nances. This militates against the likelihood that the court had in mind a situation in which perpetual privileges derived from the state could be terminated by acceptance of limited privileges from a city.

The patent fact that the obligation-of-contracts clause "does not in terms restrict Congress or the United States" stood as a barrier to a contention of a state, in New York v. United States,' that the federal Transportation Act violated that clause. Nevertheless, some federal interferences with contracts have been held to violate the due-process provision of the Fifth Amendment. Mindful of this, New York contended that she and her people were deprived of property without due process of law by a federal command that certain rates should be higher than the maximum limit fixed by contract between the state and the railroad. The federal prescription was sustained as a proper regulation of interstate commerce, and the conflicting state prescription was declared to be precluded thereby. The protest based on the franchise contract was disposed of by quoting from an earlier opinion the declaration that "anything which directly obstructs and thus regulates that commerce which is carried on among the states, whether it is state legislation or private contracts between individuals or corporations, should be subject to the power of Congress in the regulation of that commerce."

So also dismemberments of combinations found to be in violation of the Sherman Law may be commanded notwithstanding the resulting wrench to contracts. An instance of this appears in Continental Insurance Co. v. Reading Co., in which bondholders secured by a general mortgage covering coal mines and railroads were subjected to a sundering of the securities whereby some bondholders had a lien only on the mines and others a lien only on the roads.

The principle that the peculiar protection of the obligation-ofcontracts clause is confined to contracts and does not include vested

A general discussion of retroactive legislation appears in Elmer W. Roller, "The Impairment of Contract Obligations and Vested Rights," 6 MARQUETTE L. REV. 129. In 16 ILL. L. REV. 539 is a note on the tax exemption in the charter of the Illinois Central; in 20 MICH. L. REV. 358 a discussion of the charter of a corporation granted prior to the Dartmouth College Case.

7258 U. S.

-, 42 Sup. Ct. 239 (1922), 21 MICH. L. REV. 178.

rights generally is reasserted in Crane v. Hahlo, in which a statutory right to compensation for injury to abutting property caused by change of grade was said "to have nothing in the nature of a contract in it." As put by Mr. Justice Clarke, the word "contracts" in the clause in question “is used in its usual or popular sense as signifying an agreement of two or more minds, upon sufficient consideration, to do or not to do certain acts." Retroactive interference with vested rights, other than contracts, may, however, constitute a denial of due process. The change complained of by the property owner in this case cut off the opportunity for judicial review on the question of damages and made the administrative review final except in cases of lack of jurisdiction, fraud or wilful misconduct. This was sustained on the principle that "no one has a vested right in any given mode of procedure * * *, and so long as a substantial and efficient remedy remains or is provided due process is not denied by a legislative change."10

Among matters of procedure are statutes of limitation. Atchafalaya Land Co. v. F. B. Williams Cypress Co." invoked the rule that "such statutes are valid if they allow a reasonable time after their enactment for the assertion of an existing right or the enforcement of an existing obligation," and so sustained a statute which cut off suits to annul land patents after six years from their issue, with a proviso that in the case of patents issued prior to the statute there should still be six years in which to sue. This decision rendered it unnecessary for the court to decide whether the defeated party had acquired a vested right to call for a conveyance of the lands in question or whether a right of a contractual nature arose from a statute providing for the conveyance to a board of commissioners, on request, of lands belonging to the state.

9258 U. S., 42 Sup. Ct. 214 (1922), 21 MICH. L. REV. 332, 336.

10 In 70 U. PA. L. REV. 126 is a discussion of Bank of Minden v. Clement, 256 U. S. 126, 41 Sup. Ct. 408 (1921), 20 MICH. L. REV. 383, holding that a statute exempting insurance policies from attachment cannot be applied to debts created prior to the statute when under the law then existing no such exemption obtained. In 6 MINN. L. Rev. 330 is a note on a case denying power to change the law requiring warrants to be paid in the order of presentation.

11 258 U. S. —, 42 Sup. Ct. 284 (1922), 21 MICH. L. REV. 332. See 31 YALE L. J. 785.

Without the aid of the obligation-of-contracts clause it was held, in Forbes Pioneer Boat Line Co. v. Board of Commissioners, that a right to recover tolls held by the state court to be unlawfully charged could not be defeated by a subsequent statute attempting retroactively to validate the collection. The decision of the highest state court sustaining the right of recovery was rendered on a demurrer to the declaration and the case was pending for trial in the court below when the legislature passed the validating statute to which the highest state court wrongfully gave effect. The opinion of Mr. Justice Holmes does not make clear whether the right of the plaintiff was thought to have vested upon its enforced payment of the tolls or upon the first decision of the highest state court that the payment had been wrongfully demanded.

A somewhat similar issue whether a litigant had a vested right at the time of the statute complained of arose in Western Union Telegraph Co. v. Louisville & N. R. Co.13 Here, after condemnation proceedings in the federal district court had resulted in a decree of condemnation and a payment of the damages into court, the circuit court of appeals had set aside the judgment and remanded the case to the district court for a new trial upon the question of compensation and for a further hearing upon the question of forbidden interference in certain specific places by the wires of the telegraph company with the right of way of a railroad. While the case was thus awaiting retrial the state legislature repealed the statute under which the right of condemnation was claimed. In giving effect to this statute to defeat the condemnation proceedings, Mr. Justice McKenna declared:

"Our conclusion, therefore, is that as the state could have withheld the power from telegraph companies to condemn the right of way of railroad companies, the state could withdraw the power before its exercise, and it could not be exercised before the conditions of condemnation were established and adjudicated, and this not preliminarily or dependently, but in final and unreviewable determination. To this situation the condemnation in the present case had not attained. The grant of power to the telegraph company, therefore, was subject to legislative control, and the Act of March.

12 258 U. S. -, 42 Sup. Ct. 325 (1922), 21 MICH. L. REV. 331.

14, 1916, was not an 'interference by the legislature with judicial proceedings in court' and does not offend the Fifth or Fourteenth Amendments."

VII. CRIMINAL PROSECUTION AND PUNISHMENT14

A. Jurisdiction of the Trial Court.

While the celebrated Mr. Ponzi was serving a sentence for violating a federal statute he was with the consent of the federal authorities about to be put on trial in the state court for violating a state statute. By a writ of habeas corpus he sought to secure an adjudication that the state court had no jurisdiction to try him while thus in federal custody. In disappointing his hopes, Chief Justice Taft in Ponzi v. Fessenden15 observed that so long as he could be personally present in the state court and have "full opportunity to make his defense exactly as if he were brought before the court by its own officer," the contention that he was in the exclusive jurisdiction of the federal authorities and therefore could not be within the jurisdiction of the state authorities "is a refinement which if entertained would merely obstruct justice." The disadvantages of delay were pointed out as a basis for the conclusion that "if a plea of guilty and imprisonment for one offense is to postpone trial on many others,

14 For discussions of searches and seizures and self-incrimination see notes on Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261 (1921), 20 MICH. L. REV. 391, 394, in 16 ILL. L. REV. 392; 20 MICH. L. REV. 93; 70 U. PA. L. REV. 55; and I Wis. L. REV. 439; and notes on Burdeau v. McDowell, 256 U. S. 465, 41 Sup. Ct. 574 (1921), 20 MICH. L. REV. 390, 398, in 22 COLUM. L. REV. 77; 35 HARV. L. REV. 84; 16 ILL. L. REV. 393; 7 Iowa L. B. 183; 6 MINN. L. REV. 70; 20 MICH. L. REV. 353; 70 U. PA. L. REV. 54; and 31 YALE L. J. 335. The general problem raised by the commingling of these two inhibitions is considered in John H. Wigmore, "Using Evidence Obtained by Illegal Search and Seizure," 8 A. B. A. JOUR. 479; and in notes in 10 CALIF. L. REV. 165; 35 HARV. L. REV. 470; 20 MICH. L. REV. 108; 6 MINN. L. REV. 245, 602; and 31 YALE L. J. 518. The requirement of a warrant for seizure of liquor is discussed in 8 Va. L. Rev. 299, 620; the legality of a warrant, in 10 GEORGETOWN L. JOUR. (No. 2) 107; the right of the police to take photographs, in 10 CALIF. L. Rev. 264; the use of confessions obtained through duress, in 8 VA. L. REV. 527; and compulsion to answer when the only possible incrimination is in a foreign jurisdiction, in 22 COLUM. L. REV. 283.

15 258 U. S. - 42 Sup. Ct. 309 (1922). See 36 HARV. L. Rev. 221.

it furnishes the criminal an opportunity to avoid the full expiation of his crimes."16

B.

Substantive Elements in Crime Charged.

An objection that “punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law" was declared by Chief Justice Taft in United States v. Balint to have been considered and overruled in an earlier case. In giving illustrations he added:

"Many instances of this are to be found in regulatory police measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se. *** So, too, in the collection of taxes, the importance to the public of their collection leads the legislature to impose on the taxpayer the burden of finding out the facts upon which his liability to pay depends and meeting it at the peril of punishment. *** Again, where one deals with others and his

16 For a consideration of the requisites for extraditing a person under a treaty with England, see Collins v. Loisel, 259 U. S. -, 42 Sup. Ct. 469 (1922). The right to try a man mistakenly seized by the army on a bandit hunt in Mexico is discussed in 35 HARV. L. REV. 618; power to try for a different offense than that for which the prisoner was extradited from a foreign country, in 31 YALE L. J. 443. Questions of interstate rendition are dealt with in notes in 20 MICH. L. Rev. 449, 791, on trial of person brought into the jurisdiction illegally; in 6 MINN. L. REV. 585 on trial for a different crime than that for which rendition was obtained; in 21 COLUM. L. REV. 709 on scope of inquiry in habeas corpus proceedings by fugitive in asylum state; in 35 HARV. L. REV. 768 on liability to civil action after return to demanding state; and in 6 MINN. L. REV. 75 on power of governor to release prisoner serving sentence for rendition to another state on condition that he should be returned if not convicted there.

17 258 U. S., 42 Sup. Ct. 301 (1922). See 20 MICH. L. REV. 911. The Harrison Act was applied in United States v. Behrman, 258 U. S. — 42 Sup. Ct. 303 (1922), 21 MICH. L. REV. 299, note 69, to a prescription by a physician of an extraordinary dose, though three justices thought it resulted in making acts a crime "without a word of warning." For interpretations and applications of a federal statute touching tampering with war savings certificates see United States v. Sachs, 257 U. S. -, 42 Sup. Ct. 38 (1921), and United States v. Janowitz, 237 U. S. -, 42 Sup. Ct. 40 (1921). In the latter case the acts made criminal were violations of regulations prescribed