative enactment.

The judgment, instead of being at war with our own, when rightfully understood, is an argument to show that in every instance the legislative will is to be ascertained and executed.

Doyle v. Clark.

DOYLE v. CLARK

CIRCUIT COURT-EASTERN DISTRICT OF MICHIGAN-MARCH TERM, 1876.

DOMICIL CHANGE OF RESIDENCE.

1. DOMICIL-INTENTION AND FACT.-Declarations, which are part of the res gesta, are admissible in evidence to show intention as a general rule, but admissions of declarations either written or verbal in connection with acts done, and giving character to such acts, depend much on circumstances and upon the nearness or distance of time to the declarations made and the acts done.

2. EVIDENCE. Instances are numerous where the declarations of a person made at the time of changing a residence have been received as evidence of an intention to make the change permanent, and to rebut the presumption that it was for temporary purposes only.

3. At the same time, the admissibility of such declarations is somewhat in the discretion of the court, and subject to another general rule, viz.: that a person will not be allowed by his declarations to make out a case for himself.

On motion to remand.

Plaintiff, a citizen of Illinois, began suit against the defendant in the Superior Court of Detroit. This was removed to this court and tried on the 24th day of June. On the trial plaintiff submitted to a non-suit, and two days thereafter began this suit for the same cause of action in the Superior Court of Detroit, which was also removed upon the petition of the defendant setting forth that plaintiff was a citizen of Illinois. Motion was made to remand on the ground that at the time the suit was commenced plaintiff was a citizen of this State, and this court had no jurisdiction.

Atkinson, for the plaintiff.

Wisner, for the defendant.